1 (1915) 1 C. TK. R. 197.* 3 S.C. R. 167.
*6N.L. R. 21i.
* 19 N. L. R. 260.
( 181 )
plaintiffs that the defendant had lost her rights to her husband’s 1928.estate on re-marriage. The learned District Judge decided in Vy~~£anjafavour of the defendant.* v.
H. V. Perera, for plaintiffs, appellants.
Keuneman, for defendant, respondent.
November 9, 1928. Garvin J.—
This was an action by certain persons who claim to be the heirsof one Punchi Banda, deceased, for a declaration that they arethe owners of and entitled to the immediate possession of certainallotments of land alleged to belong to his estate of which thedefendant was said to be in wrongful possession. It was admittedthat these allotments of land formed part of the acquired propertyof the deceased and that the defendant, his widow, had contracteda second marriage after his death. It was submitted on behalfof the plaintiff that under the Kandyan law—which is applicableto this case—the defendant lost all her rights to her husband’sestate on re-marriage. This point was made the subject of apreliminary issue of law which the District Judge has decidedin favour of the defendant. The plaintiffs appeal.
The question of law is raised in very wide terms. The Courtwas invited to try the issue.
“ Does the re-marriage of a Kandyan widow with or withoutthe consent of his relations involve the forfeiture by herof her right to the property acquired by the deceasedhusband during his lifetime ” ?
By “ right to the property acquired ” it is evident that theparties meant the life interest of a Kandyan widow in the acquiredproperty of her husband. But it does not appear whether thesecond marriage was in bina or diga.
The District Judge in a carefully considered judgment hasfollowed the decisions of this Court in Menika v. Horetala,1 NilaHenaya v. Dismnayaka Appuhami,2 Hvdi v. Rangi,3 but hassuggested that the point should receive further attention andconsideration.
The first reported case in which the proposition was laid downthat a Kandyan widow did'not lose her life interest to her deceasedhusband’s acquired landed property on contracting a second mar-riage is that of Menika v. Horetala {supra). The principal judgmentis that of Lawrie A.C.J., who was satisfied that by the Kandyanlaw a widow who left her husband’s house to live with a second1 3 S.C. R. 167.3 6 N.L. R. 214.3 19 N. L. R. 260.
30/15( 182 )
1928. husband lost her rights to be maintained from the produce of his
_ _ ancestral lands. In regard to her rights in the acquired landed
Garvin J. ..„,®T ,. 6n
property all the learned Judge says is :—
Ukku Banda
Heenmenika " I do not find authority of a kind which I think sufficient,that the widow’s possession of . acquired land was to cometo an end on a second marriage, one reason why she wasallowed to possess it for her life was that in most casesit had been purchased by the savings and exertionsof the wife as much as of the husband.”
There is however no reference to or citation from any workon Kandyan law in this judgment. The case was heard anddetermined in 1894. The next case in point of time is that ofNila Henaya v. Dissanayaka Appuhami (supra). The judgmentdelivered in 1903 is that of a single Judge, Moncrieff J.; itrefers to the judgment of Lawrie J. in Menilca v. Horetala (supra)and proceeds as follows :—
“ As there is nothing in Perera or Thomson, or so far as I knowanywhere else, in contradiction of this, I think thatSetu’s (i.e., the widow’s) interest in the acquired propertydid not come to an end.”
The point next came before this Court in the year 1916, and arosein the case of Hudi v. Rangi (supra). The judgment was deliveredby Shaw A.C.J., with whom de Sampayo J. agreed. The case wasthat of an action by a childless Kandyan widow for a declaration'that she was entitled to possession of her husband’s acquiredlanded property and to a life interest therein. Her claim wasresisted on the plea that she had married a second time contraryto the wishes of the heirs and had left her late husband’s house.Apart from the two earlier cases referred to above, the only othercitation was a passage from page 27 of Pereira’s edition of Armour’sGrammar of Kandyan Law which also appears in Marshall’sJudgments at page 326. In point of fact both passages are takenfrom Sawer’s Digest, Chap. I., s. 6, but this was not brought to thelearned Judge’s notice. In the result Shaw J. remarks that thepassage occurs in a part of Armour’s work which deals with thewidow’s right to her husband’s paravmi property, and concludesthat the passage was intended to* refer to her interest in herhusband’s paraveni only and not in his acquired property. Shaw J.does refer to Modder, Art. 169, p. 296 : but that article if readwith article 173, p. 302, shows clearly that Mr. Modder has basedthis proposition on the law as declared in Menilca v. Horetala(supra) and Nila Henaya v. Dissanayaka Appuhami (supra).
( 183 )
On the other hand, there is the high authority of Sawer for the 4928.following statement of law:—Gajwtn J
“ A widow loses her rights, and life interest in her husband’s
estate by taking a second husband contrary to the wish v_
of her first husband’s family: or by disgraceful conduct, Heenmenika
such as, glaring profligacy or adultery; or by squandering
the property of her deceased husband. Any of these
being proved against her by the children would subject
the widow to exclusion from the house of her late husband
and deprive her of any benefit from his estate.”1
It is1 this passage which is referred to by Shaw A.C.J. in Hudi v.
