BASNAYAKE J.—Lapaya v. Suruwamie
1948Present: Basnayake J.
LAPAYA, Appellant, and SURUWAMIE et al., RespondentsS. C. 269—C.. R. Matale, 7,265
Kandyan law—Brothers married, in association—Death of one—Devolution ofhis estate—Brothers with separate wives get no share.
Under Kandyan law where brothers are married in association, on thedeath of one of them, his estate devolves on the others to the exclusion ofthose brothers who have separate wive3.
PPEAL from a judgment of the Commissioner of Requests, Matale.
G. Weeramantry, for plaintiff appellant.
H. W. Jayewardene, for defendants respondents.
Cur. adv. vult.
September 9, 1948. Basnayake J.—
The plaintiff-appellant, one Wahalamuni D e way al egeder a Lapaya(hereinafter referred to as the plaintiff), brings this action against Wahala-munidewayalegedera Suruwamie and Wahalamunidewayalegedera
BASNAYAECE J.—Lapaya v. Sitruwamie
Pusumba (hereinafter referred to as the defendants), in order to havehimself declared entitled to two-thirds of a field called Deniyekumburaand to have the defendants ejected therefrom. He also claims damagesin a sum of Rs. 50 and continuing damages at Rs. 3 per mensem. Thedefendants resist his claim. The plaintiff is the son of one Kumuda andthe first defendant is her sister Jangu’s daughter. The second defendantis the son of the first.
It appears that one Huwanda was the owner of a field called Deniye-kumbura of 1 amunam and 2 lahas paddy sowing extent. He had twosons Hapuwa and Sonda who were associated husbands of one Meniki.They divided the field between them in equal shares. The northernhalf was taken by Sonda, the younger brother, and the southern half byHapuwa, the elder brother. They had four children Kumudu, Jangu,Dingiri and Pusumba. Hapuwa died in October, 1881(P6). In
December, 1897, Sonda gifted to his daughters Kumudu, Jangu andDingiri by deed No. 14468 of December 9, 1897 (P7) his share of hisresiding land and of a field called Uda Kumbura and the northern halfof Deniyekumbura known as Siyambalagahayatakumbura. After theexecution of that deed Jangu and Dingiri who had been married indeega in 1875 (P2 and P3) returned to the mulgedera while Sonda wasalive. Later they built separate houses on the lands gifted to them andcontinued to live there. Kumudu married in binna. On the same dayon which P7 was executed Kumudu, Jangu and Dingiri executed ausufructuary mortgage of Siyambalagahayatakumbura (D3). They hadearlier on October 25, 1897 (D2) executed a similar mortgage in respect ofHapuwa’s half of the field Deniyekumbura on the footing that they hadinherited it on his death and were in lawful possession of it since then.
The learned Commissioner held that Jangu and Dingiri re-acquiredbinna rights and were each entitled to a J of Hapuwa’s share of Deniye-kumbura. I agree with the learned Commissioner’s finding. The casescited 1 by counsel for the appellant do not affect that finding. It is clearthat Sonda re-admitted Jangu and Dingiri into the family and restoredthem to their natural rights of inheritance. There is no evidence thatany of the children of Meniki were Hapuwa’s, nor is there any evidencethat his father was alive at the time of his death. In P7 Sonda callsKumudu, Jangu, and Dingiri his daughters, but in D2 they refer toHapuwa as their father. Little assistance can therefore be gained fromthe statements in the deeds. But in the absence of evidence that Hapuwahad children, it may be assumed that he died without issue of his own.There is also no evidence that his father survived him. In the circum-stances I propose to rest my decision on the following rule of inheritancestated by Sawers 2 :—
“ Where an estate is enjoyed undividedly or otherwise by threebrothers, two of whom being married to one wife, while the thirdbrother has a separate wife : in the event of one of the friendly or
Appuhamy et alv. Kumarihamy et al. (1922) 24 N. L. R. 109 at 111.
Mudiyanse v. Runchimenika et al. (1933) 35 N. L. R. 179 at 181.
Simon v. Dingiri and others (1916) 3 C.TVJt. 55.
Sawers’ Digest of the Kandyan Law, Chap. 1, Section 20, p. 7.
Marshall's Notes of Sir J. D’Oyly <£> Mr. Sawers : Kandy, Law of
Inheritance, section 70, p. 335.
Sebastian Pillai v. JHagda.le.ne
associated brothers dying without issue, the other brother, with whomhehad the joint wife, shall be his sole heir ; the brother having a separatewife shall have no share of such demised brother’s property of anykind.”
According to this rule, on Hapuwa’s death his lands must be regardedas having devolved on his associated brother Sonda, through whomJangu and Dingiri on their return to the rmdgedera acquired rightstherein equally with Kumudu1.
The plaintiff’s action must therefore fail. He is not entitled to thedeclaration he seeks. His appeal is dismissed with costs.
LAPAYA, Appellant, and SURUWAMIE et al., Respondents