XE^N'EKOOJf- C.J.- -G-imusLitu *», Ukku nucnika
1976 Present. : Tennekoon, C. J.f Weeraratne, J.. andSharvananda, J.R. P. D. GUNASENA and three others, Appellants, and R. P. D.UKKU MENIKA and two others, Respondents
5. C. 584/69—D. C. Kururiegala 5727/T
Kandyan Law—Marriage in diga—Forfeiture of rights to the paternalinheritance—Re-acquisition of binna rights by daughter marriedin diga—Waiver of forfeiture of rights to the paternal inheritance—Kandyan Law Declaration anil Amendment Ordinance (.Chapter59).
Prior to the coming into operation ot the Kandyan Law Declarationand Amendment Ordinance (Chapter 59) the “re-acquisition ofbinna rights by a daughter who has gone out in diga can beestablished by proving the exercise by such diga married daughterof rights in the mulgedera or in the paternal property as thoughthere had been no forfeiture, coupled with acquiesence on the partof the father or he being dead, of the brothers in such exercise ofrights ; the exercise of rights in the paternal property will includethe execution by the diga married daughter of deeds of sale, leaseor mortgage of paternal properts’ with the knowledge andacquiescence of the father or the brothers and is not confined tothe proof of possession of , those lands. From such facts a waiver ofthe forfeiture can be inferred, and for such waiver to be effectiveit is unnecessary to show that the waiver, or the acquiescence in theexercise by the diga married daughter of rights in the paternalproperties resulted in the latter altering her position for the worse.This is a part of the rule of estoppel by conduct or representation andis no part of the Kandyan Law relating to waiver by the father orthe brothers of the forfeiture that occurs upon a diga marriage ofrights to the paternal inheritance.”
A PPEAL from a judgment of the District Court, Kurunegala.
J. W. Subasinghe for the 4th, 5th, 6th and 7th Respondents-Appellants.
C. R. Goorteratne with J. C. Ratwatte for the 2nd to 4thRespondents.
Cur. adv. vult.
July 29, 1976. JVrsrNEKOorc, C.J.—
The question that arises in this appeal is whether Ukku Menika2nd respondent, Kiri Menika 3rd respondent, and Dingh'i Menika4th. respondent, the three daughters of the deceased RanhotiPedi Durayalage Sendiya of Galbodagrma. each of whom hadbeen married out in diga before Sendiya’s death had “ reacquired,binna rights The learned District Judge held that they had.The appeal is from his judgment.
Sendiya, a Kandyan, died intestate on 24th October, 1962. Heleft an estate comprising movable and immovable properties.He left behind him his widow Sirimali, 4 sons — Gunadasa the1st respondent, Gunasena. Wijedasa and Piyadasa (the 1st, 2ndand 3rd appellants), and the 3 daughters earlier referred to.
1 ' A(77/mb
TEl^NEKOON, C..T.—Gunasena v. Uklcumcnika
Upon Sendiya’s death the eldest son Gunadasa made anapplication on 23.1.63 for the grant of Letters of Administrationto himself ; the widow, the 3 diga married daughters and theother three brothers, were named as respondents. In his petitionand affidavit, Gunadasa stated that Sendiya died “leaving ashis heirs at law and next of kin his children Gunasena, Wijedasa,Piyadasa, Ukku Menika, Kiri Menika, Dingiri Menika andSirimali his widow ”. The schedule filed with the applicationdisclosed immovable properties to the value of Rs. 34,557.50 andmovables valued at Rs. 395. The respondents to the applicationappeared in response to the order nisi and made no objectionto the status accorded to all the children as heirs to the estateof Sendiya, nor did they seek to qualify the description accordedto daughters as “ heirs at law ”. Letters were granted to Guna-dasa, estate duty paid, and final accounts filed. Thereafter, on20.10.68 the three brothers of Gunadasa and the widow madeapplication for a judicial settlement of accounts of the Adminis-trator. The three diga married daughters were named as 2nd,3rd and 4th respondents to this application. The petitionerstated :
“ Sendiya whose* estate is being administered in theseproceedings died intestate leaving as his sole heirs his sons—
Gunadasa, the Administrator,
who succeeded to the said estate and his widow who becameentitled to the life interest m the acquired property. Hisdaughters—
Dingiri Menika (also known as Dingu Menika) havingbeen married out in diga have forfeited their rights ofsuccession to their father’* estate. ”
The three daughters—the 2nd, 3rd and 4th respondents to thisappeal—filed objections pleading, inter alia,—
that the male children of the deceased had waived thebenefit accruing to them by reason of the digamarriages and had treated them as heirs to the estateof their deceased father notwithstanding the digamarriages :
1'RA.NiUvUOJS, O.J.—G-uncuttrnu a. Utc/m-menika.i;il
that by the rules of waiver and estoppel and by theirconduct the male children of the deceased had forfeitedtheir claims to the entire estate and that accordinglythe three daughters were entitled to share the saidestate along with the male children.
