021-NLR-NLR-V-07-DINGA-v.-HAPUWA.pdf
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1902.
December 10,and
DINGA v. HAPUWA.C. B., Kurunegala, 8,908.
190„. Kandyan Law—Inheritance—Diga married daughters.
February 9.
—A diga married daughter does not forfeit her right to inherit lands
which had been acquired by her mother, or to which her mother hadsucceeded collaterally, or otherwise than by inheritance from her father.
T
HE plaintiff alleged that the land which formed the subjectof dispute between him and the defendant originally
belonged to one Pina by right of inheritance from his fatherYakdessa; that Yakdessa had five sisters, viz., Ukku, Siriati, Tikiri,Hapu, and Dingira; that Pina died about 1892 without issue, whenHapu and Dingira and the children of Ukku, Siriati, and Tikiri,who had predeceased Pina, became entitled to the said land; thatthey divided the same into five shares and held each dividedly;that one of these shares was held by Ukku; that Ukku had fourchildren, two of whom, Punchi and Hapu, were married indiga, one died without issue, and Dinga was the plaintiff; thatPunchi and Hapu purported to sell the entire share which fellto their mother Hapu to the defendants; and that they had noright to do so because by their marriage in diga their rights tothe land were forfeited.
The defendants contended that their rights were not forfeited,and that their conveyance to the defendants was good, in view ofthe fact that the plaintiff had dealt with another land in lieu ofhis share in the land in question.
The Commissioner gave judgment for the plaintiff.
The defendants appealed.
The case was heard in appeal on the 10th December, 1902.Morgan de Saram, for appellants.-
W. Jayawnnlrve. for respondents.
•Cur. adv. vult.
9th February, 1908. Middleton. J.—
In this case Kiriya Davilkafrava owned a piece of land calledHitttnawatte, and, dying, the land was inherited by his sonYakdessa, whose five sisters, of whom Ukku was one. for somereason not in evidence did not inherit.
Pina, the son of Yakdessa, inherited the land from him on hisdeath, and dying without issue, a portion of the land now indispute and marked “ 5 ” on the plan fell to the share of the heirsof Ukku, who predeceased Pina.
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TTIflm left twosons, Nandina and the plain tiff, and two1902.
daughters Punchiand Hapu married in diga. Nandina died Decer^r 10'
without issue, andthe plaintiff claims, and the Commissioner hasx903.
awarded to him, the whole of the land “ B ” as against defendants, February 9.who aver title by purchase from Punchi and Hapu, who apparently MlDDj^TOK)sold them the whole land by notarial deed No. 12,827 on the 3rd J.January, 1901.
The question inthe case is whether Punchi and Hapu, by
marrying in diga,have forfeited their rights of inheritance in
the land.
I think it is clear that this land is derived from Punchi and
ancestors collaterally, and not directly.
80, § 84, it is laid down that if the motherleft a daughter married in diga and a son, the latter will inheritthe lands derived from his mother’s paternal ancestors.
Sawers says (Ondatjie’s Digest, p. 2,):“ But the children born to
a diga husband have no right of inheritance in the estate of theirmother’s parents.
Armour, therefore, lets in the sons and excludes the daughters,while Sawers excludes both from inheriting lands derived fromtheir mother’s paternal ancestors.
In 123 D. C., Kandy, 11,125 (unreported), Lawrie, J., says:“ A
daughter by her diga marriage did not forfeit her right to inheritlands which had been acquired by her mother, or to which hermother had succeeded collaterally or otherwise than by in-heritance from her father.
Lawrie, J., both in his judgment in 2 N. L. B. 92 and in 1231). C., Kandy, No. 11,125, seems to hold that if the lands are notderived directly but collaterally, the forfeiture will not be appli-cable. It is difficult to ascertain whence this theory is derived,and although the learned Judge lays down what he considers tobe good Kandyan Law in 123, D. C., Kandy, 11,125, he at the sametime admits that it is not supported by any authority. Lawrie, J.,was, however, a Judge of the Kandy District Court for many years,and must have had very giteat experience and knowledge of theKandyan Law and customs,
Sawers’ authority (Ondatjie's Digest, p. 2, par. 4) for sayingthat, upon the failure of issue of sons and d&ughters marriedin binna,* the diga married daughter succeeds, but if she haspreviously died her father’s brothers succeed jjefore her children,but the brothers being deceased then the diga daughter’s childrensucceed before the children of the father’s brothers.
Armour also at page 82, says: *“ A Romani who was married andsettled in diga having died intestate leaving sons and daughters
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1900 her landed property {sic) will devolve to all her children in equalrember io shares, although the daughters were married in diga."
1S03.Here the case is practically the Banie, as Ukku, who had no
'ebruary 9. other brother but Yakdessa, must have married in diga, or she.iddleton would have succeeded to the land directly from her father•T- Kiriya Davilkaraya, and applying the principle expressed byLawrie and Withers, J.J., in 2 N. L. R. 92, that where the writtenlaw does not expressly declare a forfeiture a daughter shouldnot be cut off from the inheritance, I hold that the digamarried daughters here have not forfeited their right of inherit-ance, and were entitled to convey to the defendants such sharesas they succeeded to of the land “ B.” As they have conveyedthe whole, the defendants’ title will be only good to the extent oftheir interest.
I think, therefore, that the judgment of the Commissionershould be set aside in so far as it gives the plaintiff the whole .land “ B,” and I hold that he is only entitled to $ from his motherUkku plus J of i from his brother Nandina, the remainder onlybeing that which Punchi and Hapu could have conveyed to thedefendants. The appeal will be allowed with costs, each party topay his own costs in the Court below.