Rangi (supra) as a passage from Armour “which is cited in Marshall’sJudgments.” As I observed earlier, it has been taken over fromSawer’s Digest. It is therefore of importance to note that itappears in a chapter in which Sawer is setting down the rules ofsuccession to “ landed property.” The five preceding paragraphslay down the rules of succession to a man’s “ landed estate ”drawing no distinction between inherited and acquired property.
The only reference to the two classes of property is in section (2),which says :—
“ The widow of a husband dying childless has the same lifeinterest, and that only, in her husband’s lauded property,whether hereditary or acquired, as the widow of a husband,who has died leaving issue.”
I can find no reason therefore for giving to the very general words. “a widow loses her rights and life interest in her husband’s estateby taking a second husband, &c..,” a construction which restrictstheir application to his paraveni property. There is certainly noindication either in the language of the section or of the chapterin which it occurs that the forfeiture does not extend to the lifeestate in the acquired property.
The quitting of the family bouse by a widow which in most casesresults from a second marriage involving a severance of the family tiewas apparently regarded as a serious offence meriting a forfeitureof all rights in her husband’s property and in certain cases oventhe right to succeed as heir of a deceased child to any part of suchproperty :—
“ A widow, who quits the house of her deceased husbandleaving her children by her deceased husband to the careof their father’s relations, to form another marriage,loses not only her own immediate rights in her firsthusband’s estate, but the right to inherit the propertyof her children borne to her deceased husband andabandoned by her ; but if she carries the children of her
1 Sau/er's Digest, Chap, /.
( 184 )
Oabvxn J.
Uk'ku Bandav,
first husband to the house of her second husband, orif she affords them assistance and performs the last dutiesto them on their deathbed, she does not lose her rightto inherit their property.”1
These passages in themselves are a strong basis for the contentionthat the proposition that under the Kandyan law re-marriage of awidow does not under any circumstances involve a forfeiture ofher life interest in her husband’s acquired property is unsound.
In Chapter V., s. 8, of Pereira’s Edition of Armour there appearsthe following passage :—
“ If the deceased left a widow, the whole of his movable propertywill devolve to the widow by lat himi right, in preferenceto the mother, brother, and sister. And the widow willnot forfeit her right to such property by subsequentlycontracting another marriage in diga. Such marriage,will have the effect of depriving her only of the life interestshe had in her husband’s landed estate.” 2
The words appear to be too clear to need comment, but if there isany doubt as to Armour’s opinion the matter is set at rest by hisstatement of the law when considering in Chapter I., s. 24, theconsequences of “ Dissolution of marriage by death : ”—
“ If the deceased husband left other landed property, besideshis paraveni or ancestral lands, that is to say, landsacquired by purchase or lands which he, the deceased,had received from his adopted father, in such casethe widow may have possession of the whole of suchacquired land, for the remainder of her life, providedshe remained single ; in the event of her death or of hercontracting a subsequent marriage, the said land willrevert to her aforesaid deceased husband’s heir-at-law.”3
On turning to the Niti Nighandvwa one finds several passageswhich are wholly irreconcilable with the proposition laid downin the judgment of Lawrie J. and those which followed it, thatunder no circumstances does the second marriage of a Kandyanwidow involve a forfeiture of her life interest in the acquired landedproperty of her deceased husband. In this work the rights whicha wife acquires by reason of her marriage is referred to as “ hermarriage right.” After considering certain cases other than thatof dissolution by the cancellation of the marriage according tocustom which may involve a forfeiture of the marriage right thework proceeds as follows :—
“ The marriage right, however, thus established, will onlyremain in force so long as the wife does not contract a
1 Sower’s Chap. VII., a. 23.2 Perera’s Edition, p. 86.
2 Perera’s Edition, p. 18.
( 186 )
second marriage after her husband’s death. As soonas she is married again, she loses the maintenance fromher former husband’s property.
In some instances, however, even though she contracts anothermarriage ‘after her husband’s death, her prior marriageright may continue in force, viz., on the husband’s death,if his children are very young and their mother is unableto perform the services of the land and to support thechildren, and if with the consent of the deceased husband’srelatives, she contracts a bina marriage on his premises,her marriage right will not be vitiated. ”1
These passages occur in a chapter headed “ How a marriedwoman inherits the land of the husband.” But any doubt as towhether the application of this passage is limited to the inheritedlands qf her husband is set at rest by the following passages whichappear later :—
“ If a man dies without leaving legitimate children, and if atthe time, his wife, a brother, or a sister of his be living,the paternal lands of the deceased will at once revertto the brother or sister, and all his acquired lands will begiven over into the charge of the wife. However, on themarriage’ again (in diga) of this wife, or on her deaththe lands so given over will devolve on the brother orsister aforesaid, or on the grandchildren descendantfrom them, or on the heirs of the brother or sister.”2
While considering the case of the death of a man leaving himsurviving no legitimate child or grandchild or adopted child buthis wife, father and mother, and brothers and sisters, the NitiNighanduwa, page 91, says with reference to the aquired lands :—
“ She has only the power to remain in possession of them duringher lifetime or until she contracts a diga marriage ; andtherefore, she cannot sell or give away any portion of thelands so given over into her charge.”