At an inquiry into this contest between the brothers on theone side and the sisters on the other, it transpired that UkkuMenika was married in diga to one William on the 11th of July1935 ; William was a man from Aragoda. Kiri Menika wasmarried in diga to one Sirimali of Ballapana on the 14th ofOctober, 1938. The youngest daughter Dingiri Menika marriedone James of Aragoda, also in diga on the 24th of Oetuber 1944.Aragoda and Ballapana are 6 miles and 13 miles distant fromGalbodagama where Sendiya resided in mulgedera. Themarriage certificates in respect of all three marriages wereproduced and marked through the appellant Goone;sena. He wasthe only witness called by the appellants. His evidence was thatthe three sisters after marriage took up residence in theirhusband’s homes and exercised no rights in respect of themulgedera or any of Sendiya’s properties other than those givento them upon marriage. No evidence whatsoever was called by thethree sisters. In this state of the evidence one has to proceed onthe basis that neither before Sendiya’s death nor thereafter didany one of the sisters do any of those acts which are customarilyregarded in Kandyan Law as evidence of readmission of a digamarried daughter into the father’s family ; there was forinstance no evidence whatsoever to indicate that any of thedaughters maintained a close and constant connection with themulgederaor left a child to be brought up at the mulgedera ormaintained an intimate association with the pater-familias, orpossessed any of the family lands. The case for the threerespondent sisters was thus based only on ‘ waiver ’ by thebrothers of the forfeiture as evidenced in the documentsreferred to above or in the alternative on ‘acquiescence’ by themin the sisters’ exercising rights in the paternal pi-operiy asevidenced by the same documents.
In support of their claim that the brothers had waived anyforfeiture on the part of the diga married sisters and acceptedthem as heirs and of the plea of estoppel, the respondents reliedon the following matters, namely-
(1) The administration proceedings had been conductedon the footing of the averments in the application forLetters of Administration that the daughters are heirsof the deceased Sendiya ;
. t/anusrnu f. (JAJi.tr/nvtiifca
the execution of deeds bearing Nos. 352 of 28. 6. 65, 744
of 26. 2. 67 and 745 of 26. 2. 67 ; and
the admission of the title of the three married daughters
made in D. C. Kurunegala, case No. 2128/P.
Deed No. 352 of 28. 6. 65 was a deed by which all the malechildren and the female children and the widow of the deceasedSendiya joined as vendors to sell to one David, for a sum ofRs. 2,000, a half-share of a land called Kahatagahamullewattewhich was one of the lands belonging to Sendiya. The title ofthe vendors was cited, in the case of the children-male and fe-male-;'s being “ by right of paternal inheritance of Sendiya ”,and in the case of the widow, as “ by right of marital inheritancefrom the said Sendiya
It would appear from the evidence of Gunasena that theproceeds of this sale were utilised to pay part of the debts ofthe estate. Gunasena also said that the sisters gave theirsignatures to this deed because at the time of execution of thedeeds the testamentary case was pending and all the children hadbeen made respondents in those proceedings.
In regard to the deeds Nos. 744 and 745 of 26.2.1967 it wouldappear that final accounts were submitted by the Administratorand were accepted on 28. 2.1967 by all the respondents in thetestamentary case, and on that day they all returned to theoffice of the Proctor of the Administrator and these two deedsNos. 744 and 745 were executed on that day. By deed No. 744all the children, male and female, of Sendiya (except Dingu)and the widow sold to Dingu for a sum of Rs. 500 a 6/14 share ofOliya Ulle Kumbure. Here again the vendors recited their title,in the case of the children, as by right of paternal inheritancefrom Sendiya, and in the case of the widow as by right of maritalinheritance from Sendiya.^
By deed No. 745, the three daughters sold to the four brothers28 lands (ie. all lands of Sendiya that were invehtorised exceptthe lands conveyed on deeds No. 352 and 744) for a considerationof Rs. 10,000 of which, according to the Notary’s attestation,Rs. 4,000 was acknowledged to have been previously received andthree pro-notes for Rs. 2,000 each executed in favour of each ofthe sisters as balance consideration. In this deed the vendorsUkku Menika, Kiri Menike and Dingu Menike recited their titleas by right of paternal inheritance from Sendiya.About 6 months after the execution of these two deeds. Nos. 744and 745, the three sisters filed action in the Dis^ict Court of
TENNEKOOiST, C.J,—Gunasena v. Ukkumenika
Kuliyapitiya (D.C. 2716/1) against the brothers for declaration,that deed No. 745 was invalid and of no force or avail in law onthe ground of duress and undue influence and also claimedrestitution on the ground of laesio enormis ; in the plaint thedaughters set out title to interests in the 28 lands as coming tothem by paternal inheritance. In their answer (para. 2), thefour brothers stated—
that Sendiya whs the owner of the lands referred to inthe plaint ; that he died leaving surviving as his soleheirs.
