091-NLR-NLR-V-19-PUNCHI-MENIKE-v.-APPUHAMY-et-al.pdf
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Present : Wood Benton' C.J. and De Sampayo J.
PUNCHI MENIKE v. APPUHAMY et al.
414-416—D.C. Batnapura, 2,076.
Pigs marriage ofdaughter—Re-acquiringbinnarights—Prescription
among co-owners.
A daughter married in diga can regain, even after her father’sdeath, binna- rights daring the lifetime of her husband and withoutany divorce from him, or re-marriage in binna, by maintaining aclose and constant connection with the mulgedara.
There may be prescription among co-heirs where there is anovert act of ouster or something equivalent to ouster. But whatmight be acts of adverse possession against a stranger have, inquestions arising between co-heirs, to be regarded from the stand-point of their common ownership.
rp HE facts are set out in the judgment.
Zoysa, for the appellant in No. 414.
Bawa, K.C., and W. H. Perera, for the appellant in Nos. 415and 416.
R. L. Pereira, for plaintiff, respondent, in all the appeals.
Cur. adv. vult.
January 30, 1917. Wood Renton C.J.—
This is a complicated partition action, the trial of which hasproceeded before four different District Judges. The DistrictJudge who actually disposed of it did not himself hear most of theevidence, and a most regrettable delay of about nine monthsoccurred between the close of the trial and the delivery of thejudgment.
•The lands sought to be partitioned are valued at about Rs. 8,000,and are set out in two schedules to the plaint. The plaintiff claimsa one-fifth share of the lands in the first schedule, and a one-sixth: share of the lands of the second schedule, by right of inheritance.
. The property originally belonged to Hamy Lekama, who diedfifty or sixty years ago. He left six children, namely, (i) DingiriMenika, (ii) Hamy, (iii) Punchi Mahatmaya, (iv) Ban Menike, (v)Kiri Menike, and (vi) Punchi Menike, who is the plaintiff. Thefirst defendant is a son of Dingiri Menika, Ban Menike is the seconddefendant, Punchi Mahatmaya is the third, and -the fourth to theeleventh defendants represent Kiri Menike. There are, besides,two added defendants, of whdtn, the first, Kiri Appuhamy, claimsunder Punchi Mahatmaya, and the second, Mr. Tencekoon, claims
1917.
1917.
Woo©
Renton C.J.
Punch*Menike v.Appuhamy
(354 )
under Dingin' Menika, by deeds of transfer which are of compara-tively recent date. Hamy, the second son of the original owner ofthe lands, died intestate and without issue, after having transferredhis interests to his bother, Dingiri Menika. One of the main issuesraised and contested in the District Court was the question whetherPunchi Mahatmaya was a son of Hamy Lekama. The learnedDistrict Judge, after hearing evidence on both sides, answered thatquestion in the affirmative, and his decision upon that point wasnot challenged at the argument of the present appeal. The remain-ing issues were (i)* whether the three daughters of Hamy Lekama,Ran Menike, Kiri Menike, and Punchi Menike, were or were notmarried in diga, and whether, if so, they had thereby forfeited theirclaim to a share in their father’s estate; and (ii) the rights of theadded defendants above referred to. The learned District Judgeheld on the evidence that all three daughters had been married outin diga. There is no appeal against this finding by the fourth tothe eleventh defendants, who claim under Kiri Menike, and we are,therefore, no longer concerned with that part of the case. But theDistrict Judge also held that, while Punchi Menike had been marriedout in diga, she had re-acquired binna rights by subsequentlyreturning to the mulgedara, and that neither her brother DingiriMenika nor her sister Ran Menike had acquired as against hertitle by prescription to her share of the inheritance. In dealing withthis point, the District Judge says incidentally that there can be noquestion of prescription between co-heirs. That is, of course, toogeneral a statement, which the decision of the Privy Council in|Corea v. Appuhamy1 does not support. There may be prescription!among co-heirs where we were in the presence of an overt act of ousteror of something equivalent to ouster. But what might be acts oiadverse possession against a stranger have, in questions arisingbetween co-heirs, to be regarded from the standpoint of their <common ownership. The Kandyan law as to the circumstances inwhich a woman married in diga can regain her interest in thepaternal inheritance is somewhat obscure. But it has been inter-preted by a long series of local decisions, from which, I think, itwould now be unwise to depart. The general rule undoubtedly, isthat when a woman marries in diga, that is to say, when she is givenaway, and is, according to the terms of the contract, conductedfrom the family house, or mulgedara, and settled in that of herhusband, she forfeits her right to inherit any portion of her father'sestate. But this forfeiture was an incident, not so much of themarriage, as of the quitting by the daughter of the parental roof toenter another family,* and the status which the daughter wouldhave enjoyed if she had been married in binna—that is to say, ifunder the contract her husband had been received by her parentsas a member of her family and had come to live with her ip the
5i
2 Kalu v. Howtoa Kiri, (1892) 3 C. L. <R. 64,
ft
i (1912) A. C. 230.
