110-NLR-NLR-V-65-G.-A.-JOHN-SINGHO-Appellant-and-S.-S.-HERATH-MUDIYANSELAGE-APPUHAMY-Responden.pdf
536
SA>TSOHI, J.—John Smgho v- Herath hfudiyaneelaffe Appuhamy
1963Present: Sansoni* J,3 acid E, If. G, Pesnafido, J,
G. A. JOHN SINGHO, Appellant, and S. S. HERATH
MUDIYANSELAGE APPUHAMY, Respondent
S. C. 343J61—D. C. Nutvara Eliya, 4212
Kandyan lam—Binna marriage—Quantum of evidence—Production of marriage certi-ficate—Effect on burden of proof .
In a bin no marriage under Kandyan law it is not essential that the husbandand wife should live in the wife's mulgedera. It is sufficient if they live in ahouse which is close to the mulgedera.
H, a Kandyan woman, who married in binna on the 8th June 1917, livedwith her husband a short distance away (about two chains) from her father’smulgedera, but most probably on the same land as that on which the mul-gedera stood. When, owing to fear of a landslide, they moved in 1925 to anothervillage, the father and daughter lived in two houses which they built on one land.
Held, that it could not be contended that H went out in diga and forfeitedher rights to the paternal inheritance.
Held further, that the production of a binna certificate creates a presumptionthat the marriage was binna and shifts the burden of proof to the party whodenies it.
jAlPPEAE from a judgment of the District Court, Nuwara Eliya.
E. A. G. de Silva, with M. Underwood, for the plaintiff-appellant.B. C. F. Jayaralne, for the defendant-respondent.
Cur. adv. vult.
November 14, 1963. Saitsoisi, J.—
The two fields in dispute in this action formerly belonged to a Kandyannamed Herath Mudivanselage Ukku Banda. He died in 1939 leaving twochildren, a daughter Heemnenika. who was born in 1902, and a sonAppuhamy (the defendant) who was born in 1916.
Heemnenika married Tonpelegedera Punchirala in binna on the 6fchJune 19IT and died in 1940 leaving three children, Bisomenika, PunchiBanda and Kumarihamy. The last two sold their interests in the twofields to the plaintiff by deed P4 of 1954.
The plaintiff brought this action for a declaration of title to an undividedhalf share of each of the two fields, ejectment and damages.
The defendant pleaded that Heemnenika inherited nothing from herfather because she “ quitted the mulgedera at her marriage to go and livein diga with her husband.” He claimed the entirety of the fields as hisfather’s sole heir, and by prescriptive possession.
SANSOJJT, J.—John Singho v. Herath Mvdiyanselage Appuhamy
537 –
The real question in dispute between the parties is whether Heenmenikawent out in aiga and forfeited her rights to the paternal inheritance.The marriage certificate of Heenmenika and Punchirala, which wasmarked at the commencement of the trial, showed that the partiesmarried in binna : the burden of proving the forfeiture was thereforecorrectly placed on the defendant. Since he was born in 1916 and themarriage took place in 1917, he was obviously unable to speak to whathappened at or about the time of the marriage. But he said that Heen-menika from 1917 to 1925 lived in her husband’s house at Palugama,which is the village in which her father’s mulgedera was, about twochains away from the mulgedera. During that time her father lived inhis mulgedera. About 1925 the villagers of Palugama moved to anothervillage called Udawela because they feared a landslide. Ukku Bandabuilt a house for himself on a land called Tennehenagederawatte inUdawela, while Punchirala built another house on the same land andlived in it with Heenmenika.
The only other witness called for the defendant who seemed to knowanything about this marriage was Tennegedera Ukku Banda, who gavehis age as 60 years and would therefore have been about 17 years oldwhen Heenmenika married. He said that after Heenmenika marriedPunchirala they went to reside in a house in Palugama adjoining thehouse in which he lived. Under cross-examination he said that his houseand Ukku Banda’s house were adjoining houses, and the house to whichPunchirala came with his wife was really one room of the witness’ house.He explained that by “adjoining” he meant that Ukku Banda’s house andhis house were two chains apart. When asked by what right Punchiralacame to live in a room of his house, the witness said that Ukku Banda’s wifeowned some shares in it. The witness said that at Udawela, Ukku Bandaand Punchirala lived in two houses which they built on one land.
The evidence called by the defendant showed that Heenmenika andher husband after their marriage lived a short distance away from herfather’s mulgedera, but most probably on the same land as that on which-the mulgedera stood. It has also been proved that although the husbandPunchirala was a man of Yompane, which is about one mile fromPalugama, he and Heenmenika never went to live in Yompane.
Did Heenmenika forfeit her paternal inheritance ? No case exactlyin point seems to have been reported, but Mr. Hayley in his book onKandyan Law at page 193 speaking of the binna marriage says “ Inmodern times it is usually entered into only when the bride is an heiress.The husband is brought to the house of the wife or her relations, theessential factor being his residence on property belonging to the wife’sfamily, not necessarily that of her father ”, He cites in support,■the case of Gmigoda v. Dunuwila decided in 1827 and referred to inAppendix II, page 70. There is also the case of Doretugawe v. UklcuJBanda Korule. where the husband and wife lived in a house built closeto her father’s house and belonging to her. The fact that the husband1 (1000) 1 Current Law Reports, 250■
538
Concarmon v. Vandarpoortm.
and wife did not live in the wife’s mnlgedera did not prevent themarriage being in binna. What happened after the villagers of Palugamawent to Udawela confirms the view that the binna marriage never lostthat character, for Punchirala and Heemnenika built a house on herfather’s residing land at Udawela and lived there. The marriagecertificate raised, as I said in James v. Medduma Kumanhamyx, a“ compelling presumption ”, and the defendant has failed to rebut it.
No question of prescription arises since the defendant and Heemnenikawere co-owner's, and her children continued to be co-owners with thedefendant after her death.
The Plaintiff is thus entitled to a 1/3 share of the fields in dispute andto possession of that share, but not to ejectment of the defendant whois a co-owner. Damages were agreed on at Rs. 160 a year for 3 pelason the basis that the Plaintiff was entitled to 1 /2 share of each field :since he is only entitled to 1/3 share, he will receive damages at Rs. 105a year from 9th November, 1954, until he obtains possession of his share.He will also be entitled to his costs in both Courts.
H. N. G. Peknando, J.—I agree.
Appeal allowed.