MUDIYANSE v. PUNCHIMENIKA et al

030-NLR-NLR-V-35-MUDIYANSE-v.-PUNCHIMENIKA-et-al.pdf


DE SILVA AJ.—Mudiyanse v. Punchimenika.
179
1933Present: Akbar J. and de Silva A.J.
MUDIYANSE v. PUNCHIMENIKA et al.
147—D. C. Kegalla, 8J54.
Kandyan law—Deega married daughter—Re-acquisition of binna rights—
Intention of father or family to readmit—Proof of intention.
To establish that a deega married daughter has re-acquired binnarights it must be proved that the father in his lifetime or the familyafter his death had manifested an intention to admit her to binna rightseither by express declaration or by conduct from which such an intentionmay be gathered.
Such an intention may be proved by evidence of a course of dealingwith property recognizing such rights.
^ PPEAL from a judgment of the District Judge of Kegalla.
V. Ranawaka, for defendants, appellants.
Navaratnam, for plaintiffs, respondents.
May 8,1933. de Silva A.J .—
The first defendant in this case is the daughter of one Punchirala.She was married in deega in 1897, in Punchirala’s lifetime, and thequestion for decision is whether she has subsequently acquired binnarights and retained them up to the date of action.
180
DE SILVA AJ.—Mudiyanse v. Punchimenika.
The text books on Kandyan law state that binna rights are acquiredby a daughter who has been married in deega in the following circum-stances :—
By being recalled by the father and remarried in binna;
By her father, on her return to his house along with her husband,
assigning to them and putting them in possession of a partof his house and a specific share of his lands;
On her returning home along with her husband and attending
on her father, and rendering him assistance until his death;
<d) On her coming back and attending on and assisting her fatherduring his last illness, and the father on his deathbed expressinghis will that she should have a share of his lands.
It was held by Wood Renton C.J. in the case of Punchi Menike v.Appuhamy1 that the four sets of circumstances set out above are illus-trative and not definitive. He stated “that the ancient standard textbooks on the Kandyan law consists for the most part of reports of, orcomments upon, particular decisions, rather than legal treatises in the'modern sense of the term It is, therefore, not correct to regard themas though they had been set out in a statute as necessary conditions forthe acquisition of binna rights. On the one hand, these sets of circum-stances are not exhaustive but mere instances illustrating the principlesunder which a deega married daughter acquires binna rights. On theother hand, I doubt whether the fact that one or more of these sets ofcircumstances exists, is conclusive in law of the question that a deegamarried daughter has acquired binna rights. They appear to be ofevidentiary value and to create strong presumptions that binna rightshave been acquired. The principle underlying the acquisition of suchrights has been laid down b^ Wood Renton C.J. in the following passagein the case referred to :—
“ A daughter married in deega forfeits her interest in her paternalinheritance, not by virtue of that marriage, but because it involvesa severance of her connection with her father’s house. If that con-nection is re-established on its original basis, if the deega marrieddaughter is once more received into the family as a daughter it isonly reasonable that she should enjoy a daughter’s rights of in-heritance.”
It appears from the observations in the case itself as well as fromobservations in later decisions that emphasis must be laid on the words“ on its original basis The basis existing before a marriage in deegais that the daughter is entitled to certain rights of inheritance to herfather’s property. The question to which a Court has to address itsmind with particularity is whether relations with the daughter have beenresumed on this basis or in circumstances from which this basis canbe inferred. A father, or after his death, his widow and children mayreceive back into the family a daughter married in deega on groundsmerely of compassion or charity or out of affection arising from familyties. She may also be received for the purpose of providing her with .maintenance to which she is in law entitled. In such circumstancesshe would not acquire binna rights of inheritance.
» &917) 19 N. h. R. 86$.
DE SILVA AJ.—Mudiyanse v. Punchimenika.
181
De Sampayo J. in the case referred to said “ the principle underlyingthe acquisition of binna rights, as I understand it, is that the daughter isreadmitted into the father’s family and restored to her natural rights ofinheritance. This, of course, is not a one-sided process; the father’sfamily must intend, or at least recognize, the result Dalton J. in theease of Appuhamy v. Kiri Banda* reviewed exhaustively the previousauthorities and commenting on the first passage which I have quotedabove from the case of Punchi Menike v. Appuhamy (supra) said:—
“ The above extract sets out very clearly a most reasonable pro-position, but the difficulty lies in applying it, to ascertain whetheror not the original basis has reaUy been resumed, whether or not allparties, for example the father in his lifetime, or his sons after hisdeath, have accepted and approved of the position, and whetherthe connection maintained is not merely the connection that adaughter naturally still maintains even after a deega marriage, with herfather, mother, brothers, and sisters. It must, of course, also not belost sight of that the daughter is entitled in any case to return formaintenance. If it can be deduced from this close and constant con-nection in the absence of direct evidence on that point, that thefather has, or after his death her brothers have, by some means orother signified his or their consent that the daughter shall enjoyrights of inheritance to the paternal estate, then it would be difficult tosee on what ground, having regard to what the text writers I havereferred to say, a deega married daughter should not be held to haveregained binna rights. All the cases given seem to require that consentin some form or other, and it seems reasonable that it should beWith this view I respectfully venture to agree. Each case must dependupon its own circumstances, but I do not think that the fact that a deegamarried daughter has returned to the mulgedara or that she has main-tained a close and constant connection with the mulgedara after marriageis conclusive of the question that she has acquired binna rights althoughsuch facts are of great evidentiary value in its determination. It mustappear that the father in his lifetime or the family after his death havemanifested an intention to admit the daughter to binna rights either byexpress declaration or by conduct from which such an intention can begathered. Proof of a course of dealing recognizing such rights will go along way in establishing such an intention.