( 365 )
mulgedara in that capacity—can be acquired in various ways, asclearly recognized as the general -rule to which they are exceptions.A diga married daughter will regain binna rights1—
(а)By being recalled by the lather and re-married in binna;
(б)By her lather, on her return to his house along with her
husband, assigning to them and putting them in possessionof a part of his house and a specific share of his lands;
On her returning home along with her husband and attending
on her lather, and rendering him assistance until his death;
On her coming back and attending on and assisting her father
during his last illness, and the father on his deathbedexpressing his will that she should have a share of his lands.' The question at issue in the present case is whether a wife marriedin diga can regain, even after her father's death, binna rights duringthe lifetime of her husband, and without any divorce from him orre-marriage in binna, by maintaining a close and constant connectionwith the mulgedara„ and, iu particular, by leaving one or more,children of the diga marriage to be brought up, or herself bringingthem up, there. The learned District Judge has answered thisquestion in the affirmative, and, in my opinion, has done so rightly,both on principle and on authority. A daughter married in digaforfeits her interest in her paternal inheritance, not by virtue ofjthat marriage, but because it involves a severance of her connectionwith her father's house. If that connection is re-established on itsOriginal basis, if the diga married wife is once more received into thefamily as a daughter, it is. only reasonable that she should enjoy adaughter’s rights of inheritance. So much for the principle under-lying the problem that has to be solved. We come now to theauthorities. There is no express statement ic any of the text bookson Kandyan law adverse to the ruling of the District Judge oh thelegal issue above mentioned. The only judicial decision of thatcharacter is to be found in the recent ease of Simon v. Ding in,2 inwhich it was held that, where a Kandyan woman, who was marriedout in diga, ten or fifteen years afterwards returned to the mulgedarasubsequent to the death of her father and married a second time inbinna, she did not acquire any rights to the paternal property. In(that case, however, the attention of the Court was not apparentlydirected to the trend of a strong current of judicial authorityhmning in the contrary direction, and impliedly recognized in thecase of Dingiri Menika v. Appuhamy,a which Simon v. Dingiri3purported to follow. It is argued, however, in the first place, thatthe instances given in the text books on Kandyan law of the circum-stances in which a diga married daughter can recover binna rightsare definitive and not merely illustrative; and, in the second place,that, if the ruling of the District Judge in this case were affirmed,
1917.
Wood
Rknton OJ.
Punch*Menike v.Appuhamy
1 See Madder's Kandyan Law, 2nd* (1916) 3 Ceylon W. R. 55.
ed., pp. 460 el seq.« (1915) 4 Bal. N. C. 66.
r
U
ii
2
( 356 )
1917.
Wood
Benton C.J.
