007-NLR-NLR-V-41-KIRI-BANDA-v.-DINGIRI-BANDA.pdf
Kiri Banda v. Dingiri Banda.
25
1939Present: de Kretser and Nihill JJ.
KIRI BANDA v. DINGIRI BANDA.
85—D. C. (Inty.), Kurunegala, 4J67.
Kanadyan lava—Right of cousins to succeed to inheritance—Female cousinsmarried in deega—No forfeiture of rights.
Where a Kandyan died unmarriiid and issueless, leaving as his next-of-kin the children of his father’s brother, viz., two sons and three daughtersmarried in deega,—
Held, that the cousins married in deega did not forfeit their rightsto the inheritance.
U
KKTJ Banda, a Kandyan, died unmarried and without issue,leaving as his next-of-kin, the children of his father’s brother
Kapuruhamy. Kapuruhamy’s children were two sons and threedaughters married in deega. The question was whether the marrieddaughters forfeited their rights to their cousins’ property by their deegamarriage.
V. Ranawake, for the appellants.—The District Judge’s findingagainst us is based on what appears to be the combined applicationof the rules attaching to a deega forfeiture and the principle of thereversion of inherited property to the source whence it came wheredescendants fail.
The rule of deega forfeiture has been incorrectly applied. Hereadmittedly the appellants’ and respondents’ father had been deadsome years at the time Ukku Banda died. The rule of deega forfeitureinvolves the forfeiture of a daughter’s right to inherit any portion ofher father’s estate (see, for instance, the rule as stated by Wood Renton
J. in Punchi Menika v. Appuhamy ‘). Can it be said here that we hadno rights to what became our father’s property on Ukku Banda’s death ?The principle should not be extended beyond its true limits. Were itto be so extended we should have a clear and unequivocal rule ; in itsabsence, the policy of the law would be against the imposition of aforfeiture. See Menikhamy v. Appuhamy °.
What constitutes a parental estate must be finally decided at the pointof time when one’s father dies ; it is' to that estate the deega marrieddaughter forfeits her rights. While the deega forfeiture is based on thetheory of a dowry being given to a daughter out of the father’s estate,it would indeed be a serious penalty attaching to a deega marriage which adeega daughter has to pay, if, after her father’s death, whenever theoccasion arises which, but for her deega marriage, entitles her to anyproperty, she has to forego such title on the basis that- the propertyhistorically may be described as paternal property.
The other rule of inherited property reverting to the source whence itcame has been equally incorrectly applied in this case, for the real questionis one of succession to the estate of a deceased cousin, not to a paternal
1 J9 N. L. R. 3S3.* 5 Balaaingham’s Notes 38.
Kiri Banda v. Dingiri Banda.
estate. A succession collaterally is not at all obnoxious to Kandyancustom. See Kiriwante v. Ganetirala', Dingiri Menika v. Appuhamy Dinga v. Happuwa’.
E. A. P. Wijeyratne, for the respondent.—The word “forfeiture” isunhappily used. It connotes a “ disqualification ” which Courts of Laware reluctant to impose. Deega involves an “ abandonment ” of certainrights and that too for good reasons. A deega woman severs her connec-tions with her father’s home and becomes a member of a new familywith rights to succeed to her husband’s property. She gets a dowryand should not get another portion by inheritance—Hayley, p. 462.There is a duty cast on the father and other male members to maintainher in case of return in a destitute condition—Sawer, p. 4 ; Petris v.Kiribanda *. The object was also to reduce the number of shareholders—See Modder, p. 229, and Armour, p. 5.
In the case Menikhamy v. Appuhamy (supra) there was no deega.Deega involves consensus, connubium and certain "ceremonials. In thatcase the woman became the mistress of a Tamil man. Kiriwante v.Ganetirala {supra) can be distinguished, as there are no deega results incase of maternal paternal property where parents have separate estates.Similarly, Dinga v. Happuwa {supra) has no application, as the propertythere had come to the mother from a collateral.
Dingiri Menika v. Appuhamy {supra) supports the respondent’s caseas deega half-sisters do not inherit where there are half-brothers or binnahalf-sisters. Besides, that case lays down an important principle thatmales are preferred to females, where parties claiming inheritance arein equal degree of relationship. See also Menikhamy v. Suddana ’ wherea brother’s acquired property is succeeded to by brothers in preferenceto sisters.