his widow Sirimali,
his seven children (i.e. 4 brothers and 3 sisters)
who succeeded to the said estate. In the answer the brothersfurther stated that deed No. 745 was the result of arrangementsin the family whereby the daughters and their mother were totransfer to the 4 brothers all their interests and all the im-movable properties belonging to the said estate except OliyaIllle Kumbure for Rs. 10,000. They also referred in their answerto deed No. 744 which was executed as part of the arrangement.The case did not proceed to trial. The proceedings of 23.9.68 readas follows • —
“ Of consent, deeds Nos. 745 of 28.2.67 and 744 of 28.2.67are set aside. Defendants state that the plaintiffs were notentitled to any shares in the lands referred to in the saiddeeds as all three of the plaintiffs had gone out in diga.Plaintiffs deny that they forfeited any rights in the landsreferred to in the said deeds of transfer referred to above.The promissory notes given to the 1st, 2nd and 3rd plaintiffs(the 3 sisters) by the defendants (the brothers) at the timeof the execution of the said deed are returned to the defen-dants. The promissory note given to the 2nd plaintiff by thedefendants at the time of the execution of tlje deed inquestion has not been brought to court today, but it isagreed that the 2nd plaintiff is not entitled to recover anymoney on the promissory note. In view of this settlementthe plaintiffs move to withdraw this action.”
The 4 brothers thus retracted the admission which they hadmade in para. 2 of their answer and took up the position thatthe sisters had no claim to any interests in Sendiya’s immovableproperty.
On the 6th of December, 1967, one Etulgalpedige Simon whohad become entitled to 1J12 share of a land called Tittawelawattainstituted an action No. 2128 in the District Court of Kurunegalato partition that land ; he named as defendants and co-ownersthe widow and all the children, male and female of Sendiya.
A 28980 (77/09)
534TEUNTSKOON, C. J.—Qunaaena v. Ukhumenika
The land sought to be partitioned is one of the lands that belongedto Sendiya. All the children and the widow filed one answer,ill' agreeing that they were heirs of Sendiya. The decree in thatcase allotted to the plaintiff 1/12 share, and awarded to theWidow and the 7 children of Sendiya the balance 11112 sharesjointly.
It has been submitted by Counsel for the appellants that thesefacts are insufficient to establish that the sisters had reacquiredbinna rights. It is contended by him that mere ‘ waiver ’ or‘ acquiescence ’ unaccompanied by proof that the sisters had.been led to alter their position for the worse is insuflic ent toestabl sh that they had regained rights over the paternalproperties.
It is well recognised in Kandyan Law that a daughter /notbeing the only daughter) who marries in diga forfeits her rightto the paternal inheritance. These rights can, however revest insuch a diga married daughter in certain circumstances. Theearlier cases described this situation as a regaining of binnarights—see the case of Appuhamy vs. Kirimenika (1912)16 N.L.R. 238 Punchi Menika vs. Appuhamy (1917) 19 N.L.R. 353and the cases referred to in those judgments. In these earliercases the question whether a daughter who had forfeited herrights to the paternal inheritance had regained such rights wastested largely by reference to the maintenance of a connectionwith the mulgedera.
However in the case of Banda vs. Angurala (1922) 50 N.L.R. 276Chief Justice Sir Anton Bertram held that the regaining of binnarights may be evidenced by material other than connection withthe mulgedera. He said (at page 278) :
“ Any forfeiture may be waived by those for whose benefitit takas place. It has been customary in considering whethera forfeiture of binna rights has been waived to look at thematter from the point of view of the connection of the dau-ghter in question with the mulgedera. But in my opinionthere is nothing to show that this is the only test. To use afamiliar phrase of the late Lord Bowen. “ There is nothingmagic about the mulgedera ”. Where a forfeiture has takenplace, it is not the connection with the mulgedera which res-tores the binna rights, it is the waiver of the forfeiture, ofwhich connection with the mulgedera is the evidence. As wassaid by Wood Renton C.J. in Fernando vs. Bandi Silva (1917)4 C.W.R. 12 : * The instances given in the text books on Kan-dyan Law of the cases in which binna rights can be regainedare illustrations of a principle and not categories exhaustivein themselves. The rights of the diga married daughter to a
TENJTEKOON, C.J.—Gunaeenct v. Ukkumetiika
share of the inheritance may be set aside by her readmissioninto the family The real question is : Have the brotherswaived the forfeiture of their sisters rights ?”