PunchiMenike t>.Appuhamy
the general principle that a diga married daughter forfeits her sharein the paternal inheritance would be abrogated altogether, since shecould set cside the forfeiture at her own pleasure by periodicalvisits to her father's house. I will deal with each of these pointsbriefly in turn. It must be remembered that the ancient standard'text boohs on the Kandyan law consist for the most part of reportsof, or comments upon, particular decisions, rather than legaltreatises in the modem sense of the term. But in point of fact, asI will show in a moment, authority is not wanting even in thesetext books for the proposition of law involved in the decision of theDistrict Judge upon this point. As regards the argument ab incon-tienienti, it is obvious that the question whether a diga marrieddaughter has regained binna rights must always be one of fact, andthe 0"rt would have in each case to consider whether the evidenceaffirmatively proved that she had been received back into herfather's family as a daughter.
I pass now to the judicial decisions, apart from Simon v. Dingin'to which I have already alluded. The earliest authority is theMad&welletenne case,* decided as far back as 1834. Much turns uponthis decision, and I propose, therefore, to cite the report of it in full,“ A father dying about 1814 left six pellas of land, and on hisdeathbed gave a talpot to his son, the defendant, telling him tosupport his mother, to whom he gave two other talpots, and whotook the produce of one of the pellas till her death, which happenedabout 1826; from that time the defendant, her son, took theproduce of this pella as well as of the other five. The presentaction was brought for a share of the land by a daughter who hadbeen married in diga, but who, it appeared, had frequently residedat her father's house, where several of her children were born; itfurther appeared that she and her children were in a state of desti-tution. The talpots given to the mother were not to be found. Inhis answer the defendant stated with great particularity the divisionsmade by his father of his lands, alleging all those which he nowpossessed had been bestowed on him by his father, and that hissister, the plaintiff, had forfeited those which had been given to herfor non-performance of Government services, but of his he offeredno proof. The assessors in the original Court were of opinion thatthe plaintiff, in consideration of (her) distressed circumstances, wasentitled to the pella which (her) mother had enjoyed; the JudicialAgent, that she was only entitled to support for her life; but onreference to the Court of the Judicial Commissioners (this beingbefore the new Charter came into operation), that Court decreedthat she was not entitled to anything. On appeal to the SupremeCourt, it was decreed that the plaintiff be put into possession of thepella possessed by her mother till her death. The Supreme Courtadopted the opinion of the assessors in the Court of Madewelletenne 1
1 (1916) 3 Ceylon W. R. 55.8 (1884) Marshall's Judgments 329.
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for the following reasons: ‘ Independently ofthe state of destitution1M7.
$n which it appears that the plaintiff now is, and whioh of itselfWooi$
wdiild entitle her to some assistance from the estate of her Rbntok O.ST.deceased parents. It appears that, thoughshe married in diga,puncM
she always kept up a dose connection with her father’s house, Menike v.in which, indeed, three of her children were bom. Anotherreason is, that the defendant, although he undertook to assert inhis answer that the plaintiffs had received a share of the parentallands which he even specifically described, yet has not shown thatshe did receive any part thereof. Again,it appears that the
father, on his deathbed, gave one talpot to the defendant, and twoothers to his wife; what has become of these two latter olas does notappear. But it'is not improbable that one of them may have beenintended for the plaintiff, more especially considering the frequencyof her visits to the parental residence.* ”
It seems to me to be reasonably clear from the mere language ofthis report that at least one of the grounds on which the plaintiff’sright to the pella to which she was declared entitled was upheld bythe Supreme Court was the fact that, in spite of her diga marriage,she had maintained a close connection with her father’s house, inwhioh, indeed, three of her children were born, and that the ratiodecidendi was that by so doing she had a right to share as a daughterin his inheritance. The MadeweUetenne case1 has been consistentlyinterpreted by the Courts in that sense. Pereira cites it in his
Collection3 as an authority for the following proposition:“ A
marriage in diga does not divest the wife of her inheritance whereshe has always kept up a close connection with her father’s house;and this independently of the state of destitution in which she maybe, and which of itself would entitle her to some assistance from theestate of her deceased parents.”