The true principle is that people who bore the family name werepreferred to those belonging to a different family—Hayley, p. 407. Titlemust therefore be traced back to the ancestral roof-tree—Modder,p. 597-598.
Thus a deega daughter will not inherit her mother’s paternal property,where the mother was a binna woman and as such was regarded as a malemember of the family. A deega sister did not share in the inheritedproperty of a brother {4 C. W. R. 3). Nor did she succeed to theinherited property of a sister {Perera v. Setuwa *). On the same principledeega nieces were excluded (6 N. L. R. 133), and nephews were preferredto deega sisters—Hayley, 473 and Niti, p. 113.
The present case deals with cousins but cousins are treated as brothersand sisters—Modder, p. 640. The passage from Sawer, p. 14 … .“ shall go equally to such cousins ” . . .. clearly means such
cousins as have not abandoned their rights by deega. Thus in any tableof devolution when reference is made to sons and daughters or brothersand sisters it means such daughters or such sisters as have not married
out in deega.
1 2 N.L. R. 92.
*6 N.L. R. 133.
*7 N.L. R. 100.
27 N. L. R. 52.
» 28 N. L. R. 266.
17 N. L. R. 307.
DE KRE^SER J.—Kiri Banda v. Dingiri Banda.
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The only authority to the contrary is in Austin’s Reports, p. 149, wheredeega nieces inherited. There the decision on the point oi law wasreally left to the assessors as the full copy of the judgment produced willshow. As against that decision—see Hayley, p. 428 and Niti, p. 100.
V. Ranawake, in reply.—The argument, obviously cannot beaccepted, that cousins being looked upon as brothers and sisters, weshould be disentitled as Ukku Banda’s sisters. For the purpose ofdetermining succession cousins must remain cousins.
The plea of abandonment of our rights set up in appeal by the re-spondent is equally untenable. We cannot presume an abandonmentwhich has been unambiguously proved.
Cur. adv. twit.
October 2, 1939. de Kretser J.—
One Ukku Banda died unmarried and issueless leaving as his next-of-kin the children of his father’s brother, Kapuruhamy. The children oftwo brothers or of two sisters are called brothers and sisters althoughiri reality they are cousins, and these five children of Kapuruhamy,two sons and three daughters, made a close approach therefore to theposition Ukku Banda’s brothers and sisters would have held.
The three females were married in deega and the question is whetherthey therefore had no right to inherit from Ukku Banda. If UkkuBanda had sisters of his own married in deega they would not haveinherited from him save in exceptional circumstances which need riotnow be considered. It is urged that his cousins should be similarlydisqualified because they ought to be treated as Ukku Banda’s sisters.
The strongest emphasis is laid, however, on the argument that a deegamarried female abandons for all time every claim to any property towhich is attached the quality of inherited ancestral property, and thatthe disqualification is not limited to her own parent’s property. It isurged that it is not a case of forfeiture, in which case one would hesitateto extend the disqualification, but a case of voluntary abandonment;the deepa-married daughter loses her status, her identity as a memberof her father’s clan, and becomes a member of her husband’s clan ; andthere can be no complaint since she takes her portion with her in theform of dowry.
It seems to me that it is rather a fiction to term the loss she sustains avoluntary abondonment. She usually has no voice in the matter of hermarriage, and one requires some strong reason before one can accept theposition that a person has abandoned something which would be to heradvantage. Besides, abandonment surely depends on intention. If onecan assume that a daughter marrying in deega abandons her claim to herparents’ estates, a portion of which she knows would be hers but for hermarriage, why must one assume that she means to abandon even claimsto a cousin’s estate, which may only come into existence much later?There can be no doubt that it is a case of forfeiture which we are facedwith. All the authorities hitherto have gone on that footing.
It is not of much use to seek to know the reason for this customarylaw. A custom like this merely means a repetition of a large number ofcases, and the origin of a custom is usually difficult to trace. It isinteresting from the point of historical and scientific research to attempt
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DE KRETSER J.—Kiri Banda v. Dingiri Banda.
to ascertain the reason for the existence of the custom, but from a legalpoint of view all we are concerned with is the proof of the custom. Thatproof is gathered from writers, who may be trusted to know what theyare writing about, from the evidence of well-informed witnesses, and ofcourse from the trend of judicial decisions. If the custom is not provedone must fall back on the Common law, which is the Roman-Dutch law.