“ If this wife, while in possession of her deceased husband'slands, contracts another diga marriage, or dies, and if thefather of the aforesaid husband is then living, he willcome into possession of those lands ; and if the fatheris dead the mother will obtain them . . . .”
With the sole exception of the one passage from Armour referredto in the judgment of Shaw J. in Hudi v. Rangi (supra) not one ofthese passages appear to have been brought to the notice of theJudges who heard and determined the three cases referred to. Thisexamination of the orginal authorities renders it' impossible to1 Niti Nighanduwa, G. III., a. 8., p. 81.
Niti Nighanduwa. C. IV., s. 4., p. 96.
Gabtoj J.
XJkku Bandav.
( 186 )
1928. justify the proposition laid down in those cases. While thereGarvin j undoubtedly are certain cases in which a second marriage does not
nacessarily involve a forfeiture of a widow’s right in her deceased
Ukku Banda husband’s landed property, there can be no doubt that under theHemmmika Kandyan law there are cases in which such a forfeiture is a necessaryconsequence of a second marriage.
However reluctant one might be to dissent from a propositionof law stated in a judgment of this Court as far back as 1894, whichhas since been followed and accepted in at least two other judgments,
I do not, however, think that the law as stated there can fairly besaid to have been definitely settled and established for so longaperiod that we (are bound to follow it even in a case where it isso clearly at conflict with all the original writers from whom wederive our knowledge of the Kandyan law. Hayley in his bookon Sinhalese Law and Customs cites four cases: one reported atpage 85 of Austin’s Reports, and three others discovered by himand printed in Appendix II. of his book as note 14. These casesall seem to be at conflict with the law as laid down in Menika v.Horetala (supra) and the cases which followed it. Inasmuch howeveras the words “ landed property ” or “ lands ” are not expresslypreceded by the word “ acquired ” it is possible to argue that theyare not of themselves conclusive of the matter. *
The broad principle underlying the Kandyan law of inheritanceis that a man’s landed property must remain in his family. If heleaves acquired property, his widow is given the right to enjoythe produce thereof. She is only permitted to share in the profitsof his paraveni property if there is no acquired property or if theprofits of such property alone are insufficient for her maintenance.
The right of a widow to a life interest in the acquired propertyappears to proceed, not from a desire to enlarge her rights in herdeceased husband’s estate, but rather to exclude her completelyfrom the paraveni estate whenever the circumstance that thedeceased has left acquired property renders that possible. Theright of a widow is in substance a right to sustenance and supportfrom the profits of her deceased husband’s landed estate. Thisright is a burden imposed on his acquired property if there is any ;recourse can only be had to the profits of the paraveni propertyif there is no acquired property or if what there is, is insufficientto provide the widow with the means of maintaining herself.
It is this right to take by inheritance benefits from her deceasedhusband’s landed estate which is determined by dissolution ofmarriage and which ceases or is forfeited in those cases in whicha second marriage is visited with forfeiture.
Whether in this case the defendant’s second marriage hasresulted in a forfeiture of her interest in the land which is the
( 187 )
subject-matter of the action it is impossible to say without evidenceas to the type of marriage and all other circumstances relevantto the determination of the question.
I would therefore set aside the judgment under appeal andsend Idle case back for further trial and determination. Theappellants are entitled to the costs of this appeal; all other costswill abide the event.
Fisher C.J.—I agree.
Lyall Grant J.—
The only point put in issue in this case was whether a Kandyanwidow necessarily forfeits by re-marriage without the consentof the deceased’s relations her rights in her first husband’simmovable property._
There can be no doubt but that’ the District Judge rightlyanswered this issue in the negative, as he was bound by a chain ofauthorities dating from 1895.
This case has been brought before a Bench of three Judgesin order that these decisions may be reviewed.
A perusal of the institutional writers and an examination ofsome of the old decisions collected in Appendix II. of Mr Hayley’sKandyan Law makes it very doubtful whether the later decisionscorrectly set forth the Kandyan law.
It. is with great reluetance that I would agree to disturb aprinciple of law which has been repeatedly enunciated by thisCourt and which has presumably been accepted for a third of acentury.
Personally I should be disposed to follow the later decisionsand to leave undisturbed the law which has for long been acceptedand acted upon. If that law causes hardship or is not acceptableto those whom it affects, I think the most satisfactory course isto leave the remedy to the Legislature.
The question has not however, previously come before a Benchof Three Judges and we have the power to overrule previousdecisions.
In these circumstances I acquiesce in the order proposed by mybrother Garvin and agreed to by my Lord the Chief Justice.
Set aside and remitted.
Garvin J.
Vkku Bandav.