011-NLR-NLR-V-27-PEIRIS-v.-KIRIBANDA.pdf
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1925.
Present: Ennis A.C.J. and Dalton J.
PEIRIS v. KIRI BANDA.
82—D. C. Kandy, 31,963.
Kandyan law—Sale of property by Kandyan woman before rharriage—Subsequent marriage in diga—Forfeiture of rights.
Where a Kandyan woman, after her father’s death, alienatedproperty which passed to her by inheritance and then married outin diga.
Held, that such marriage in diga did not deprive the purchaserfor valuable consideration of his rights to the property sold.
rpHIS was a partition action instituted by the plaintiff, appellant,-L who claimed a share of the land on a transfer to him by onePunchi Menika. Punchi Menika was a daughter of Ukku Banda,admittedly the original owner of the land. At the time of thetransfer by her, her father, Ukku Banda, was dead. Punchi Menikawas unmarried, and was living at the mulgedera. Some time aftershe married out in diga.
The learned Judge dismissed plaintiff’s action on the ground thathe had no title, as Punchi Menika married out in diga, and hadthereby lost her rights of inheritance from her father, Ukku Banda.
From this judgment the plaintiff appealed.
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Navaratnam, for plaintiff, appellant.—It is not denied that PunchiMeniha, vendor to plaintiff, had title to a share of the land at thetime of the transfer, as her father was then dead and she was livingat the mulgedera. This must be taken to be a vested right whichhas now passed on to the plaintiff. Her going out in diga subse-quently cannot take away the right already acquired by a thirdparty for value.
The District Judge merely says that any ruling to the contrary“ would be entirely contrary to the spirit of the customary law.”There is no evidence of what that customary law is.
It must be confessed that there is no authority directly inpoint.
There is one authority that deals with the converse case. Thatis Appuhamy v. Kumarihamy.1 There it was held that reacquisitionof binna rights by a Kandyan woman did not give her title toproperty already alienated by the others.
The appellant, therefore, has title to the share claimed, and shouldsucceed.
Weerasuriya, for defendant, respondent.—The learned DistrictJudge must be taken to know the customary law. It is no doubtunfortunate that no evidence has been led. The reason may bethat the custom is so well known that it was thought no questionwould arise. If that were so, no injustice would be done, as thepurchaser would have known that he was taking a risk in buyingproperty under these conditions.
The right that a Kandyan woman has to an inheritance is a“ temporary joint interest.” See Sawyer, p. 1. On her marriageout in diga she loses that temporary interest. It is immaterialwhen that marriage out in diga takes place.
(Ennis A.C.J.—These rules of Kandyans were meant to bepersonal rules, and they are very good ones too at that, e.g., the rulere support of diga married sisters in case of destitution, but theycannot be made to apply to a third party.
There is clear authority for the proposition that when a womanafter her father’s death marries out in diga, she forfeits all rightsto her inheritance. The fact that she has transferred her rightsto a third party ought not to make any difference. Counsel citedMeera Saibo v. Punchirala2 and Ran Etana v. Nekappu *
Navaratnam (in reply).—Your Lordships are at liberty in a case,such as the present one, in the absence of custom, to apply theCommon law rule which would be applicable to a similar case.Reference may be made to section 5 of Ordinance No. 5 of1852.
1 (19i 2) 24 N. L. R. 109.8 (1910) 13 N. L. R. 176
8 (1911) 14 N. L. R. 289.