I deprecate the attempt to evolve principles : it is a snare the attractionsof which one would do well to avoid. What, we are asked, is the reasonunderlying the forfeiture which a deega marriage involves ? Is it thatthe female just loses her identity ? that “ what the husband is the wife,is ? ” that his people become her people ? It may be so. It is a theorynot without its attraction for the anthropologist, the biologist, thesentimentalist, who may find some evidence of his theory in the factthat in the days when communication was difficult and a woman marriedand left for some distant village she was really cut off from her people.But on the other hand we find her not only naturally looking back onher old home, but custom favouring a marriage between her children andher brothers’ children, a custom which, of course, never received judicialrecognition.
We find that if she had occasion to come back, her family did notregard her as a stranger but were under a natural obligation to maintainher, and they might even go the length of restoring her to her previousposition in the family. She might even marry in deega and yet keep intouch with her family, so that both parties might indicate that she wasnot losing any rights by her marriage.
Sawer, a recognized authority on the subject, says at page 2 of his Digestthat on the failure of issue of the sons and of the daughters married inbinna the deega married daughters succeed to their father’s property;
e., they are not cut off for ever. But if the deega married daughtersare dead, then the brothers of the father succeed in preference to thechildren of such daughters, but if the father’s brothers are dead then thechildren of the deega married daughters succeed in preference to theircousins, the children of the father’s brothers.
A better reason would be that at her marriage the daughter marryingin deega is given her portion in advance by her father, or out of thefather’s estate by the brothers, if her father be dead. It was not fairtherefore for her to expect more, and it was left to them to decide whethershe should have more or not. It was a matter of arrangement really.
The provision is always with regard to her parent’s property, theproperty on which she obviously had a natural claim. Nowhere do wefind the forfeiture carried any further, and in the absence of authorityI am not inclined to extend it. But as a matter of fact there areauthorities to the contrary, and they are of such antiquity that they arenot only more likely to express the customary rights as they existedat the time when the promise was made by the British Government topreserve the customary rights of the people, but they have never beenchallenged and must have been acted on quite frequently.
The earliest authority is to be found in Austin’s Reports, at page 149.Mr. Wijeyratne’s diligence furnished us with a copy of the record, whichis annexed hereto. The Supreme Court was assisted by assessors, who
DE KKETSER J.—Kiri Banda v. Dingiri Banda.
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were Kandyans, and took the evidence of two chieftains on the point.These witnesses presumably were recognized as competent to express anopinion, and there is no indication that their authority was challenged orother evidence offered. The lawyers appearing in the case were them-selves well qualified in the subject. In fact the question whether a deegamarried cousin would succeed does not seem to have been consideredso much as the question whether she forfeited her rights because heruncle had given her in marriage. The argument rather seems to havebeen that she succeeds through her uncle, and her uncle having given herin marriage might she not be taken to forfeit her claims to any rightsarising indirectly through that uncle ? The rights coming to her father,himself an uncle of the deceased, do not seem to have been challenged.The opinion was that she would not forfeit her rights, and this Courtadopted that view.
The taking of similar evidence has been common, even in recent times;wide Dewendra TJnnanse v. Sumangala Terunnanse' and SaranankaraUnnanse v. Indajoti Unnanse
The case reported by Austin was decided as far back as 1851. Then in1902 came the decision in Dinga v. Happuwa' where this Court held thata deega married daughter does not forfeit her right to inherit land, whichhad been acquired by her mother, or to which her mother had succeededcollaterally or otherwise than by inheritance from her father. These lastare the important words. This decision followed a decision by Lawrie J.in an unreported case. Lawrie J. had been District Judge of Kandy formany years and his opinion always received the greatest consideration.In Kiriwante v. Ganetirala * he said that in a case where a matter wasuncertain a daughter ought not to be deprived of a share of her inherit-ance :“ Unless the law be clear, and unless the forfeiture be certain
it should not be decreed Withers J. agreed. It is a statement whichcommends itself to me. In Dingiri Menika v. Appuhamy° where the
question related to acquired property, Lawrie J. said—“I
doubt whether the forfeiture created by a deega marriage extends furtherthan to the father’s estate, and even with regard to his estate the tendencyever was to relax the law and to admit the deega married daughter.”
