103-NLR-NLR-V-17-PERERA-v.-SETUWA.pdf
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Present : Lascelles C.J. and Ennis* J.PEBEBA ». SETUWA
165—D. ( Kurunegala, 4,919
Kandyan law—Diga-marnei sitter—Htght to * inherit paraveni propertyof deceased sister,
A dt^a-married sister is precluded by her diga marriage frominheriting the paraveni property of her deceased sister.
fJiUE facts are set out in the judgment.
O. Koch, for the plaintiff, appellant.-^-The effect of diga marriageis to prevent a diga-married daughter from inheriting from herparents. She does not by -a diga marriage forfeit a right to inheritfrom a deceased sister.
It has been held that even a di^a-married daughter does not loseher right to inherit from her parents if she maintains a constanttouch with the mulgedara (16 N. 'L. R. 238). Counsel cited Armour50 ; Saury er 1 and 45 ; 478—C. R. Kurunegala, 1,526 (January 23,4914) ; 192—C-.R. Matale, 9,722 (July 30, 1912).
J. S. Jayewardene, for the respondent.—By a diga marriage awoman loses all rights to inherit the paternal property. Evenproperty which a daughter inherits on the death of her parents ceasest^o be her property the moment she marries in diga. The principleof inheritance is that the paternal property should always remainin the family. Counsel cited Armour 50, 6 N, L. R. 133% 5 Leader39, 7 N. L. R. 100, 2 N. L. R. 92.
Koch, in reply.
Cur. adv. v%dt.
-July 1, 1914. Lascelles C.J.—
This case raises the question whether, under .Kandyan law,' adiga-m&rried sister is precluded by her diga marriage from inheritingthe paraveni property of her deceased sister.- Moluwa Duraya diedabout thirty-six years ago, leaving five children, one of whom, a■daughter, Pini, died without issue. Her share in the paternalinheritance was one-fourth, as her sister Bilindi had been marriedout in diga, presumably in her father’s lifetime. Bilindi, inNovember, 1910, by deed No. 995 purported to sell a one-twentiethshare, being her share in Pini’s inheritance, to the plaintiff, who isnow bringing a partition action for the share.
m
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1914.
Lascblles
0.«T.
Perera v.*3eUiiva
The eases of Dingiri Menika v. Appuhami,l Dullewe v. Duilewe *Dinga v. Hapuwa,* and Kiriwatte v. Qenetirala 4 throw little lighton the matter now in question, as the question is now with regardto paternal paraveni property, and not to acquired property.
The position assumed by the appellant is a curious one. Bilindiby her diga marriage unquestionably forfeited any share in thepaternal estate. It is now contended that on the death of hersister without issue she is entitled to come in and claim a share ofthe same estate.Thisseemstome opposed to the recognized
principles of Kandyan law.
Mr. Modder (page 178) lays down the proposition for which therespondent contends without doubt or qualifications:“If a man
died without issue and intestate, leaving a sister married out indi$a, and a brother, the latter will succeed to the deceased's shareof the paternal paraveni lands to the exclusion of the diga-marriedsister, whether the saidsister hadbeen so married away previous
bo the demise oftheirfatherorsubsequently.” So, where the
deceased leaves a brother and an unmarried sister; the share devolveson them in common, but if the sister is afterwards married in diga,she forfeits her share and the whole goes to the brother.
I cannot doubt the correctness of this statement of the law,which is supported by several authorities. For example, in Armour43 (8. 19), under the heading ** Bights of Brothers and Sisters,” thewriter, after laying down the proposition that a diga-marrieddaughter, whether married before or after the father’s death, isexcluded from a share in the paternal estate, proceeds as follows: —” If the deceased left a brother and an. unmarried sister, hisshare of the paternal paraveni property will of coursedevolve to the survivors jointly; but in the event ofthe sister being afterwards married away in diga, she willtherebybe deprivedofher title to participate in the
possession ofthesaidlands, whichwill then remain
entirely to the surviving brother.”
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This passage shows that by Kandyan law the disqualification ofa diga marriage operates after the father's death, and after thechildren who succeededhimmightbe thoughtto have acquired
vested interests. The Kandyan law appears to regard the paternalestate as still subsisting after the heirs have' entered on theinheritance./J
The next passage is still more to the point. A family consists oftwo brothers * and a diga-married daughter. The first brother dieswithout issue, and his share devolves on the second brother. Thesecond brother then dies leaving a widow and a child.* Then the
*6 N. L. R. 133.3 7 N.L. R. 100.
5 Leader Reports 39.4 2. Ar.L. R. 92.
* [In this illustration the child predeceases the widow (mother). The widowtakes a share by right of her child.—Ed.]
share of the first brother, which had devolved on the second brother,is divided between the di^a-married sister and the second brother’swidow. In this example, what is now in dispute is taken for granted.On the death of the first brother, the whole of his share goes tothe surviving brother to the exclusion of the diga-married sister.
I think the District Judge• has arrived at a correct conclusion,and I would dismiss the appeal with costs.
Emns J.—I agree.
1914.
lASomuii)
C.J.
Ptnrav.
Setuwo,
Appeal dismissed.