This case was followed in Appu Naide vs. Heen Menika (1948)51 N.L.R. 63. Basnayake, J. (as he then was) with Gratiaen, J.agreeing, after referring to the case of Banda vs. Angurala said:“ It was held by Sir Anton Bertram, Chief Justice that it isopen to a brother to waive the forfeiture of the rights of asister married in diga. In that case it was proved by the pro-duction of a series of deeds that the diga married sisters haddealt with several paternal lands as if they had rights in them.The rule applied in that case has its origin in the Roman Law(Code 1.3.51) according to which every one is at liberty torenounce any benefit to which he is entitled. I prefer to applyto this case the doctrine of * acquiescence ’ rather than theassociated doctrine of ‘ waiver ’ applied by Sir Anton Bert-ram in the case I have cited. ”
In the ease of Punchi Menike vs. Appuhamy (1917) 19 N.L.R.358, De Sampayo J. said :
“ The point to be kept in view in all cases, I think, is thatthe essence of a diga marriage is the severance of the daugh-ter from the father’s family and her entry into that of thehusband, and her consequent forfeiture of any share of thefamily property ; and the principle underlying the acquisi-tion of binna rights, as I understand it, is that the daughteris re-admitted into the father’s family and restored to hernatural rights of inheritance. This of course is not a one-s ded process ; the father’s family must intend or at leastrecognise the result. ’
Upon an examination of these and earlier authorities it wouldappear that re-acquisition of binna rights by a daughter who liasgone out in diga can be established by proving the exercise bysuch diga married daughter of rights in the mulgedera or in thepaternal property as though there had been no forfeiture, coupledwith acquiescence on the part of the father or he being dead ofthe brothers in such exercise of rights ; the exercise of rights inthe paternal property will include the execution by the diga,married daughter of deeds of sale, lease or mortgage of paternalproperty with the knowledge and acquiescence of the father orthe brothers and is not confined to the proof of possession ofthose lands. From such facts a waiver of the forfeiture can beinferred and for such waiver to be effective it is unnecessary toshow that the waiver, or the acquiescence in the exercise by thediga married daughter of rights in the paternal propertiesresulted in the latter altering her position for the worse. This is apart of the rule of estoppel by conduct or representation and is
TENN15KOON, C.J.—Gunasena v. Ukkumenika
no part of the Kandyan Law relating to waiver by the father orthe brothers of the forfeiture that occurs upon a diga marriage ofrights to the paternal inheritance. From the documents that havebeen proved in this case, it is plain that the appellants havewithout question—except belatedly—acquiesced in the sisters’exercising rights of disposal over the paternal properties. DeedNos. 744 and 745 of 28.2.67 were no doubt set aside in D. C. Kuru-negala Case No. 2716/L ; but they were set aside ‘ of consent *and not on the ground that the sisters had no title to transfer.Notwithstanding these deeds being set aside, the fact of theirexecution with the acquiescence of the brothers remains un-affected. These two deeds together with deed No. 352 of 28.6.65and the pleadings and consent decree in the partition actionD. C. Kurunegala Case No. 2128/P can only be explained on thebasis that the sisters had reacquired binna rights in the paternalproperties. The proceedings in the testamentary case also showthat until the judicial settlement of accounts the brothers allproceeded on the basis that the sisters were heirs at law ofSendiya not only in respect of the movable properties but also ofthe immovable properties.
I would accordingly hold that the ,2nd respondent UkkuMenika and the 3rd respondent Kiri Menika were heirs ofSendiya. In the case of the 4th respondent Dingiri Menika(Dingu), she having married after the coming into operation ofthe Kandyan Law (Declaration and Amendment) Ordinance(Cap. 59) cannot be admitted to binna rights in view of section9 (1) of that Ordinance. That section provides inter alia that :
“ No conduct after any marriage (whether binna or diga)of either party to that marriage or any other person shall….cause or be deemed to cause a person married in diga tohave the rights of succession of a person married in binnaior a person married in binna to have the rights of successionof a person married in diga. ”
The learned District Judge has held that all three sisters areheirs of the deceased Sendiya and entitled to shares in the immo-vable properties. While affirming his decision in so far as itconcerns the 2nd and 3rd respondent sisters, I would allow theappeal only so far as it concerns the 4th respondent and holdthat she the 4th respondent is not entitled to succeed to herdeceased father’s immovable properties.
There will be no order as to costs in appeal. The order for costsmade by the learned District Judge is also set aside.
Weerabatne, J.—I agree.
Skahvananda, J.—I agree.
Appeal partly allowed.
R. P. D. GUNASENA and three others, Appellant, and R. P. D. UKKU MENIKA and tw