128-NLR-NLR-V-49-EMI-NONA-et-al.-Appellants-and-SUMANAPALA-et-al.-Respondents.pdf
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JAYETILEKE SJP.J.—Emi Nona v. Sumanapala.
1948 Present:Jayetileke S.P.J. and Canekeratne J.
EMI NONA et al., Appellants, and SUMANAPALA el al.,
Respondents.
C. 4—D. C. (Inty.) Avissawella, 272.
Kandyan Law—Marriage—Woman conducted to husband's house—Dig a—Reacquisition of binna rights—Nature of evidence required.
Where a Kandyan woman after marriage is conducted to her husband’shouse and lives there, the marriage is one in diga. Evidence that thereaftershe visited her parents from time to time and stayed for some time with them,that she went to her parents’ house for her confinement and attended on herfather during his last illness is insufficient to establish a re-acquisition of binnarights.
Appeal from a judgment of the District Judge, Avissawella.
H. V. Perera, K.C., with E. B. WUcramanayake, for the 1st and 5threspondents, appellants.
N. E. Weerasooria, K.C., with U. A. Jayasundere and S. E. J. Fernando,for the 2nd and 4th petitioners, respondents.
Cur. adv. vult.
June 2, 1948. Jayetileke S.P.J.—
Two questions arise for decision in this case. (1) Whether the 2ndand 3rd respondents were married in diga. (2) If so, whether theyre-acquired binna rights.
Both respondents were married under the Marriage RegistrationOrdinance (Cap. 95) and the certificates of marriage are of no assistanceas to whether they intended to marry in diga or in binna.
Armour in his well-known book on Kandyan Law says at p. 5 :
“ The word diga from di, root da, to give, is, according to somescholars, a derivative from dirga, long, the bride being sent away toa distance, that is to her husband’s house. The conducting of awife to, and the living in the husband’s house or in any family residenceof his, or if he does not own a house and lands, the taking her as hiswife and the conducting away from her family to a place of lodgingconstitutes a diga marriage. The predominant idea is the departureor removal from the family or ancestral home. This is of the samenature as marriages among Europeans and is the more common of thetwo marriages. A plurality of daughters in a family necessitates thismode of marriage with regard to the majority of them, the commonproperty being too limited in extent to be enjoyed by a numerousfamily. The marriage of the daughters and their departure from theancestral residence generally operate a forfeiture of the inheritanceand thereby reduce the number of the shareholders.”
In Kalu v. Kiri Howwa1 Lawrie J. said :—
“ The law as to rights of daughters married in binna or in diga hasnot been changed, and the old disability still attaches to the act of1 (1892) 2 C. Li. Rep. atp. 55.
JA YETILEKE S.P.J.—Emi Nona v. Sumanapala.
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being conducted from a father’s house by a man and in going •with
him to live as his wife in his house
In Menikhamy v. Appuhamy 1 de Sampayo J. said :—
“ It is ‘the going out in diga ’ that works the forfeiture; that isto say the woman should be conducted by or go out to live with aman as his wife …. But the forfeiture under the Kadyan lawwas not based upon any circumstance of disgrace to the family, butrather upon the primitive idea of severance of family ties involved ina woman going out, and becoming as it were, a member of the husband’sfamily ”.
In Punchi Menika v. Appuhamy 2 Wood Renton 'J. said:—
“ The general rule undoubtedly is that when a woman marries indiga, that is to say, when she is given away, and is according to theterms of the contract, conducted from the family house or mulgedera,and settled in that of her husband, she forfeits her right to inheritany portion of her father’s estate. But this forfeiture was an incident,not so mush of the marriage, as of the quitting by the daughter of theparental roof to enter another family ”.and de Sampayo J. said :—
“ The point to be kept in view in all cases, I think, is that the essenceof a diga marriage is the severance of the daughter from the father’sfamily and her entry into that of her husband and the consequentforfeiture of any share in the family property ”,
The evidence in this case shows that both respondents were conductedto the houses of their husbands soon after they were married and theylived there. The first question must, therefore, be answered in theaffirmative.
The circumstances under which a diga married daughter can regainbinna rights are not clearly stated in the text books on Kandyan law.Modder 3 says that a diga married daughter will regain binna rights—
(а)By being recalled by the father and re-married in binna ;
(б)By her father, on her returning to his house along with husband,
assigning to them and putting them in possession of a part ofhis house and a specific share of his land ;
On her returning home along with her husband and attending on
her father and rendering him assistance until his death.
On her coming back and attending on and assisting her father
during his last illness, and the father on this deathbed expressinghis will that she should have a share of his lands.
In Fernando v. Bandi Silva 4 Wood Renton C. J. said that the instancesgiven in the text books of the cases in which binna rights can be regainedare illustrations of a principle and not categories exhaustive in themselves.The underlying principle is thus stated by Wood Renton J. in PunchiMenika v. Appuhamy {supra).
“A daughter married in diga forfeits her.interest in her paternalinheritance not by virtue of that marriage but because it involves a
1 G. R. Ratnapura 12653, S. C. Minutes of June 10, 1913.
3 (1917) 19 N. L. R. 353.
* Modder (Kandyan Law 2nd Ed. pp. 460-465).
*(1917) 4 C. W. R. 9.
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BASN AY A JCE J.—Pesona v. Babonchi Baas.
severance of her connection -with, her father’s house. If that connectionis re-established on its original basis if the diga married wife is oncemore received into the family as a daughter it is only reasonable thatshe should enjoy a daughter’s rights of inheritance
The evidence shows that the 2nd respondent visited her parents fromtime to time and stayed for some time with them, that she went to herparents’ house for her confinements and that she attended on her fatherduring his last illness. The 3rd respondent married about two monthsbefore the father’s death. She did not give evidence as to what shedid to regain the rights she had lost by her marriage. She relied entirelyon the evidence of the 2nd respondent. That evidence shows that shestayed in her husband’s house and occasionally visited her parents.It seems to me that the evidence is quite inadequate to re-establish theconnection that was severed by the diga marriages of the 2nd and 3rdrespondents. In the lower court the 2nd and 3rd respondents raised anissue of estoppel which Mr. Weerasooria, very properly, did not pressbefore us. For the reasons given by me I would set aside the judgmentof the District Judge and dismiss the application of the 2nd and 3rdrespondents. I think that in view of the fact that the appellants hadall along treated the 2nd and 3rd respondents as co-heirs, the partiesshould bear their own costs in both courts.
Caheeeeathe J. —I agree.
Appeal allowed.