073-NLR-NLR-V-50-K.-A.-BANDA-Appellant-and-ANGURALA-et-al.-Respondents.pdf
276
BERTRAM C.J.—'Banda v. Angurala
1922Present: Bertram C.J.
K A. BANDA, Appellant, and ANGURALA et al., Respondents
234—C. R. Kegalla, 16,342
Kandyan Law—Diga marriage—Forfeiture of rights—Waiver of forfeiture—Execution of series of deeds on footing of rights by other members offamily—Re-acquisition.
Where, in Kandyan Law, a forfeiture has taken place by reason ofa diga marriage, it is not connection with the mulgedera which restoresthe binna rights. It is a waiver of the forfeiture of which the connectionwith the mulgedera is evidence. The execution of a series of deeds fora number of years by other members of the family on the footing thata diga married lady still possessed rights would be sufficient evidenceof such waiver.
PPEAL from a judgment of the Commissioner of Requests,Kegalla.
E. W. Jayawardene, with L. H. de Alwis, for the appellant.
Allan Drieberg, K.C., with C. Ratuwantudawe, for the respondents
February 1, 1922. Bertram C.J.—
The question to be decided in this case relates to the rights of inheri-tance of two daughters belonging to a Kandyan family who are marriedout in diga and claim, nevertheless, to possess binna rights. They are thedaughters of one Punchi Appuhamy who died many years ago. Hiswhole family consisted of two sons, Mudiyanse, th ? 3rd defendant, Angurala,the 1st defendant, a third son who is dead, and of the two daughters inquestion, Dingiri Mahatmaya and Punchi Mahatmaya. As I have said,these daughters married out in diga. Dingiri Mahatmaya married oneDingiri Appuhamy, went to live with him in his village, Gasnawa, andis still there. The matrimonial history of the other daughter, PunchiMahatmaya, is uncertain. Her original husband is said to be dead,and she is said to have married twice subsequently. Whether thesemarriages were registered does not appear, but there can be no question
BERTRAM C.J.—Banda v. A.ngurala
277
that at her original marriage she left the mulgedera and went to live inthat of her husband. The action is a partition action. Plaintiff, whooriginates it, is not a member of the family but is a cousin of DingiriMahatmaya’s husband and has bought in various interests of membersof the family.
A recital of these facts would seem to suggest conclusively that thepartition must be conducted on the supposition that Dingiri Mahatmayaand Pun chi Mahatmaya had lost all rights of inheritance from theirfather, Punch! Appuhamy, unless it can be shown that in some way theyregained binna rights, and the question for determination is whetherthey have done so. In all previous cases the question for the recoveryof binna rights has always appeared to turn upon something done inconnection with the mulgedera, such as a resumption of residence there ;the cultivation of the paternal lands held in connection with it ; theleaving of a child in the mulgedera or the maintenance of a close con-nection with the mulgedera. But in this case nothing of the sort issuggested. The claim to binna rights, however, in this case is basedupon circumstances of a very significant and unequivocal characterwhich I will proceed to examine.
Notwithstanding the diga marriages of these two daughters, theirbrothers Mudiyanse and Angurala for many years past have executeda series of deeds clearly based upon the supposition that their sistersretained rights in the paternal inheritance. The first of these deedswas a lease for 10 years executed on September 9, 1907 (2D1). Thelessors were the two brothers, the two sisters, their mother Pan Menika,and TJkku Menika, the widow of the deceased brother. They are alldescribed as of Tulhiriya, the village in which the mulgedera was situated,and the deed recites, with reference to the daughters, that they had atitle by paternal and fraternal inheritance. The lessee was one SulanchiAppuhamy. In the following year 1908, by 2D2 the two brothers andsisters together with TJkku Menika, described as residing at Tulhiriya,sold certain other paternal lands to one Don Telenis, a Police Vidhan.In 1912 the number of deeds which were executed on the suppositionthat the two daughters retained their rights of inheritance was no lessthan seven. Three of these, 2 D3, 2 D4, and 2 D7, were executed on thesame day, and like the rest were all based upon the same common supposi-ion. Some of these have a very specific significance. Thus, in 2D3executed on March 25, 1912, the two sisters for valuable considerationtransferred a half share in certain paternal lands to one of the brothers,Angurala. It is difficult to understand why this brother should buyfrom his sisters land which they had already forfeited unless in Some waythey were being treated as having regained binna. rights. Similarly by2 D4, executed on the same day, one of the brothers, Angurala, joinedwith one of the sisters in selling a half share of another paternal land tothe other sister and her husband. Further under the series of deeds,2 D7, 2 D8, and 2 D®, a stranger, Punchi Banda, proceeded to get in allthe interests of the two brothers and the two sisters in another paternalland. He first by 2 D® on January 22, 1912, bought in the interests ofAngurala, which is described as one-fourth. He then by 2 D7 on March25, 1912, bought in-the interests of the two sisters described as a half,
278
BERTRAM C.J.—Banda, r. Ajngurala
and finally four months later by 2 D12, one of the brothers, Angurala,joined with one Of the sisters, Dingiri Mahatmaya, in conveying a halfshare of another land to Maddama Sulanchi, the lesseee under the leaseof 1907 (2 D1). It is impossible not to be impressed by this series oftransactions. They seem only to have one meaning, but the storydoes not stop there.