1925
Petrie v.Kiri Banda
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1926. July 14, 1925. Ennis A.G.J.—
Petris This was an action for partition. The learned Judge dismissedKiri Banda the plaintiff’s action on the ground that he had no title. Theplaintiff purchased the land in question from a Kandyan womanwhile she was still living unmarried in the mulgedera after herfather’s death, that is, after the property had passed to her byinheritance. After alienating the property to the plaintiff, shemarried in diga. The learned Judge has given two judgments inthis case. In the first he found the facts which are not contestedon'the appeal, and he finished the judgment by saying that “ PunchiMeniha married out in diga, and has thereby lost her rights ofinheritance from her father, TJkku Banda.” After giving thisjudgment, the learged Judge appears to have heard further argu-ment and written another judgment on the question alreadydecided in the first. The second judgment Was to the same effect,namely, that Punchi Menika had lost her rights. The learnedJudge does not cite in either of the judgments any authority forthe principle that an alienation by a woman who at the time wasentitled to the property would be bad by the subsequent digamarriage by that woman. He merely says that any ruling to thecontrary “ would be entirely contrary to the spirit of the customarylaw.” There is no evidence on record, in this case as to thecustomary law affecting the point at issue, and, in the absence ofevidence, the spirit of the customary law must be gathered from text-books and previously reported cases. It is conceded by counsel whohave argued this appeal that there is no authority directly in point.A number of cases have been cited, among them Meera Saibo v.Punchirala (supra), RanEtanav. Nekappu (supra), and an unreportedcase Dingirihamy v. Mudalihamy,x all of which establish the proposi-..tion that a woman, who after her father’s death, that is, after shehas actually inherited her father’s property marries in diga, forfeitsthe rights already acquired. But, for the further proposition thatthe forfeiture operates against a third party who has acquired forvaluable consideration from the woman during the time that thewoman was the only person holding the legal title, no cases havebeen found.
Mr. Navaratnam for the appellant has cited to us section 5 of theOrdinance No. 5 of 1852, under which in such a case the Court isdirected to have recourse to the law in force in the maritime provin-ces, and he has cited the case of Appuhamy v. Kumarihamy (supra)where a kindred point came up in appeal. There it was a questionas to whether the reacquisition of binna rights gave any title toproperty which had been alienated before the date of the reacqui-sition, and it was held that the reacquisition of binna rights by aKandyan woman did not give her title to property alienated bythe other heirs, before she reacquired the binna rights.
1 5. C. M., October IS, 1912.
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Against this, Mr. Weerasuriya has cited a passage in Sawyer,p. 1, that “ daughters while they remain in their father's househave a temporary joint interest with their brothers in the landedproperty of their parents. But this they lose, when given out inwhat is called a diga marriage, either by their parents or brothersafter the death of the parents.” It is suggested that this referencerelates to title to land; and it is further suggested that an unmarrieddaughter’s right in the land after the death of her father is a limitedright, and may be lost by and when there is a subsequent digamarriage. It is unnecessary to refer to the passages in Armour,Modder, and Hayly. They all go back to the same source. Thepassage in Sawyer is the foundation of the principle I have alreadymentioned, which was accepted as the law in the case of MeeraSaibo v. Punchirala (supra). But it seems to me that it goes nofurther than this, and does not establish the proposition found by. the District Judge, or show that the spirit of the Kandyan law isto deprive a purchaser for valuable consideration of his rights bymaking the right of an unmarried daughter a limited right.
In my opinion the basis underlying the Kandyan law withreference to land held by members of the family is the right of themembers of the family to support by the family so as to createcustoms and rights in the family itself and between the membersof the family alone. Sawyer on page 4 gives an illustration of thisprinciple. He says that daughters are bound to accept the husbandsprovided for them by their brothers, and must go out with thechosen ones in diga. But according to Sawyer if such a marriageturns out badly, and the wife has to return to the mulgedera, thenthere is an obligation on the brothers to make provision for theirunfortunate sister and her children out of the family estate. Itseems to me that this is a liability which attaches to the brothersas members of the family, and it is not an obligation creating atie on the land. At any rate not a tie which binds the land whenthe land itself has passed to persons who are strangers to thefamily. If that be so, then the spirit of the Kandyan law wouldmake the obligation to which the learned Judge refers a familyobligation only. So .far as this land is concerned, I prefer tofollow the principle I have already enunciated with regard to thereacquisition of binna rights. Even as the reacquisition of binnarights will give no title to lands which have passed outside theownership of the members of the family, so the forfeiture of digarights will not revest in the brothers lands which the womanalienated as of right before marrying in diga.
I would accordingly allow this appeal, set aside the decree appealedfrom, and send the case back for further proceedings and partition.The appellant should, in my opinion, have the costs of the appeal.
Dalton J.—I concur.
1926.
Ennis A.C.J.
Petris v.Kiri Banda
Appeal allowed.