PERERA, Appellant, and ASELIN NONA and another, Respondents

021-NLR-NLR-V-60-PERERA-Appellant-and-ASELIN-NONA-and-another-Respondents.pdf


BASNAYAKE, C.J.—Perera v. Aselin Nona
73
Present: Basnayake, C.J., and K. D. de Silva, j.PERERA, Appellant, and ASELIN NONA and another, RespondentsS. C. 311—D. C. Panadura, 3,306
Kandyan Law—Diga married woman—Re-acquisition of binna rights—KandyanSuccession Ordinance, s. 2 (b).
Under Kandyan Law, a woman who marries in diga and returns to herparental home on the death of her diga husband and after the death of herparents cannot by mere residence in her parental home acquire the rightsof a binna married daughter if she marries a second time while residing ini : e house of her deceased parents. To establish re-acquisition of binnarights, she must prove that those who inherited her parental propertywhen sin.' was out in diga agreed to share it with her.
A
/APPEAL from a judgment of the District Court, Panadura.
N. E. Weerasooria, Q.G., with Cecil de S. Wijeratne and B. S. C.Batu-atte, for Plaintiff-Appellant.
Sir Lalita Bajapakse, Q.C., withDefendant-Respondent.
R, P. GoonetiUeke, for 1stCur. adv. wit.
June 18, 1958. Basnayake, C.J.—
The main question that arises for decision on this appeal is whetheror not the deceased Nandawathie contracted a marriage in binna withPiyasena Ranatunge (hereinafter referred to as Ranatunge), her secondhusband, the first Don Marthenis Wijemanne (hereinafter referred to asWijemanne) having predeceased her.
It is common ground—
(а)that Nandawathie was subject to the Kandyan Law and thatRanatunge was not,
(б)that the former succeeded to a half share of the property of herdeceased husband Wijemanne, also a person not subject to the KandyanLaw, and
that on her death her property did not pass to Ranatunge.
The learned District Judge holds that Nandawathie’s marriage withWijemanne in 1921 was a marriage in diga and that her marriage withRanatunge in 1932 was a marriage in binna. The former of these findingshas not been challenged in appeal by either side; but the appellantchallenges the latter. The learned Judge also holds as a fact that Nanda-wathie’s marriage with Ranatunge was not arranged by the elders ofeither side and that in view' of the circumstances under which they gotmarried it must have taken place “ without much publicity ”.
At the time of her second marriage Nandawathie had been a widow forthree years and her parents were dead. She was the mother of twochildren by Wijemanne. Ranatunge who was eleven years her junior
lxf
OT W ti m t re« /i i lea
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BASNAYAKE, C.J.—Perera v. Aselin Nona
in age was an assistant English teacher in a school nearby. She hadbecome pregnant through her intimacy with him. Four days beforethe birth of the child they got married at the Registrar’s office at Yati-pahuwa, a place within the province of Sabaragamuwa, one of theKandyan provinces. Although the marriage was registered in an areato which the Kandyan Marriage Ordinance applied the registration wasunder the Marriage Registration Ordinance and not under the KandyanMarriage Ordinance. It should be noted that the Kandyan MarriageOrdinance then in force did not preclude the registration of a marriagebetween a woman subject to Kandyan Law and a man not subject toKandyan Law as now under the Kandyan Marriage and Divorce Act,No. 44 of 1952, which confines registrations under that Act to easeswhere both parties are subject to the Kandyan Law. If the marriage hadbeen registered under the Kandyan Marriage Ordinance the registerwould have indicated whether the marriage was in binna or diga. .Suchan entry though not conclusive proof of the fact that the marriage wasin binna or diga would be an indication of the kind of marriage the con-tracting parties had in mind and is binding as far as they and theirrespective representatives in interest are concerned (Mampiti’ja v.Wegodapola1). The fact that the parties chose to have their marriageregistered under the Marriage Registration Ordinance when they couldif they so wished have registered their marriage under the KandyanMarriage Ordinance is an indication that they were not thinking of t heirmarriage in terms of binna or diga.