In 1913, by 2 D2, Mudiyanse, one of the brothers, sold one-fourth ofthis land to a stranger Fonseka, a proceeding which, taken in conjunctionwith the deeds of the previous year, clearly implies a recognition of hissisters’ rights. In August 1915 by 2 D10, Punchi Mahatmaya, one ofthe sisters, executed a mortgage of her share in another paternal land,describing it as one-fourth, and as hers by inheritance. But in 1915 anincident occurs. Sulanchi Appuhamy, the lessee of the lease of 1907(2 D1), brought an action on his lease against the lessors, who it will beseen, include both of the two brothers and both of the two sisters. Forthe first time on February 23, 1916, the two brothers in their answerwhich is filed in that case, challenged the rights of their two sisters whohad executed the lease with them. See para. 3 {2 I)16) : “ The 1st and2nd defendants alone are entitled to the rent of the said land, the otherdefendants, who are women, having forfeited the inheritance ”. Itwould seem that this treacherous plea was suggested to them by theirlegal advisers in the action, but no definite attempt was made to sustainit. The action was settled on the terms that the money recovered shouldbe divided among the defendants in equal shares, but the two brothersand TIkku Menika reserved the right to raise the question of the digamarriages of the 3rd and 4th defendants. Two years later, on November2, 1918, by 2 D5, the two sisters still purported to maintain their binnarights and conveyed a share of this land and their other paternal landsto Ratnaike Appuhamy, the second defendant in the present partitionaction, which was launched on September 9, 1919.
It may be interesting to note the residences of the two sisters asdescribed in this series of deeds. In the deeds of 1907 and 1908 they areboth described as residing at Tulhiriya, the mulgedera village. Inthe deeds of 1912 the description varies. In the deeds executed in Marchthe two sisters are described as residing at Ambagala and Gasnawa,the villages of their husbands. In the deeds of June and Decemberthey are described as both of Tulhiriya. In 2 D10 of August 18, 1915,Punchi Mahatmaya describes herself as of her husband’s village. In2 D5 of November 2, 1918, both sisters describe themselves as of theirhusbands’ villages. In connection with these references to residenceat Tulhiriya it should be noted that Dingiri Mahatmaya is said by oneof the witnesses to have lived for ten or twelve years in a house builtby her husband on another of the paternal lands at Tulhiriya. Thiscircumstance may explain these residences so far as Dingiri Mahatmayais concerned.
The question now arises : What is the effect of this very remarkableseries of documents ? The point at issue is the forfeiture of certain rightsof inheritance. Any forfeiture may be waived by those in whose benefitit takes place. It has been customary in considering whether a forfeiture
BERTRAM C.J.—Banda v. Angttrala
279
of binna rights has been waived to look at the matter from the point ofview of the connection of the daughter in question with the rrmlgedera.But in my opinion there is nothing to show that this is the only test. Touse a favourite phrase of the late Lord Bowen, “ There is nothing magicabout the rrmlgedera ”. Where a forfeiture has taken place it is not theconnection with the mulgedera which restores the binna rights, it is thewaiver of the forfeiture, of which the connection with the mulgederais the evidence. As was said by Wood Renton C. J. in Fernando v.Band-i Silva 1 “ The instances given in the text books on Kandyan Lawof the cases in which binna rights can be regained are illustrations ofa principle and not categories exhaustive in . themselves. Theunderlying principle is that the forfeiture by a marriage in dig a ofthe rights of the diga married daughter to a share of the inheritance,may be set aside by her readmission into the family The real questionis : Have the brothers waived the forfeiture of their sisters’ rights ?It seems to me there can be only one answer to this question. On anyother supposition the series of deeds above recited would be absolutelyunintelligible.
Mr. E. W. Jayawardene, who strongly contests this conclusionnevertheless submits that a distinction is to be drawn between the casesof the two sisters, Dingiri Mahatmaya who had only one husband, andis still living with that husband in her paternal village, and of PunchiMahatmaya who had a more varied matrimonial career. With regardto Dingiri Mahatmaya, if an effective waiver of forfeiture took place,she retains all the rights she acquired by that waiver. The case ofPunchi Mahatmaya is said to be different. Her original husband,according to her marriage certificate, was Mapa Hamillage SiyalisAppuhamy. He is said to have died soon after the marriage and she issaid to have returned to the rrmlgedera. It is stated that she is nowliving with her third husband at Ambawella, seven miles from Tulhiriya.But in all the deeds of 1912 she is described as living at Ambagala.Apparently this is the same as Ambawella. She was still there in 1918(2 D5). The evidence of plaintiff with regard to her is as follows :“ She
lives at Ambawela, seven miles from Tulhiriya. She is living with herthird husband there. She has been there for 12 years. Prior to that shelived at Alauwa with her second husband. Alauwa is three miles fromTulhiriya ”—marginal page 35. Mr. Jayawardene suggested that, even ifwe assumed that a waiver of the forfeiture took place on her first marriage,there would be a fresh forfeiture on her subsequent marriage, and hewould appear to assume that her final marriage took place at a recentdate. Here he is clearly mistaken. Punchi Mahatmaya is said to havelived in the village where she is at present for twelve years. In 1912she was living at Ambagala. This is clearly the same as Ambawella.If in 1912 a waiver of the forfeiture had definitely taken place, nothinghas since happened to disentitle her to the effect of that waiver, and Ithink no distinction can be drawn between the cases of the two sistersThe learned Commissioner’s judgment is very concise. He simplysays that he is satisfied “ from the long string of deeds produced thatthe girls, though they were given out in diga, still held these property
1 (1917) 4 C.WM. p. 12.
280
CANEKERATNE J.—Singaravelu v. Ponnan
rights in the paternal estate and those rights were long recognised by thefamily. I therefore hold that they did not lose their rights to the estatealthough their marriages were registered as diga”. For the reasonsI have explained, I agree with the conclusion of the learned Commissionerand dismiss the appeal with costs.
Appeal dismissed.