There is therefore authority which covers this point, and I see noreason why the rights of the deceased’s female cousins should be affectedby their marriages in deega. There is no reason to interpret the state-ment at page 584 of Modder as an authority to the contrary.- All hesays is that when the direct line of descent is broken, inherited propertygoes over to the next nearest line which issues from the common ancestralroof-tree. That is the rule under a number of systems of law, includingthe Roman-Dutch law. In this case one goes back to Ukku Banda'sgrandfather before one begins to come down. That does not mean that.Ukku Banda’s grandfather is artificially revived and that the propertypasses to him and then he dies and it passes to Kapuruhamy, who is alsoartificially revived; and it being Kapuruhamy’s inherited property hisdaughters married in deega take nothing. Such a way of looking at thematter is most unnatural.
7-
1 29 N. h. R. 415.• 20 N. L. R. 385.
* 6 N. L. R. 133.
» 7 N. L. R. 100.*2 N. £. R. 92.
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DE KRETSER J.—Kiri Banda v. Dingiri Banda.
There was an attempt to suggest that Ukku Banda left acquiredproperty as well, and that in the case of such property the male cousinsshould be treated as brothers and therefore exclude their sisters. Tobegin with, while there was some suggestion at an early stage of the trialthat Ukku Banda owned acquired property, this position seems to havebeen abandoned during the course of the trial, and the District Judgeclearly goes on the footing that the property in question was inheritedproperty. It is too late to go back again. But I do not see how theposition would be any better for the respondents, were it otherwise. Theirstrongest arguments are based on the assumption that this property isparental property.
The position that the brothers take all the acquired property of adeceased brother to the exclusion of the sisters is now established, but notwithout considerable challenge in more recent years. There is no reasonto extend the forfeiture. It has been supposed that the reason why thesisters were disqualified was that they contributed no effort to theacquisition, whereas the labourers of the family ought to be rewarded,and the brothers were the toilers and earners. The claim was evengreater when, as often happened, two brothers took one woman to wife.No such consideration, if that be the true one, applies to the cause ofcousins, none of whom contributed to any acquisition by Ukku Banda.
Sawer, at page 13, deals with the rights of inheritance to both ancestraland acquired property. Dealing with the case of sisters, he says thatthey have " only the same degree of interest in their deceased brother’sacquired property that they have in their deceased parents’ estate.”And it has now been settled that the sisters are excluded by the brothers.But the sisters do come in if the brothers and their sons fail.
Proceeding further, at length arrives at the statement that theproperty goes to cousins (called brothers and sisters) on the mother’sside, that is to say, the mother’s sisters’ children; and then says that,failing them, it goes to the mother’s brothers and their children, andfailing them to the father’s brothers and their children, and failing themto the father’s sisters and their children. Where cousins are called tothe inheritance there is no distinction between males and females.He makes this quite plain at page 14 when he says—“ When a person diesintestate, leaving no nearer relations than first cousins called brothersand sisters, his or her acquired property shall go equally to such cousinsby the father’s and mother’s side, that is to say, to the children of thefather’s brother or brothers, and to the children of the mother’s sister orsisters, share and share alike.” The last words are most important andcan admit of no doubt.
There is nothing in the case of Menkhamy v. Suddana 1 to the contrary.According to Modder, at page 617 of his work, “ In regard to acquiredproperty there is no definite system laid down by the jurists, but thetendency is to give preference to the maternal over the paternal line,and to elect males before females in the same degree ”. He is summarisingthe law very generally, and even then he speaks only of a * tendency ’.While this statement may be true in general, we have the authority ofSawer for the very situation we are now dealing with.
» Z8 N. L. if. 266.
WIJEYEWARDENE J.—Martmvttu v. Dissanayahe.
31
The order made in the lower Court is set aside, and the appellants aredeclared entitled to the rights they claim with costs both in this Courtand in the Court below.
Nihxll J.—I agree.
Appeal allowed.