The learned District Judge’s decision that Nandawathie’s marriagewith Ranatunge was a marriage contracted in binna cannot be sustainedas it is based on an erroneous view of the law which he states thus in hisjudgment: “ the essential factor of a marriage in binna is that thehusband comes to live with the wife ”. Later in his judgment bo .-urasup his view thus : “So that in my view when Ranatunge married Xamla-wathie and lived with her he was contracting a binna marriage ”.
A marriage in binna is a marriage in which the husband agrees to livein his wife’s parental home after the marriage, subject to the incidents ofsuch a marriage in order that she may not lose her right to inherit herparental property. A marriage in diga takes place when a woman isgiven in marriage and is in accordance with the terms of the contractremoved from her parental home and makes her husband’s house her home.In a diga marriage, subject to certain exceptions, the woman forfeits herinheritance. But she can regain those rights if she returns and settlesdown in her parental home and as indicated later in this judgment isadmitted to the inheritance by those entitled to do so. In view of thefact that rights of succession to parental property are involved the parentsof the wife must be consenting parties to a binna marriage. Where thehusband and wife and her parents agree that she and her husband shouldmake her father’s house their home after the marriage, the marriage is abinna marriage in her father’s house. Similarly where the husband andwife and her parents agree that she and her husband should make hermother’s house their home after the marriage, it-is a binna marriage inher mother’s house. The rules of inheritance are not the same in each1 (1922) 24 N. L. R. 129.
BASNAYAKE, CJ.J.—Perera v. Asetin Nona
IS
case. There is also a difference in the authority exercised over the hus-band. In the one case it is the father who has authority over him andcan expel him, in the other it is the mother (Armour, Ch. Ill sec. 6).
The husband occupies a subordinate position in the case of a binnamarriage. He has no power over his wife’s property. He may beexpelled by his wife or her father or mother according as the marriagehas been in binna in the father’s house or in the mother’s house.According to both Sawers and Armour a binna marriage “ occurs only inthe case of the bride being an heiress or the daughter of a wealthy family,where there are few sons ” (Sawers, Ch. VII sec. 4 ; Armour, Ch. II sec. 2).This statement cannot be regarded as excluding binna marriages forreasons other than preserving the wife’s inheritance. Perhaps it isfounded on the fact that generally speaking except for the purpose ofenabling his wife to retain her rights to her inheritance a man would notbe too ready to accept the subordinate position of a binna husband.
A woman who marries in diga has a right to return to her parentalhome on the death of her diga husband and there to have lodging andsupport and clothing from her parents’ estate; but she cannot by mereresidence in the parental home acquire the rights of a binna marrieddaughter if she marries a second time, while residing in her parents’ home(Sawers, Ch. 1 sec. 3). Simon v. Dingiri and others 1. Where the parentalproperty has devolved on the heirs entitled to succeed to that propertyon the death of her parents, a diga married daughter who returns to theparental home and re-marries and remains there does not by that factalone become entitled to a share of the parental property in the sameway as if she had contracted a marriage in binna during the life-time of herdeceased parents. For her to become entitled to a share in her parentalproperty and the marriage to be regarded as a binna marriage those whosucceeded to that property when she was out in diga must agree to giveher a share. Such an agreement may he indicated either expressly by anotarial instrument or by an unequivocal course of conduct. As acourse of conduct has to be established by oral evidence or by referenceto a series of documents or both, by far the better way of admitting awoman to binna rights would be by an instrument in writing attested by anotary. The very useful observations on this topic of L. M. D. de Silva,A.J. in the case of Mudiyanse v. Punchimenika 2 bear repetition. Hesaid, “ I do not think that the fact that a deega married daughter hasreturned to the mnlgedera or that she has maintained a close and constantconnection with the mnlgedera after marriage is conclusive of the questionthat she has acquired binna rights although such facts are of great evi-dentiary value in its determination. It must appear that the father inhis life-time or. the family after his death have manifested an intentionto admit the daughter to binna rights either by express declaration or byconduct from which such an intention can be gathered. Proof of a courseof dealing recognising such rights will go a long way in establishing such anintention. ” In an earlier case De Sampayo J. (Punchi Menika v.Appuhamy3) expressed the same idea tersely thus : “ The re-acquisitionof binna rights is not a one-sided process, the father’s family must intend,or at leaat recognize, the results. ”
1 {1916) 3 O. W. B. 55.8 (1933) 35 N. h. B. 179 at 181.
