Samarakoon v Samarakoon and another
SAMARAKOON AND ANOTHER
COURT OF APPEALUDALAGAMA, J., ANDNANAYAKKARA, J.
CA NO. 1035/93 (F)
D.C. KANDY 9742/PFEBRUARY 11 ANDNOVEMBER 14, 2003
Kandyan Law Ordinance, No. 3 of 1870 – Right of a deega married daugh-ter to acquire property of father – Entry in marriage certificate – Is it conclu-sive? – Right of a Buddhist priest to parental inheritance – Vinaya discipline -Buddhist Temporalities Ordinance, section 23 – Pudgalika property -Inheritance from father permitted under the statute.
The marriage as being one under the General Marriages Ordinance,there is no indication as to whether the marriage was in fact a deega orbinna marriage as found in the marriage certificate issued under theKandyan Law Ordinance. In the circumstances, the marriage certificateby itself would not clearly indicate that the parties have gone out indeega.
Furthermore there appears to be no cogent evidence of a severancewith their mulgedera so essential to a deega marriage.
When considering section 23 of the Buddhist Temporalities Ordinance,a Buddhist priest is entitled to own property which is termed as pudga-lika property. The provisions of section 23 permit such priest to eveninherit property. Notwithstanding the rules of Vinaya, the statute permitspriests to deal with property and as such the transfer of shares by thepriest reciting title as to have devolved from his father is not invalid.
APPEAL from the judgment of the District Court of KandyRohan Sahabandu for appellant.
C. Seneviratne, P.C, with U.H. Wickremasinghe for plaintiff-respondent.
Sri Lanka Law Reports
 2 Sri L.R
July 15, 2003UDALAGAMA, J.
The plaintiff in D.C. Kandy case No. 9742/P instituted action to 01partition a land called Kande Kumbura of 12 Lahas paddy sowingextent morefully described in the Schedule to the plaint.
The parties to the action appear to have accepted the corpusto be partitioned and that the original owners of the said land werePunchi Rala, and Dingiri Appuhamy and that the parties wereKandyans governed by the Kandyan Law.
The case had gone to trial on 30 issues and the learnedDistrict judge having considered the evidence of the Surveyor whoexecuted the Commission, the officers from the Land Registry, and 10the plaintiff who. tendered documents marked P1 to P13 includingthe plan ‘X’ and also the evidence of the 1st defendant, H.B.Samarakoon on behalf of the 2nd defendant, by his impugnedjudgment dated 16.07.1993 entered judgment for the plaintiff on thebasis of shares as referred to by the learned District Judge in hisanswers to issues Nos. 27 and 28.
Aggrieved, the 2A defendant-appellant appeals therefrom.
The two questions for determination in this appeal as submit-ted by the learned Counsel for the appellant and also conceded toby the learned Counsel for the respondent were the rights of a 20“deega" married daughter to acquire the property of the father onthe basis of paternal inheritance and the rights of a Buddhist priestto paternal inheritance. It is apparent from the proceedings that theparties were agreed as to the original owner of the corpus to bepartitioned (Menik Rala alias Dingi Rala) and that he died leavingas his heirs his two sons called Punchi Rala and Dingiri Appuhamyreferred to above.
It is also common ground that Punchi Rala had four children,namely, Dingiri Appuhamy, Dingiri Menika, Dingiri Amma and Rev.Seelananda.30
It is also conceded that Appuhamy aforesaid had six childrenincluding the 2nd defendant, Heen Banda, the predecessor to the2A defendant-appellant.
Samarakoon v Samarakoon and another
The dispute appears to have arisen over the claim of the 2Adefendant that Dingiri Menika and Dingiri Amma referred to abovewho purportedly went out in “deega" had forfeited their rights to thepaternal inheritance and the other son who robed as Rev.Seelananda had also forfeited his rights to any property inheritedfrom his father leaving Appuhamy the sole heir to the paternalinheritance of Punchi Rala, the half share owner.
Dingiri Amma referred to above who is said to have marriedin “deega” vide the marriage certificate bearing No. 1102 (2D4)undoubtedly indicate that the marriage as being one under theGeneral Marriages Ordinance and that there is no indication as towhether the marriage was in fact a “DeegaT or “Birina” marriage asfound in the marriage certificates issued under the Kandyan Law(Ordinance No. 3 of 1870). Accordingly it is my view that the entryin 2D4 by itself would not clearly indicate that the aforesaid DingiriAmma had, gone out in “deegaT. That fact cannot be determinedon the face of 2D4. The same reasoning is relevant in respect ofDingiri Menika who also appears to have got married under theGeneral Marriages Ordinance, vide 2D5.
Dingiri Amma referred to above who was entitled to 1/8 sharefrom her father had transferred that share without objection fromAppuhamy the predecessor of 2A defendant-appellant. The samecould be said of the rights of Dingiri Menika. The aforesaid trans-fers had taken place as far back as 1920 and 1928. Significantlyeven the children of said Appuhamy had not objected to such trans-fers, nor taken any step to invalidate them. The learned DistrictJudge’s conclusion that Dingiri Amma and Dingiri Menika had mar-ried after the death of their father and that the rights of the fatherPunchi Rala devolved on them is in accord with the evidence. So isthe finding of the learned District Judge that Dingiri Amma andDingiri Menika by deeds 1623 dated 26.04.1920 and the deed No.203 dated 18.02.1928 referred to above had as stated in the deedsreferred to transferred their rights which as stated had devolved onthem from paternal inheritance 60 years prior to the institution ofthis action without any objection by anyone implying acquiescenceto their rights of paternal inheritance. In any event there appears tobe no cogent evidence of a severance with their mulgedera soessential to a ‘deega’ marriage.
Sri Lanka Law Reports
(2003} 2 Sri L.R
Rev. Seelananda referred to above another son of PunchiRala by deed No. 596 dated 11.03.1931 has also transferred hisrights to the land, the subject matter of this action, on the basis ofpaternal inheritance which as stated by the learned Counsel for theappellant was against Vinaya discipline, However, I am inclined tothe view when considering the provision of section 23 of theBuddhist Temporalities Ordinance that a Buddhist priest under thesaid ordinance is entitled to own property which is also termed as“Pudgalika property." The provisions of section 23 aforesaid also sopermits such priest to even inherit property. In view of the said pro-vision I am inclined to the view notwithstanding rules of Vinaya thatStatute permits priests to deal with property and as such the trans-fer of 1/8 share by Rev. Seelandanda reciting title as to havedevolved from his father is not invalid.
Accordingly I am inclined to the view that the learned DistrictJudge by his impugned judgment had on the above two pivotal mat-ters before court had clearly come to a finding on the evidence ledbefore him on a balance of probability relevant to issues Nos. 20and 21 that Dingiri Menika, Dingiri Amma and Rev. Seelananda’s 90rights to paternal inheritance had not been affected and that theimpugned judgment does not warrant interference.
Accordingly this appeal is dismissed with costs.
NANAYAKKARA, J.I agree.