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Present: Lascelles C.J. and Wood Benton J.APPUHAMY KIRI MENIKA et ah269—D. C. Ratnapurat 1,948.
Kandyan law—Kandyan woman married out in diga keeping a closeconnection with the mulgedara—Rights to paternal inheritance.
R,a Kandyan woman, who was married out in diga, went to livewith her husband about two miles away from the mulgedara. Oneof their children Was left in the mulgedara and brought up by hergrandmother; and R, though married in diga, kept up a constantand close connection with the mulgedara.
Held, that in the circumstances R did not, by reason of herdiga marriage, forfeit her right to the paternal inheritance.
'JpHE facts appear from the judgment.
Koch, for plaintiff, appellant.
Cooray, for defendants, respondents.
Gooneratne, for intervenients, respondents.
The following authorities were cited at the argument:—NitiNighanduwa 64-66, Pereira's Armour 64, UTcku v. Pingo,1 DingiriAmma v. Ukku Banda,2 .Tikiri Kumarihamy v. Loku Menika,*■Marshall's Judgments 329.
Cur. adv. vult.
11 Leader L. B. 63.
2 1 Bel. 193.
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December 4, 1912, Lascellbs C.J.—
The facts which gave rise to the present appeal may be shortlystated as follows: —
One Siriwardenehami died possessed of an undivided one-thirdshare in the land Acharigewatta. He had three sons, namely, theplaintiff and two others, who died without issue, and two daughters,namely, Bam Menika, the second defendant, the wife of the firstdefendant, and Kiri Menika, the mother of the two minor inter-venients. The plaintiff claimed the entirety of the undivided one-third share on the ground of prescriptive occupation, but on appealhis claim to the whole share was not pressed. It is clearly unten-able. The footing on which the appeal was argued was that thelearned District Judge was wrong in holding (1) that a valid titlepassed by the deed No. 28,742 of November 24, 1897, by which theplaintiff purported to convey (inter alia) an undivided one-sixth sharein the land in question to his mother Dingiri Menika; and (2) thatBam Menika, the second defendant, did not forfeit her share in thepaternal inheritance by reason of her diga marriage.
With regard to the first ground of appeal, the plaintiff contendedthat the deed was never intended to pass title; that it was executedbecause influential persons were pressing the plaintiff to sell thelands to them; that no consideration passed for the lands; and thatsince the execution of the deed the plaintiff has been in possession.The plaintiff's case ifisshort is that he conveyed the land to hismother in trust for himself. The learned District Judge hasrejected the plaintiff’s version; mainly on the ground that theplaintiff could not produce the original of the deed, and gave anexplanation for his failure to do so, which the Judge refuse'toaccept, namely, that the deed had been devoured by rats or whiteants. The Judge also relied on the fact that in the deed the vendorexpressly acknowledges the receipt of the consideration of Bs. 300.I am not disposed to disagree with this Ending. A grantor whoseeks to invalidate his own deed or to prove that the transfer wasin trust for himself cannot expect to succeed unless he is armed withstronger evidence than is now produced by the plaintiff. The factthat the plaintiff subsequently succeeded in obtaining a certificate-of quiet possession from the Crown, ignoring his mother’s interest,does not, in my opinion, advance his case; for such a certificate isnot positive evidence of the. title of the person to whom it is given; itis merely a formal statement that the Crown has no claim to the land.
The second ground of appeal raises a somewhat doubtful questionof Kandyan law. The Judge found, and I accept his findings, thatBam Menika was married out in diga to the first defendant; thatshe went to live with her husband at Mundakotuwa' about two milesfrom the mulgedara; that one of their children, Dingiri Menika,was left in the mulgedara and brought up by her grandmother; thatIBam Menika, though married in diga, kept up a constant and close
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connection with the mulgedara, which, as I have said, was close toher husband’s home. The question is whether the District Judge isright in holding that, in these circumstances, Bam Menika did not,by reason of her diga marriage, forfeit her right to the paternalinheritance.