In the case of Dingiri Amma v. Ukku Banda,3 Pereira J. also quotesit as an authority, and it has been adopted in the same sense by aBench of two Judges in Appuhamy v. Kiri Menika,** in which all theprevious relevant decisions are reviewed. There is nothing in Hieearlier cases that conflicts with the interpretation put by the SupremeCourt on the Madeivelletenne case1 in this series of authorities, andin my opinion the rule thus laid down should now be adhered to.
My brother De Sampayo has analysed the evidence as to the positionof the plaintiff in the present case, and it is, therefore, unnecessaryfor me to deal with it. I entirely agree with the conclusions atwhich he has arrived on that point, and on the only remaining issueas to whether the evidence of prescriptive possession is sufficient todisplace the plaintiff’s right to share in her father’s inheritance.
I would dismiss the appeal with costs, subject to the modificationmentioned by my brother.
* (1884) Marshall's Judgments 329.s (1905) 1 Bal. 193.
a Volume II., p. 173.* (1912) 16 N. L. R. 238.
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1017.
PtmchiMenike v.Appukamy
( 358 )
De Sampayo J.—
The principal question raised in all these appeals is whether theplaintiff, who is a daughter of Hamy Lekama of Muduwe, deceased,is entitled to share the father's inheritance with her brothers, thethird defendant and Dingiri Menika, the father of the first defendant.According to her marriage certificate she was married in diga toPinhamy of Pelmadulla in the year 1874, and in my opinion herattempt to prove by oral evidence that she was in fact married inbinna has failed. But she, in the second place, maintains, and theDistrict Judge has found in her favour, that she subsequentlyregained binna rights. As regards the law bearing on this point,the passages in the text books as to the circumstances in whichbinna rights can be regained are not very clear, and are capable' ofbeing interpreted either as giving instances or as stating conditions,but these passages and the judicial decisions have been consideredin Appukamy v. Kiri Menika.1 There a daughter had, after herfather's death, been married out in diga, but one of her children wasleft in the mulgedara and was brought up by her mother, and sheherself had kept up a close and constant connection with themulgedara, and it was decided that in these circumstances she re-acquired the status of a binna married daughter and was entitledto inherit the father's property. Mr. Bawa, for the first defendant-appellant, invited us to review that decision on the ground that theKandyan law recognized the rights of a diga married daughter topaternal inheritance only in such special cases as those mentionedat pages 66 and 67 of Armour’s Kandyan haw. This point wasconsidered in Appukamy v. Kiri Menika,1 and I think it desirablein the somewhat doubtful state of authorities to adhere to thatdecision as a correct exposition of the law on this subject. It istrue that, as pointed out by Mr. Bawa, “ keeping up a close andconstant connection with the father's family ” is something in-definite, and oral evidence of it is calculated to introduce an elementof uncertainty into the title of other members of the family. Butthis uncertainty is no greater than in the case where the question iswhether the. marriage itself was in binna or diga, or in those othercases where it is allowed a diga married daughter may, under certaincircumstances, re acquire binna rights. The point to- be kept inview in all cases, I think, is that the essence of a diga marriage isthe severance of the daughter from the father’s family and her> entry into that of the husband, and her consequent forfeiture of anyshare in the family property, and the principle underlying theacquisition of binna rights, as I understand it, is that the daughteris re-admitted into the father’s family and restored to her naturalrights, of inheritance. This, of course, is not a one-sided process;the father’s family must intend, or at least recognize, the result. The
1 (1912) 16 N. L. R. 2S8.
