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APPUHAMY v. KIRIHENEYA et. al.
D. C., Kandy, 8,647.
Burden of proof—Proof not necessary of averments not denied and inrespect of which no issue is framed—Kandyan Law—Rigid ofwidow to alienate husband's property for payment of his debts—Duties and status in family of Kandyan widow.
When a defendant makes an averment in his answer, and noreplication is filed to meet it, it is open to the plaintiff, if he deniesthe averment, to have an issue framed on it, and thus put thedefendant to the proof of the facts averred. If no issue in thatway is settled, parties must be held not to have been at issue onthose facts, and no burden lies on the defendant to prove them.
Under the Kandyan Law, a widow left by the husband’s deathwith young children was the head of the house and family until hersons grew up to manhood. On her devolved the duty of payingher husband’s debts. So, where a Kandyan widow sold herdeceased husband’s lands to pay his debts, held, that the purchaseracquired a good title as against the husband’s heir.
was an action to recover possession of certain lands thatbelonged to one Ranghami, deceased. The plaintiff was hisson, and claimed as his sole heir. The defendants were purchasersof the lands from Ranghami’s widow. They averred in their answerthat Ranghami had died in debt, and that the lands had been soldto them by his widow to enable her to pay his debts.- No replicationwas filed, and no issue was suggested by the plaintiff on that aver-ment. The District Judge, however, held that the defendantsshould have proved that averment; but inasmuch as they hadomitted to do so, and the plaintiff had proved title, he gave himjudgment. The defendants appealed.
July 10and 14.
Dornhorst, for appellants.
Sampayo, for respondent.
Cur. adv. vult.
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1896. 14th July,. 1896. Lawbie, J.—
'and 14 The learned District Judge intimated in his judgment that he
*would have dismissed the action if the defendants had proved
that the father of the plaintiff had died in debt, and that his debtswere paid , by the price paid for these lands when they were sold-by his widow.
The defendant averred these facts in the fifth paragraph of theanswer; the plaintiff did not reply. It was open to him, if hedenied the averments in that fifth paragraph to have had an issueframed and so to have put the defendant to the proof. No issue tothat effect was settled, and I take it that the parties must be heldnot to have been at issue on these facts. I hold that the defendants’averments that the sale was to pay the ancestor’s debts were notdenied, and that no burden lay on the defendant to prove-these.
A widow left by her husband’s death with young children wasby Kandyan Law the head of the house and family until her sonsgrew up to manhood. She had the right to give jher daughters outin diga; on her devolved the duty of paying her husband’s debts.Administration of an intestate’s estate was unknown to the Kandyan .Law. The widow held the position and owed to her children and.to her husband’s creditors the duty which now .is laid on a legalrepresentative. This sale was completed by the widow more thanthirty years ago. It appears that the widow acted unselfishly,for she sold acquired lands m which she had a greater personalinterest than in the paraveni lands which she did not sell.
The defendants have a title which the plaintiff has no bright to' disturb. The judgment is set aside, and judgment is entered forthe defendant with costs.
My brother Lawrie’s judgment has my hearty concurrence. Itseemed just enough in all conscience that the defendant shouldbe quieted in the possession- of a land which he has held under abond fide title for more than a quarter of a century. As my brotherhas shown, justice in this case is according to law. Appellant tohave his costs in both Courts.
APPUHAMY v. KIRIHENEYA et al