In the case under consideration it is claimed by the first defendant-appellant that there are a large number of facts from which an intentionto recognize acquisition of binna rights can be gathered. She statesthat her father was instrumental in having the first marriage cancelledand in bringing about another marriage which though not registered wasin every other detail similar to a binna marriage. She states that thechild of the first marriage was left with the first husband and it is arguedthat this fact coupled with the divorce establishes a complete obliterationof the deega marriage and of its consequences. It is claimed that herfather built a house for her on a land held in common between the fatherand her husband. It is also asserted that she attended on the fatherduring his last illness.
i 7 C. L. R. 176.
182
DE SILVA A.J.—Mudiyanse v. Punchimenika.
With regard to the' alleged second marriage the learned Judge has heldthat there is no evidence that the defendant was married in binna.Counsel for defendant admits that it was not registered and therefore notvalid in law. In considering however the question whether binna rightshave been acquired registration of the marriage is not of primary im-portance. It has been held that the forfeiture of rights of inheritanceon a marriage in deega takes place not because of the marriage butbecause of the severance from the family which is a consequence of themarriage (Punchi Menike v. Appuhamy (supra) ). It is not necessary thata deega marriage should be registered for a forfeiture to take place (Tuckeru. Appuhamy4), Similarly for the acquisition of binna rights it is thecessation of the severance that one has to consider. It appears to beclear that the first defendant lived with a man after her divorce. Thelearned Judge should consider whether there was a marriage at all, andthe nature of the incidents accompanying, and consequent on, the livingtogether. If they were similar to those of a binna marriage then in spiteof the absence of registration they tend to indicate the acquisition ofbinna rights.
The learned Judge has held that “ there is some strong evidence indefendants favour”. He has held that she undoubtedly went back tothe father's house. He points out correctly that she does not say, andthat no one else states, that the father expressly declared a wish that sheshould take a share of the inheritance. It appears from his judgmentthat he found the evidence placed before him by both sides unreliable andhe was not able to arrive at safe conclusions of fact. His final decisionis that the first defendant did not reacquire binna rights althoughhe stated earlier that there was strong evidence in her favour. It willappear from what follows that one test which should be applied to thefullest possible extent has not been availed of.
On the question of prescription the learned District Judge held that“ there was no prescription ”, meaning, I take it, thereby that no questionof prescription could arise as the parties were brothers and sisters. Pre-sumably because he held this view he has not examined the manner inwhich the parties dealt with the property of Punchirala since his deathwhich took place so long ago as 1901. In the case of Pipnchi Menike v.Appuhamy (supra) de Sampayo J. examined the dealings of the partieswith the property, and a very important factor in the decision which hearrived at was the nature of these dealings. In the case under consider-ation we have a period over 30 years during which the property hasbeen dealt with after the death of Punchirala. Evidence of the possessionof the property must be obtainable and such evidence, even if not entirelyreliable, is likely to be reliable at least with regard to possession for aconsiderable period immediately preceding the filing of the action.
I think that the parties ought to be given an opportunity of placingsuch evidence before the Court and the learned Judge should considerit very carefully. On the one hand it might disclose that the first defend-ant was in possession of a share of these properties indicating therebya recognition by her brother if not by her father of her acquisition of
* (1930) 32 N. L. A. 41.
DALTON A.CJ.—Perera v. Wickremaratne.
183
binna rights. On the other hand, i£ it discloses that she was not in pos-session it would indicate the absence of such a recognition and it mightindicate also that other parties have prescribed against her.
On the question of prescription the learned Judge has referred to thecase of Hamidu Lebbe v. Ganitha1. I need only say that in that caseEnnis A.C.J. refused to hold that the defendant had established a titleby prescription owing to the unsatisfactory nature of the evidence ledby him—" The defendants, upon whom the burden lay, gave evidence inchief which is contained in five lines of the typewritten record and incross-examination made admissions which militate against his claim tohave prescribed. The defendant called no witnesses”. That case washeard by a bench of three Judges who all approved of the principles laiddown in Tillekeratne v. Bastion * relating to prescription by a co-owner.A fuller investigation of the course of dealing with the property which isthe subject matter of this case and incidentally with other property ofPunchirala during the last thirty years may disclose rights arising byprescription.
I set aside the order of the learned Judge and send the case back foran investigation on the lines indicated. The learned District Judgewill consider the material obtained by such investigation togetherwith all other material which the parties may place before him on theissues framed in the light of the principles I have set out. Costs of thisappeal and of all proceedings up to date will be costs in the cause.
Akbar J.—I agree.
Sent back.