( 359 )
question accordingly inthis ca&eis whether the facts provedWV!.
are sufficient to establish the plaintiff’s restoration to her original ^ fSjuntJezoposition as a daughter ofthe houseof Hamy Dekama. It appears^
that she was very youngwhen Hamy Dekama died, and was givenPoausM
in marriage to Pinhamy by her xnother and brothers in 1874. Shereturned to the familvhouse atMuduwe for her confinement,
v
probably about a year or two after the marriage, and there herson Punchi Mahatmaya was born. She appears to have had noother children. Punchi Mahatmaya, from the time of his birth,continued to be in the mulgedara, he married in 1900, and conductedhis wife there, and all his four children wtere bom and live there. Theplaintiff herself lived with the husband at Pelmadulla only for aboutfour or five years and returned to the mulgedara, and never wentback again. She appears to have quarrelled with the husband,who took another wife and had children by her. There was noformal divorce, but the circumstances indicate that the separationbetween husband and wife, which must have taken place shortlybefore 1880, was permanent and final. 'At that time the plaintiff'sbrother Dingiri Menika was living in the family house, which was onNindawatta, and the plaintiff was admitted into and occupied apart of the house. Afterwards Dingiri Menika built for himself ahouse on another land and took up his abode there, leaving theplaintiff and her son to occupy the whole family house. The oldhouse soon came down, and another was rebuilt by the plaintiff ohtiie same site, and has since been occupied by her and her son alone.
That this was not a mere exercise of charity on the part of DinginMenika and the other heirs of Hamy Liekama but a recognition ofresumption of her position as a member of her father’s family issufficiently shown by several other circumstances. There werealtogether six children of Hamy liekama, three sons and threedaughters. In 1881 and 1882, Hamy, one of the sons, disposed ofone-sixth share of some of the family lands to Dingiri Menika. Ifihe daughters had no right to them, his share should have beenone-third, and not one-sixth. It is true that two of plaintiff’ssisters were also married in diga, but at the same time it is materialto note that the plaintiff herself was taken into account in thecalculation of Hamy’s share. In 1908 the plaintiff and her sister,the second defendant, gave a mortgage of some lands. The sharesso mortgaged are not reconcilable with the case of either party butthe mortgage, which was usufructuary, is an act in exercise of theright of ownership. Dingiri Menika died some seven years ago, andthe first defendant, his son, purported to lease the entirety of somelands, and that led to an action in 1911 by the second defendantagainst the first defendant. To that action the' present plaintiffwas made a party defendant, and she put in an answer claiminga share by paternal inheritance. The first defendant eventuallycompromised the case by transferring certain lands to the second
( 360 )
1917.
Daq Sampavoj.
PunchiMenifee v.Appuhamy
defendant, plaintiff in that action. As regards possession, it appearsthat Dingiri Menika, who was the eldest son, generally possessed thefamily lands, but, as the learned District Judge remarks, it does notfollow that he was not doing so on behalf of the whole family,especially in view of the fact that the other sons, who were undoubted-ly entitled to shares, did not interfere with him either. The evidenceindicates that the plaintiff not only occupied> the family house onNindawatta, but enjoyed a share of the produce, and as regards thefields, of which there are many, the first defendant himself saysthat his father Dingiri Menika used to give plaintiff paddy.
The facts which I have briefly summarized show, first, thatplaintiff, notwithstanding her original diga marriage, was re-admittedinto, or with the consent oi her brothers resumed her position in,Hamy Dekama’s family and regained her rights of paternal inherit-ance; and, secondly, that Dingiri Menika and those claiming underhim have not acquired title to her share of the family propertyby prescriptive possession. The appellants in the. District Courtmaintained that the third defendant, Punchi Mahatmaya, was nota son of Hamy Dekama, and was not entitled to any share. , Thispoint wa$ not seriously pressed in appeal, and even if it were, itwould not be possible in view of the evidence to sustain it. I thinkthe District Judge’s allotment of shares to the several parties isright. It appears, however, that the first defendant and his fatherDingiri Menika- and the added defendants who claim under the firstdefendant have made certain improvements on some of the lands.The interlocutory decree includes no order with- regard tc> theseimprovements, nor is the evidence sufficiently directed to thatpoint. I think that before the partition is proceeded with ■ somefurther inquiry should be made as to improvements, and the'inter-locutory decree should, if necessary, be amended.
Subject to the above direction, I would dismiss. the appeal withcosts.
Appeal dismissed.