Cur. adv. vult~
1 5 Bal. Notes of Cases 38.*4 C. W. B. 187.
s 27 N. L. B. 52.
* 34 N. L. B. 379.3 3 Bal. 122.
S38GARVIN A.C.J.—Mohamadu t>. Dingiri Menike.
December 20,1933. Garvin A.C.J.—
This is an appeal by the plaintiff whose action to vindicate title to anundivided one-sixth share of the land called Mailagahamulawat>~ wasdismissed with costs. The land once belonged in equal shares to Kauralaand Kirihamy. This dispute does not touch the half share which belongedto Kaurala. The interests of Kirihamy with which alone we are comeerned devolved at his death upon his four children—Ran Menike aliasBandi Etana, Sowwa, Dingiri Menike the first defendant, and Kiri Menike.Sowwa died intestate and without issue and his interests passed to histhree sisters each of whom thereupon became entitled to one-sixth of theland. Kiri Menike sold her share to one Herathamy in 1916, and in 1918the second defendant purchased it from Herathamy. The first andsecond defendants who are wife and husband thus became entitled totwo-sixths, the remaining one-sixth being vested in Ran Menike aliasBandi Etana. On July 25, 1921, Ran Menike was married in binna toone Appuhamy and a son was born to them in 1922. The plaintiff claimeda one-sixth share by right of purchase from the said Bandi Etanaupon a deed of conveyance No. 987 of April 29, 1924. The defendantssought to repel his claim on the plea that Bandi Etana “had no rightin law to sell any share of the said property, having forfeited her rights todo so by contracting a disgraceful union and leaving the mulgedera”.Bandi Etana deserted her husband and child and has since been livingin adultery with one Horatala, a man of the Duraya caste. There is aconflict of evidence as to when this desertion took place. The learnedDistrict Judge has found that Bandi Etana left her husband and son veryshortly before the execution of the deed in plaintiff’s favour and notshortly thereafter as the plaintiff contended. There is evidence to supportthis finding and it cannot be disturbed.
The question for us is whether the learned District Judge was right inpoint of law in holding that Bandi Etana who had a vested right to asixth share of these premises had forfeited these rights at the time of theexecution of the transfer in favour of the plaintiff by “conduct whichbrought disgrace ” on her family.
The disgraceful conduct referred to is her association with a man oflower caste. It is to be gathered that in ancient times the Kandyansviewed with the utmost abhorrence any intimate relationship betweenpersons of different caste. “ The marriage of a man with a woman of asuperior caste to himself is prohibited; and even carnal conversationbetween the sexes of different castes is penal, especially the connexion ofa higher caste woman with a lower caste man ”—Sawyer’s Digest. ChapterVII., section 19. When a woman degraded herself, by having connexionwith a man of lower caste than her own, her criminality casts a stain onher family, which formerly could only be obliterated by the family puttingher to death, but this they could not do without permission from theKing; however, in late reigns this extremity was avoided, the Kingtaking the woman to himself as a slave and sending her to one of theRoyal villages as such, and in one instance, the King ordered it to bepublished that the woman had been sent to Bintenne to. be put to death,when it was however known that she in fact was only sent there as aslave”—Sawyer’s Digest, Chapter VII., section 21.
GARVIN A.C.J.—Mohamadu v. Dingiri Menike.339
Apart from their historical interest these passages are of little value.A change of sentiment is apparent in the last of these excerpts and itwould, I think, be correct to say that at no time within approximatelythe last century have marriages between persons of different castes beenprohibited or irregular carnal relationship between them penalized. M Ifparties of different caste are clearly proved to have agreed to marry, bythe usual wedding ceremonies having preceded their union, or other clearand positive proof of their intentions to marry, the Court would not thendeclare such a marriage to be null and void, as being prohibited by anyKandyan custom now prevailing or in force, when all legal disabilities for:aste are virtually abrogated and obsolete in the Colony.”—Per Carr J.yMarch 2,1848; Austin's Reports> Part IIL, p. 236.
The only trace of civil disabilities attached to such relationships is theforfeiture of rights in the case of a woman who becomes the wife of a manof inferior caste—vide Perera's Armour, Chapter IV., section 8, p. 55.We have not been referred to any case in modern times in which this ruleof forfeiture has been recognized as part of the living law. But even if if"be so regarded, a forfeiture will only be admitted where the rule is cleaf ■and in a case which falls strictly within the rule.
Bandi Etana was married in binna to Appuhamy and the misconductascribed to her took place during the subsistence of that marriage. She. did not and could not contract another marriage or even enter into arelationship with another man which under the Kandyan customary lawwould have been regarded as a marriage, during the subsistence of hermarriage with Appuhamy.
This case cannot therefore be brought within the rule of forfeiture inArmour; nor is there any rule of forfeiture which penalizes a woman whoduring the subsistence of a valid marriage commits adultery with a manof interior caste.
It was somewhat faintly urged that this was a case in which BandiEtana might be held to have been divested of her rights by going out indiga. The main difference between a binna and diga marriage is thatwhile in the former the daughter remained in her parental home as amember of her father’s family, in the latter the daughter left her father’shouse and separated herself from her family. The latter was as honour-able a state as the former. The forfeiture of rights in the case of a digamarriage attached “to the act of being conducted from a father’s houseby a man and the going with him to live as his wife in his house.”—Lawrie J. in Kalu v. Howwa Kiri It is impossible , to say of a womanwho during the subsistence of a valid marriage deserts her husband foranother man—especially when as in this case her marriage has not yet ,been dissolved—that she has gone out in diga.
If Bandi Etana is to be penalized at all it must be for her misconduct,but there does not appear to he any rule of Kandyan law which penalizessuch misconduct with forfeiture of rights. Her rights in and to a one-sixth share of these premises passed to the plaintiff upon the execution ofthe conveyance No. 987 of April 29,1924, and are now vested in him.
The learned District Judge has quoted with approval certain passagesfrom Mr. F. A. Hayley’s book on Kandyan law in which the author
»K. L R. 54.
GARVIN S.P.J.—Kanniah v. Manieam.
expresses the opinion that a binna-married daughter if she has children isonly entitled to a life estate in the property she inherits from her father,the fee simple being vested in her children. Bandi Etana has a son byher binna husband. He is not a party to this proceeding and we are notcalled upon therefore to express any opinion on the point.
Bandi Etana’s rights whether they amounted to full dominion or onlyto a life estate have not been lost by forfeiture and are now vested in theplaintiff. The defendants have failed in their plea that Bandi Etana’srights ceased by reason of forfeiture, and the plaintiff is entitled as thetransferee of Bandi Etana’s rights to the decree he claims.
The appeal is accordingly allowed. Judgment will be entered for theplaintiff as prayed for save as to damages which will be assessed at theagreed rate of Rs. 20 per year.
The appellant will also have his costs both here and below.
Dalton J.—I agree.
Prieberg J.—I agree.
Appeal allowed.