3 (1911) 19 N. L. B. 353
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BASHAYAKE, C.J.—Perera v. Asdin Nona
This reluctance to recognise claims to the re-acquisition of binnarights after the death of the parents when rights to property have vestedin others, without clear proof that those who succeeded to the propertyhave signified their intention expressly or by unequivocal conduct topart with their rights to the property to the extent of giving the digadaughter who has returned the share she would have got had she not goneout in dig a, runs through our decisions. Any other rule will throw thesuccession to property among Kandyans into a state of confusion. Besides,those who have inherited property and acquired rights cannot be deprivedof them by the unilateral action of another who had forfeited her rightsto the inheritance. There must be consent on their part to such a depri-vation or the surrender of their rights must be voluntary. In thisconnexion it is sufficient for the purpose of this appeal to mention onlythe cases of Appuhamy v. Kumarihamy l, Appuhamy v. Kiri Banda et al. 2and Simon v. Dingiri and others 3. In the last mentioned case a digamarried woman returned to the parental home about ten years after shehad married in diga and after the death of her father and lived there forsome time until she married another man and remained in her father'shouse. Shaw A.C.J. in holding that she did not acquire binna rightsobserved—“ it would be most inconvenient if the law were otherwise,for it would be impossible to tell upon the death of an owner of theproperty who the heirs were, if daughters who had been married in deegawere entitled, years after their father’s death, to return to the propertyand claim to acquire rights to it on that ground ”.
In the instant case it is not disputed that Nandawathie married Wije-manne in 1921 and that ho died in 1929, and that the marriage withRanatunge took place in 1932 when both her parents were dead. As thefirst marriage of Nandawathie has been held to be in diga those who assertthat her second marriage was in binna must prove that she re-acquiredbinna rights. Although the evidence is not all one way (Ranatungesays they lived in the school, Muttetuwegama the ex-Ratemahatmayasays they lived in the house of her brother Yasaneris, and Dharmadasaher son by Wijemanne says they lived in her father’s house), assumingthat Nandawathie returned to her paternal home about 8 years aftershe went out in diga, and that after her marriage with Ranatunge sheresided there, there is no evidence at all that those who had inheritedher father’s property intended to share it with her.
Marriage is primarily a matter of contract between the parties to it.The evidence of Ranatunge the surviving party to that contract is thathe never consented to a marriage in binna and that they never lived inthe parental house. The absence of any evidence that those who inheritedher paternal property intended to treat Nandawathie as if she had notmarried Wijemanne in diga by giving her a share of what they inheritedconcludes the matter. Ranatunge’s evidence that the marriage was notarranged by any one in loco parentis and that he did not contract a marriagein binna with Nandawathie is supported by the absence of evidence ofintention to admit her to the inheritance. Ranatunge’s children weretherefore not persons subject to the Kandyan Law because they do not
1 (1922) 24 N. L. JR. 109.
3 (1916) 3 O. W. B. 65.
3 (1926) 4 Times 75.
The Attorney-General v. Seneratne
77
fall within the ambit of section 2(6) of the Kandyan Succession Ordinancewhich provides that the issue of a marriage contracted in binna betweena woman subject to the Kandyan Law and domiciled in the Kandyanprovinces and a man not subject to the Kandy anLaw shall be deemedto be and at all times to have been persons subject to the Kandyan Law,Nandawathie’s children by Ranatunge are dead. Succession to theirproperty is governed by the Matrimonial Rights and InheritanceOrdinance.
We therefore set aside the interlocutory decree entered by the learnedDistrict Judge and direct him to enter a fresh decree on the basis thatthe rights that devolved on Nandawathie’s death on her children byRanatunge passed on their death according to the rules of inheritancecontained in the Matrimonial Rights and Inheritance Ordinance.
The appellant is entitled to his costs both here and below. They shouldbe paid by the 1st defendant-respondent.
K.D. Dti Silva, J.—I agree.
Appeal allotoed.