028-NLR-NLR-V-28-CAROLIS-SILVA-v.-KIRI-BANDA-et-al.pdf
( 190- )
1926.
Present: Schneider A.C.J. and Maartensz A.J.
CAROLIS SILVA u. KIRI BANDA et al.
113—D. C. Kumnegala, 8,745.
Kandyan law—Riga marriage—Independent estate of each parent—Right of daughter, married in diga, to inherit mother's property.Where Kandyan parents have separate estates, a daughtermarried in diga is entitled to succeed to her mother’s propertyequally with her brother..
^ PPE AL from a judgment of the District Judge of Kurunegala.
Soertsz, for plaintiff, appellant.
H. V. Perera, for defendant, respondents.
November 18, 1926. Maartensz A.J.—
This is an action for the partition of a land called Galahitiyawe-hena which admittedly belonged to one Kirimenika.
Kirimenika died leaving as heirs Appuhamy, who was succeededby his children, the first and second defendants and a daughter,Ukkuhamy, from whom the plaintiff derives title. Another sonPunchirala left no issue.
It was admitted (1) that Ukkuhamy was married in diga; (2)that Ukkuhatfiy’s father had a separate estate of his own; (3) thatKirimenika was married in binna on her father's property; and (4)that Kirimenika was entitled to the land sought to be partitioned,through her father.
The question argued in appeal was whether on these admissionsUkkuhamy forfeited her right to inherit her mother’s propertyacquired by inheritance from her father.
The learned District Judge answered this question in theaffirmative, and the plaintiff appeals.
In the case of Kiriwante v. Ganetirala,l plaintiff (a Kandyanwoman married in diga) claimed a share equally with her brothersin certain lands which belonged to her mother's estate. Plaintiff'sparents had each a separate estate, and only a third share of thelands claimed had come to her mother from her parental ancestors.
i (1890) 2 N. L. R. 92.
( 191 )
It was held by Lawrie J. (Withers J. concurring) that in theuncertainty of the law on the subject and the conflicting state ofthe authorities plaintiff should not be deprived of the share sheclaimed of her inheritance. This ruling was followed by Shaw *J.in the case of lJkku Banda v. Jayasekera-1
The decided cases favour the appellant’s contention that thequestion should have been answered in the negative, and accordingto the rule laid down by Modder and Sawer these cases have beenrightly decided.
Modder in his Principles of Kandyan Law lays down withoutqualification that a daughter’s diga marriage does not work aforfeiture of the maternal estate when the parents had each anindependent estate. This statement of the law is in accordancewith the view expressed by Sawer on page 16, section 46 (Mr. EarlModder* s Ed.), thus: —
“ 1. The same customs regulate the succession to the mother’sas to the father’s estate.
“ 2. Daughters, having brothers, have no superior interests ofinheritance in their mother’s landed estate to what theyhave in their father’s estate, with this exception, however,that, where both the parents have each an independentestate, the daughters whether married in diga or otherwisehave paraveni rights to equal shares with their brothersin their mother’s estate.”
Armour, however, at page 80 (Perera*s Ed.) says: —
“ If the mother left a daughter married out in diga and a son,the latter will inherit the land derived from his mother’spaternal ancestors to the exclusion of his diga marriedsister ”
but qualifies this general rule on page 81, where both parents haA'eindependent estates in the following statement: —
“ If the father’s house and landed estate are distant or distinctfrom the mother’s house and estate then the marriage of adaughter in binna in the mother’s house is considered adiga marriage in respect of the father’s house and estate,and vice versa, but although in some cases by beingmarried off in diga away from the houses of both theparents a daughter may lose the right to inherit a shareof her mother’s landed estate, yet if she were married andsettled in binna in her father’s house she will not lose herright, and accordingly in the event of the parents dyingintestate their lands will devolve in equal shares to theirson or sons and to the said daughter.” .
1026.
MAABTBNSZ:
A.J.
Carolis Silvav. KiriBanda
28/16
1 (1918) 5 C. W. R. 175.
( 192 )
1926.
Maartensz
A.J.
*Carolis Silvav. KiriBanda
Hayley examining Sawer's statement of the law says: —
“ To return now to the passages, set out above for comment, andto discuss Sawer’s second statement first, it will be noticedthat it is in itself somewhat curiously worded. Theexcepting clause really constitutes the rule, and the wholecan only mean that diga married daughters are excludedfrom their mother’s estate when the father has no property:And this possession of property by the father has, inmodern cases, been made the criterion, the diga married*daughters being allowed to succeed to their mother if thefather has any property of his own. But if the fatherhas no property and therefore necessarily no house of hisown, and the wife has an estate the marriage is almostcertain to have beep, a binna marriage, so that, consciouslyor unconsciously, Sawer was not only stating the rulethat, in succession to a binna married woman, diga. marrieddaughters will be excluded if there are other children/’
I am of opinion that Mr. Hayley’s argument that Sawer’sstatement refers only to a mother who has married in diga is notconclusive. To be conclusive, the converse must be true, namely,where a man and "his wife both have property, the marriage mustnecessarily be a diga marriage on the part of the wife. But this isnot so, for a man by marrying away from his father’s house does notforfeit his right to inheritance from his father, and he may haveproperty though married in his wife’s house. The law is definitelystated by Sawer without qualification, and in the absence ofa clear rule to the contrary I am of opinion that in the case ofmaternal inheritance it is immaterial whether the mother marriedin binna or in diga.
1 allow the appeal with costs and remit the case to the DistrictCourt for further trial. The plaintiff will be entitled to the costsof contention.
Schneider A.C.J.—I agree.
Appeal allowed.