069-NLR-NLR-V-03-KANDAPPA-v.-RANKIRI-et-al.pdf
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KANDAPPA v. RANKIRI et al.
C. R., Anuradhapura, 88.
Kandyan Law—Widow's right to husband’s paraveni property—How hermaintenance from such property is to be secured—Forfeiture ofsuch right.
Under the Kandyan Law a widow is not entitled to succeed toher husband’s paraveni property if any relations of her husbandare in existence, but she is entitled to maintenance. If the heirswish to get the property, they must secure her her maintenance.If the estate is a large one, the heirs are entitled to specify a portionof it and reserve that to the widow for her maintenance ; but if theestate is small and only just sufficient for her maintenance, thewidow is entitled to possession of it during her lifetime, subjecthowever to this, that if she takes a second husband contrary to thewish of the members of her late husband’s family, she forfeits herright to maintenance.
'J'HE facts of the case appear in the judgment.
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Sampayo, for appellant.
Seneviratne, for respondents.
18th July, 1895. Bonser, C.J.—
This is an appeal from a decision of Mr. Bowes, who was actingas the Commissioner of the Court of Requests of Anuradhapura,and incidentally several interesting questions of Kandyan Lawand custom have been raised. The plaintiffs claim to eject thetwo defendants from the possession of two paddy fields, whichthey say are worth something like Rs. 25.
The first defendant Rankiri is the wife of the second defendant.Rankiri, when she married the second defendant, was a widow, herfirst husband having been one Udayare. Udayare died in 1877,
and his widow married again in August, 1885.
Vol. in.
1805.July IS.
12(56)29
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1896.
July 18.
Bonseb.C.J.
Udayare was in possession of these lands during his lifetime,and on his death in 1877 his widow, who, according to KandyanLaw, is entitled to maintenance from the husband’s property,entered into possession.of these fields, and has been in possessionever since.
Now, a widow is not entitled to succeed to her husband’sparayeni property, that is, the property which her husband hasinherited, if any relations of her husband are in existence. Butshe is entitled to maintenance, and if the heirs wish to get theproperty they must secure her her maintenance. If the estate isa large one, the heirs are entitled to specify a portion of the estateand reserve that to the widow for her maintenance, analogous tothe old English custom of dower. But if the estate is small andonly just sufficient for her maintenance, the widow is entitled topossession of it during her lifetime, subject however to this, thatif she takes a second husband contrary to the wish of the membersof her late husband’s family—that is, of the heirs—she forfeitsher right to maintenance. That appears to be the KandyanLaw.
The widow here remains in possession of this property untilthe institution of this action in November, 1894, when the fourplaintiffs, who are all brothers and sisters, filed a plaint, claimingto eject the widow from the land. They state in their plaint thatthey allowed her to continue in possession because they thought,as they express it, that she would live in the name of Udayare untilher death, i.e., as I understand it, that she would remain unmarried,and would not marry again. But then they allege that “ Udayare“ having no children, and the marriage with Udayare having, as“ they express it, turned null and void owing to the second marriage,
“ the plaintiff objected to her continuing in possession.”
Now, the plaintiffs say that they are the heirs of Udayare, andthey try to make that out in this way :—They say there were twosisters, Ran Etana and Walli Etana ; that Walli Etana had onechild, who was Udayare ; and that Ran Etana had one child, whosename was Kapurala, who was the plaintiff’s father. If this pedi-gree be correct, Kapurala and Udayare were cousins, and theplaintiffs would be first cousins once removed of Udayare.
At the trial the issues settled were : (1) Were the plaintiffs or thedefendants entitled to the land by inheritance through Udayare ?That raises the question of relationship, because if the plaintiffsare the first cousins once removed of Udayare they would be entitledto this land ; if they are not, and it is not suggested that Udayarehad any other relatives, then the widow would be entitled.
The second issue was : Was the possession of the first defendant,
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e., the widow, such as to create a title in her favour ? It wasadmitted by both sides that Udayare was in possession of this land.
The evidence was almost entirely directed to this question ofrelationship. It was proved that Kapurala died twenty or thirtyyears ago and that Udayare died in 1877.
The plaintiff’s story is that Kapurala had possession during hislifetime, and that after his death Udayare had possession. Thenthe obvious remark arises, How is it that no claim was ever madeby the plaintiffs to Kapurala’s share ? Why was Udayare allowedto possess the whole property, and his widow after his death,when plaintiffs, if their story be true, were entitled to one-half ?No explanation is forthcoming. The Commissioner did not decidethe question of relationship, but he decided the case in favour ofthe defendants and dismissed the plaintiff’s action for a reasonwhich Mr. Seneviratne, who appeared in support of the decree,admits cannot be supported. He decided that prescription beganto run against the plaintiffs from the date of Udayare’s death.But that is not so, for, as I said before, the widow was entitled tothe possession of this land. But Mr. Seneviratne says that thedecree can be supported on other grounds, and he has cited a casefrom Austin's Report, page 88, decided so long ago as 1846, where itwas held that, inasmuch as a widow is entitled to possession of herhusband’s lands by way of maintenance, she cannot be ejected bythe heirs. It seems to me that that is so. It has not been provedthat the widow has forfeited in any way her right to maintenance,and therefore the action must fail.
The Commissioner, although he did not decide the issue as torelationship, recorded his opinion that the evidence in favour ofrelationship of the plaintiffs to Udayare was unsatisfactory. I haveread that evidence, and I fully concur in that opinion.
The Commissioner’s judgment must be affirmed.
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1895.July IS.
Bonser, C.J.