In Ukku v. Pingo 1 a somewhat similar question arose. Theplaintiff’s mother, after her parents’ death, contracted a digamarriage with a man of another village. The District Judgefound that if the plaintiff accompanied her husband at all to herhusband’s home, which the District Judge considered doubtful, shereturned soon afterwards and continued to live at the mulgedaraand enjoyed a share of the profits of the ancestral lands. Wendt J.,who delivered the judgment of the Court, considered that the fact'of the plaintiff’s remaining in the mulgedara and sharing the produceof the land prevented the attachment of the forfeiture. Thisdecision is based on the passage in Sawert reproduced on page 829of Marshall's Judgments, where the fact of one of the children of themarriage remaining in the ancestral 'house is stated to give rise toan exception to the general rule, that a daughter married in binaand then going to live in diga with her husband forfeits her right toinherit any share in her parents’ estate.
It is to be noticed that in Ukku v. Pmgo L- the case was that of adaughter who had originally married in diga, whilst the case inSawer was that of a daughter who, after having married in bina,afterwards left the mulgedara to live in diga with her husband.But the Court does not appear to have attached any importance tothis distinction. “ The mere residence of the grandchild,” Wendt
J.observed, ** is regarded as keeping alive her mother’s member-ship in the family.”
The case in Dingiri Amma v. Ukku Banda2 was one in which thereappears to have been room for doubt as to the character of themarriage. The plaintiff,"after her marriage, lived with her husbandin the mulgedara, then, after the registration of the marriage, bothhusband and wife- lived sometimes at the mulgedara and sometimesat the husband’s house, and later the husband and wife lived in ahouse built by the latter in the same garden as the mulgedara. In.these circumstances, Pereira J. held, on the authority of D. C.Kurunegala, 19,107, reported in Modder 66, that, even if theplaintiff were married in diga, she had acquired bina rights. D. C.Kurunegala, 19,107, was decided on appeal on the ground that it wassubstantially a case where a diga married daughter returned withher husband to her father’s house and was given a bina settlement.
In Tikiri Kum.aTihamy v. Loku Menika9 a passage from Solomons'Manual of Kandyan Law is cited with approval, to the effect thata bina married daughter who left her parents to marry in digai1 Leader L. R. 63.21 Bal. 193.
* Ram. 1872-76,106.
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forfeited for herself and her children all right to inherit, “ unlessshe left one or more children of the bina marriage at her parents’house.”
But it appears that the same principle is applicable to the casewhere the daughter originally contracted a diga marriage. In thecase cited as No. 590, Madawalatenna, reported in Marshall'sJudgments' 329, one of the grounds at any rate oh which theSupreme Court supported the opinion of the assessors was that,although the plaintiff was married in diga, she always kept up aclose connection with her father’s house, in which three of herchildren were bom.
On the whole, and with some hesitation, I have come to theconclusion that, on the facts found by the District Judge, the casefalls within the principle of the authorities which I have cited, andI would dismiss the appeal with costs.
Wood Benton J.—
I have had the advantage of reading, and I concur with, thejudgment of my Lord the Chief Justice. I desire to add a wordonly with reference to the point of Kandyan law raised by theappeal.
The evidence justifies the finding of the District Judge that, inspite of her diga marriage, Bam Menika kept up a close and constantconnection with her father’s house. The Madawalatenna case,reported by Marshall 329-331, and dated as far back as 1834, showsthat under such circumstances a woman married out in diga mayregain her rights of inheritance, even although, as in the presentcase, her father was dead at the time of her diga marriage and shewas not subsequently married in bina. In the Madawalatennacase it was expressly held that the recovery of such rights ofinheritance was not dependent upon any need, in which thedaughter married in diga might stand, of maintenance. Both inMarshall (p. 329, para. 57) and elsewhere (Tifeiri Kumarihamy v.Lohu Menika l) there are rulings to the effect that a daughter,(a) originally married in bina, subsequently leaving her parents’house and going to live with her husband in diga, and yet keepingup a close connection with the mvlgedara, or (b) originally marriedin diga, and subsequently returning to her parents’ house and beingre-married in bina, may preserve her rights to any share in herparents’ estate. But an original marriage or a re-marriage in binaseems to be not a condition of the applicability of the general rulelaid down in the Madawalatenna case, but merely evidence of thecloseness of the original, or the resumed, connection with theparents’ household, which enables the married daughter’s rights ofinheritance to be preserved.
(1875) Sam. 1872 70,106.
APPUHAMY v. KIRI MENIKA et al