JuneS, 2910 Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice,
and Mr. Justice van Langenberg.
MEERA SAIBO et aL v. PUNCHIRALA et al.
D. C., Badulla, 2,321.
Kandyan Law—Woman marrying in diga after her fathers death—Forfeiture of rights to paternal inheritance.
A woman who marries in diga after her father's death does notforfeit her rights to the paternal inheritance by reason of the.marriage.
fpHE facts are fully set out in the judgments.
Zoysa, for the appellants.—A daughter who marries in digaafter her father's death does not forfeit her rights to her paternalinheritance (see Dingiri Menika v. Heenhami et al.1).
Bawa, for the respondents.—Under the Kandyan Law a daughtergets at her father’s death only a defeasible title. She forfeits herright on her being given in marriage in diga by her. brothers orstepfather. The principle underlying Kandyan Law in this matteris that property should always remain in the family (see Mod-der 51,55; Austins Reports 164).
Zoysa.—The fact that a daughter marries in diga does not neces-sarily make her lose her right to the paternal inheritance. Counselcited Dingiri Amma v. UkUu Banda,2 Sawyer 1, Armour 50.
June 8, 1910. Hutchinson C.J.—
The plaintiffs claimed a declaration of the title of the first andsecond plaintiffs to a field called Uluktalawa, and to recover posses-sion and damages. The first plaintiff claimed an undivided half ofthe field by pxirchase from the second plaintiff, and also claimed tobe lessee of the other half from the second plaintiff; and the secondplaintiff claimed the other half by inheritance from his father;the third plaintiff claimed under an ande agreement with the first-plaintiff.
The field belonged to the second plaintiff's father. He had oneson, Siyatu (who is the second plaintiff), and five daughters. Allthe daughters married in diga, and the District Judge held thatunder the Kandyan Law, which applies in this case, they by theirmarriages forfeited their rights in this field, but that two of them(1909) 3 Leader L. R., Part 2, 8.2 (1905) 1 Bah 193.
( 177 )
afterwards regained their rights, and as to those two the plaintiffhas not appealed. The only appeal is by the second and thirddefendants. The third defendant claims under a usufructuarymortgage of their shares from two of the daughters, Ran Menikaand Muttu Menika, whom the Judge held to have forfeited, andnot regained, their rights; and the second defendant claims thosesame shares under an agreement with the third defendant.
The contention on behalf of the defendants has been that, inasmuchas both Ran Menika and Mutu Menika were unmarried at the timeof their father’s death, they did not forfeit their rights; that theKandyan Law is that a daughter who is unmarried at her father’sdeath does not forfeit her rights in the paternal lands by subse-quent marriage in diga. There is a decision of mine to that effectreported in 3 header L. R., Part 2, 8. That was a Court ofRequests case. There was no appearance for the respondent, andI see from my notes that the appellant’s counsel only referred tothe passage in Perera's Armour 59, and did not mention theauthorities which might have been quoted on the other side, andthat I did not discover them for myself. Having now read them,I am obliged to say that I think my former opinion was wrong. Tconcur in the order proposed by Van Langenberg J.
Van Langenberg A.J.—
This is an action by the plaintiff to be declared entitled to a fieldIJluktalawa. This field belonged to one Illuktalawa Vidane, aKandyan, who died in 1893, intestate, leaving him surviving oneson, Siyatu, the second plaintiff, and five daughters, Hin Menika(wife of the first defendant). Ukku Menika, Ran Menika (wife ofthe second defendant), Muttu Menika, and Kudu Menika. Thefive daughters married in diga, and the plaintiffs say that under. the Kandyan Law they foreited their rights to their father’s estate,and that the second plantiff. became entitled to the entirety.
On February 25, 1907, the second plaintiff sold an undivided halfof the field to the first plaintiff, and later leased the remaining halfto him. The third plaintiff is a tenant under the first. The firstplaintiff claimed a right to the possession of one-sixth under hiswife. The third defendant based his right to possession to two-sixthson usufructuary mortgages executed in his favour by Ran Menikaand Muttu Menika, while the second defendant said that he wascultivating these shares under the third defendant.
The learned District -Judge held that the five daughters lost theirrights to share in their father’s estate, but that two of them, namely,Kudu Menika and Hin Menika, regained their rights, the former bycontinued residence in the paternal home and the latter by returningto it, and he declared Kudu Menika and Hin Menika each entitledto one-sixth, and allotted the remaining two-thirds to the first
June 8, 1910
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June 8, 1910Van Lan-
plaintiff. The second and third defendants have appealed, butthere was no appeal either by the plaintiff or by the first defendant.
Ban Menika married in 1898 and Muttu Menika about 1903, andthe first point argued by Mr. de Zoysa for the appellant was thatas these two women were unmarried at the time of their father’sdeath they succeeded to the inheritance, and their subsequentmarriage in diga did not affect their rights, and be cited in supportof his contention the case of Dingiri Menika v. He&nhami et al.1'The Solicitor-General, for the respondent, referred us to severalauthorities, showing that the daughter does in these circumstancesforfeit her share of her father’s estate, and it was so expresslydecided by this Court in a case reported in Austin’s Reports 164,South Court, No. 14,991. This decision and others to the sameeffect were cited and followed by Sir Archibald Lawrie in D. C.,Kurunegala, 434/140. Okanda-pola Kiri Menika v. Okandapola KaluMonika;z
In my opinion both Ran Menika and Muttu Menika were divestedof their rights to the paternal estate by marrying in diga. The factthat they “ went out in diga of their own accord ” (I am quoting theevidence of their mother) does not affect the question. If followsthat neither the second defendant nor the third defendant has anyright to remain in possession of any portion of the field, and theyare therefore trespassers. This being so, it does not concern theappellants whether first plaintiff has been given a larger share thanhe is entitled to, and it is also unnecessary to determine a pointraised in the course of the argument as to the effect of the returnto the paternal home of a woman who had forfeited her inheritanceby a diga marriage, whether she becomes entitled to a share of thepaternal. inheritance or can claim maintenance only.
The District Judge, I think, was wrong in decreeing the cancel-lation of the mortgage bonds made in favour of the third defendant,and I think that this portion of the decree should be struck out.With this modification I would affirm the decree with costs.
Appeal dismissed; decree varied.
1 (1909) 3 Leader L if., Part 2, 8.
1 (May 1 and 15,1894) Modder’a Kandyan Law 55.
MEERA SAIBO et al. v. PUNCHIRALA et al