048-NLR-NLR-V-73-E.-D.-PINA-Appellant-and-I.-L.-AHAMADU-LEBBE-Respondent.pdf
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Pina v. Ahamadu Lcbbc
1970Present: Sirimane, J., and Wijayatilake, J.
D. PINA, Appellant, and I. L. AHAMADU LEBBE, RespondentS.C. 1S3/67 (Inty.)—D. G. Kuliyapiliya, 1337IP
Kandyan lava prior to 1039—Diga connections by daughter without valid marriage—Forfeiture of her rights to the paternal estate—Kandyan Law DeclarationOrdinance {Cap. 69), a. 9 (2).
Under the Kandyan low prior to 1939, a daughter who went out in Digaforfeited her rights to her paternal estate even if there was no validregistered marriage between her and the man or men with whom she had-Diga connections.
A.PPEAL from an order of the District Court, Kuliyapitiya.
T.B. Dissanayake, with Sepala Munasinghe, for the 1st defendant-appellant.
Walter Wintalachandra, with T. B. Dillimuni, for the plaintiff-respondent.
SIRUMAXE, J.—Pina c. Ahi.-n ii<i L'-b'te26 9
May 6, 1970. Shumate, J.—
The only question in this case is whether one Hapu went out in Digsand forfeited her rights to the paternal estate.
She was one of the three children of the original owner Unga, and the'plaintiff having purchased one-third share from her in 1963 on Deed P 2,filed this partition action a few months later.
Unga died on 30.S.3S, before the Kandj-an Law Declaration Ordinance(Chapter 59) came into force. It was therefore not necessary to prove avalid marriage as required by section 9 (2) of that Ordinance, betweenHapu and the man or men with whom she had Diga connections.
In Kalu v. Hounoa Kiri1 it was held that the exclusion of a Diga marrieddaughter from a share of her father’s property attaches to a daughter whogoes out in Diga, even though the marriage is invalid by reason of itsnon-registration under the provisions of Ordinance 3 of 1S70.
In Komale v. Duraya and another 3 where the facts were very similar tothose in the present case, Wendt J., following the decision in Kalus case,held that under the Knndynn Law a woman who “ goes out in Diga ”would not be entitled to claim a share of her paternal inheritance althoughshe may not contract a legal marriage.
The principle underlj'ing the rule of forfeiture is that by reason ofher association with a man, the woman has quitted her family home(Sec WieLramasinghe v. Kiri Malli2), and that in consequence of suchassociation there is a severance of the daughter from the father’s family.
Hapu’s own evidence in this case was that she was given away to Arumaby her father and that she lived in Aruma’s house for about a year.Thereafter, she became the mistress of one Mcnika, until she left himafter a few months, and returned to her father’s house where sho livedwith one Mitiya for some unspecified period ; but left her father’s houseagain during her father’s lifetime to live with one l’odi Singho in thelatter’s village. She has ten children by him now, and still lives withhim in his village.
I think the decision in Menikhamy v. Appuhamy4 relied on by theplaintiff-respondent, can be easily distinguished. In that case the womanleft her father’s house to be employed as a domestic servant. Some two .or three years after that she lived with a man as his mistress. WoodRenton J. said,
“ It is the going out in Diga that works the forfeiture ; that is to saythe woman should be conducted or go out to live with a man as hiswife. Kalu v. Hoicua Kiri, 2 C.L.R. 54. Now, the plaintiff did notleave her home with any 6uch intention. Sho left for the purposo ofemployment in the first instance, and her subsequent relations withthe Tamil man did not in my opinion constitute a ease in going outin Diga. ”
1 {.1892) 2 Ceylon Law Reports 51.» {1954) 65 .V. L. R. 3S2.
* {1907) 3 Balasinghatn's Reports 122.* {1913) 6 Balasingham's Kotes of
Cases 3$.
I »*—J 10583(0/70)
270
l rancis i>. Joseph
'The 2nd child of the original owner, one Kiriya, left two children,Menika and the 3rd defendant. In 1956, on PI, Menika conveyed to the2nd defendant a 1/4 share of the land, i.e., on the footing that Hapu hadgone out in Diga. This same person had earlier, in 1952, sold a similarshare of another land of which Unga was the original owner, on the samebasis.’
Hapu admitted that she never had any possession of this land, whichis planted in coconut.
The evidence farours the inference that Hapu went out in Diga. Theplaintiff’s purchase on P2 of a 1/3 share of this land and two others forasum of Re. 2,000 of which only Rs. 230 was paid in the presence of the. Notary, appears to have been a speculative one.
I am of the view that no title passed to the plaintiff on P2, and hisaction must be dismissed with costs both here and below.
Wijayatilake, J.—I agree.
Appeal allowed.