DALTON J.—Ranhami v. Kirihami.
1932Present: Dalton J.
RANHAMI et al. v. KIRIHAMI et dl.
43—C. R. Kurunegala, 5,705.
Kandyan Law—Binna-married daughter—Leaving mulgedera after father’sdeath—No forfeiture.
Under the Kandyan Law a binna-married daughter does not forfeither share in the paternal inheritance by leaving the mulgedera after herfather’s death.
PPEAL from a judgment of the Commissioner of Requests, Kurune-gala.
F- J. Soertsz, for plaintiffs, appellants.
September 23, 1932. Dalton J.—
The plaintiffs brought this action for a declaration of title to anundivided § part of two lands Hitinawatta and Kongahakumbura.Upon the issue framed in the case their claims depended upon theirbeing able to establish that one Ukku Menika had never forfeited herrights in the lands in question. Plaintiffs had purchased this § sharefrom descendants of Ukku Menika, who, although married in binna,had, according to the defence, subsequently forfeited her rights byseverance from the mulgedera.
The trial Judge found on this issue in favour of the defendants, andaccordingly dismissed plaintiffs’ action. From this order they appeal.
The original owner of the land was Hetuhamy, Ukku Menika beingonq of his children by his first marriage. It is not disputed that Hetu-hamy during his lifetime divided these lands between the children ofhis two marriages, Ukku Menika and Appuhamy, her brother beingallotted the western half of Hitinawatta and the northern half of Kon-gahakumbura, and the children of the second marriage the remainingportions. It is proved that Ukku Menika was married in binna toManilhamy, a man of Manahettiya, a mile or two away from her ownvillage. For five years she lived at her mulgedera, but after her father’sdeath she went to live at her husband’s village, where she remaineduntil her death about fifteen years later. During those fifteen years,however, the first defendant admits she and her children used to visither native place ten or twelve times a year. The plaintiffs’ case isthat those visits were for the purpose of obtaining her share of producefrom the lands, and keeping up her connection with the mulgedera.The first defendant, son of her brother Appuhamy, however, deniesthat she ever came to get any produce nor did she ever visit them onthe occasions she came to the village. He explains the visits by statingthat she used to live on these occasions at the Ganaratchi’s house whereone of her children was living, owing to a quarrel between Manilhamy
DALTON J.—Ranhami v. Kirihami.
and Appuhamy. These visits to her village are not referred to by thetrial Judge in his Judgment. On the question of her taking the produce,however, although he describes the evidence of both sides as of theusual indecisive character, he comes to no definite conclusion but merelystates that he finds that of the plaintiffs as less credible. With theevidence of the plaintiffs who produced deeds to show that Appuhamy,the defendants, and one of their sisters had donated and mortgagedshares of part of one of the lands in dispute, the trial Judge does notdeal. If it be presumed they were in these deeds dealing with the wholeof their interest in the land in question, the fact that they only dealtwith interests in £ of the land, would support plaintiffs’ case, that UkkuMenika retained her rights in the other quarter, she and her brotherAppuhamy having received half of the land on the division by herfather already referred to. Although this evidence was given by theplaintiffs for the purpose of suggesting that Appuhamy and the de-fendants recognized Ukku Menika’s interests in the lands, no attemptwas made by plaintiffs to ask the first defendant if he could explainthese deeds on any other basis. In the absence of any evidence on thepoint one would not be prepared to assume that the parties were dealingwith the whole of their interests in the deeds produced. This and oneor two other matters might well have been further elucidated in thelower Court.
There is no doubt as to Ukku Menika’s binna marriage. She didnot leave the mulgedera, where she resided for five years, until afterher father’s death. When her paternal inheritance therefore devolvedupon her, there is no question that the binna marriage still subsisted.This is not the case of a daughter married in binna quitting her parents’house and going out to live in diga, before her parents’ death, as referredto by Sawers. (Digest p. 3; Madder’s Kandyan Law, p. 451.) The onusof proving that Ukku Menika forfeited her rights in the lands inheritedfrom her father lies upon the defendants. I have not had the benefitof hearing counsel on their behalf, as they have not appeared in theappeal. It seems to me, however, they have not discharged the onuswhich lies upon them. The District Judge, in support of his conclusionthat Ukku Menika forfeited her rights to her father’s land, relies on thethree cases cited by Modder in his Kandyan Law at p. 442, s. 247. Thefirst case is the case from Sawers, p. 3, to which I have already referred.The second case is one of a binna-married daughter who is childlessgoing out in diga after her father’s death. The authority states underthese circumstances she would have no “permanent” right to anyportion of her father’s landed property, but it is not stated what herrights would be if she had children. The third case is that of a binna.marriage where there are children, and husband and wife leave theresidence of the wife’s father apparently during the father’s lifetimewithout leaving a child behind. None of these cases is applicable here.
The second case above cited from Modder, upon which the trialJudge relies, is taken from Armour’s Kandyan Law, p. 60. Part onlyof section 9 of Armour is quoted by Modder. That section deals withthe rights of children married in binna to their father’s t estate. Afterreferring to Sawers where he deals with a daughter married in binna
Annamaly Chetty v. Thornhill.
who leaves her father’s house during his lifetime to go and live in diga.Armour continues : —.
“ But the binna daughter will not forfeit her interests in her father’sestate by quitting her father’s house subsequent to his demise, andalthough she then went and settled in diga she will not be debarredfrom participating with her brother and sister in their father’s estate.And in the event of her death, if she left issue, a son for instance bornduring the period of her binna coverture, that son will succeed to hershare of the said estate. And although the said binna daughter'sson had quitted his maternal grandfather’s house and settled else-where in binna, he will not thereby forfeit to his maternal uncle thatshare of his maternal grandfather’s estate which he was entitled toin right of his mother
Applying the law there set out, Ukku Menika would not forfeit herinterests in her father’s estate under the circumstances I have set out.That is the only issue that has to be answered. The further circum-stances not denied by the defendants, the frequent visits by UkkuMenika to her village after her father’s death, the leaving of one of herchildren in her village although not in the mulgedera (for reasons whichdefendants explain), and the deeds by Appuhamy and the defendantsto which I have already referred, all to my mind, further supportplaintiffs’ case that there was no severance on the facts apart fromthe law.
The defendants have failed to show that Ukku Menika forfeited herright to a share of her father’s estate by abandonment of the mulgedera,and therefore the issue should have been answered in the negative.
The appeal is allowed,' and the decree dismissing plaintiffs’ action is*set aside. They are declared entitled to an undivided § share of the landsset out in the schedule to the plaint. They are entitled to costs of suitand costs of this appeal.