013-NLR-NLR-V-51-APPU-NAIDE-Appellant-and-HEEN-MENIKA-et-al-Respondents.pdf
BASNAYAKE J.—Appv. Raids e. Heen Menika
Present: Basnayake and Gratiaen JJ.APPU NAIDE, Appellant, and HEEN MENIKA et al.,Respondents
8. C. 53—D. C. BaduUa, 8,142
Kandyan law—Daughters married in deega—No re-acquisition of binna rights—Lands possessed in comm-m by daughters also—Acquiessenct.
Where a Kandyan permits his sisters, in spite of their marriage in deega,to possess their share of the land for a long porind of time, he hasacquiesced in their right and cannot be permitted to dony it.
.Al.PPEAL from a judgment of the District Judge, Badulla.
Cyril E. 8. Perera, for plaintiff appellant.
N.Kwtnarasingham, for defendants respondents.
Cur. ado. volt.
September 13, 1948. Basnayake J.—
This is an action instituted by the plaintiff-appellant (hereinafterreferred to as the plaintiff), one D. M. Appu Naide, against the defendant*respondents (hereinafter referred to as the defendants), Samarakoon Mudi-yansclage Heen Menika and Samarakoon Mudiyanselage Hudu Menika,two sisters who were married in deega. The plaintiff asks that be bedeclared entitled to §rds of a field called TJda-arawa of three pelas paddysowing extent, that the defendants be ojeoted therefrom, and for damages.The plaintiff claims title to the land on deed No. 725 of September 9,1943 (P 3), by which he purchased a f share of the land in dispute andthe entirety of another land called Willarawatta from the brother ofthe defendants, one Samarakoon Mudiyanselage Kiri Banda.
The defendants deny plaintiff’s title and state that on the death oftheir father, the original owner of the land, they and their brother, theplaintiff's vendor, in pursuance of an arrangement among themselves,possessed and enjoyed their father’s lands in equal shares. The defen*dants also claim to be entitled to the subject-matter of the action byvirtue of prescriptive possession.
The case went to trial on the following issues :—
Was Kiri Banda, son of Appuhamy, the sole owner of the land
described in the plaint ?
Did defendants 1 and 2 go out in deega and forfeit their rights 1
Prescriptive rights of parties.
Damages.
On the death of Appuhamy, did defendants and their brother Kiri
Banda, in pursuance of a family arrangement, divide the paternalproperties amicably in the proportion of one third share to each ?
The learned District Judge held that, although the defendants weremarried in deega, their brother was not the sole owner of the land; thatthe defendants did not forfeit their rights as they re-acquired them. Onthe question of prescription, he held that the plaintiff had not acquired a
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BASNAYAKE J.—Appu Naide v. Httn Mtnika
prescriptive title and therefore was not entitled to any damages. Hefurthor held that on the death of the defendants* father the property wasenjoyed in equal shares by the defendants and their brother in pursuanceof an arrangement among them. The plaintiff appeals against that orderof the District Judge.
It appears from the evidence that the father of the defendants diedwhen they were children aged 4 years and 1 £ years respectively. Thedefendants married long after their father’s death, but while their motherwas alive. The marriage of the first defendant was registered in 1903(Pi), and that of the second in 1910 (P2). It appears from an entryin PI that the first defendant married in 1898, though her marriagewas not registered till 1903.
In support of their allegation that their brother and they possessedthe paternal lands in common in equal shares, the defendants producedcertain deeds. I shall refer to them in their chronological order. Bydeed No. DIG of January 24, 1901 (D2), the first defendant, her mother,and her brother sold a paddy field called Himbiliyagaha Kumburato one Muthu Menika; by deedNo.o,492 of May 8,1932 (D3), the defend-ants sold two-thirds of a land called Pellagaha-arawe Paulapanguwato two daughters of Badderala ; by deed No. 9,306of October 23, .1932 (D1);Kiri .Banda sold one-third of the land in dispute to one Badderala;by deed No. 15,060 dated May 1,1938 (D4),the first defendant sold to theplaintiff's son, Naidehamy, a land called Willarawatta which she claimedby right of paternal inheritance.
Learned counsel for the appellant submits that the evidence does notestablish that the defendants re-acquired binna rights after their marriage.He submits that the fact that the brother of the defendants had renouncedhis right to certain immovable property belonging to the family which hepermitted tho defendants to treat as their own although they were notentitled to do so, does not confer on the defendants any right to them.Counsel contends that, in any event, the fact that the brother did notinsist on his rights to the ancestral lands does not entitle the defendantsto claim binna rights in respect of them. He submits that no pres-cription can arise because the defendants possessed this land with theconsent of their brother who was entitled to it and that there was noadverse possession. The field itself is cultivated by one Gamarala on an“ ando ” basis.
There is no evidence that the defendants re-acquired binna rights, nordoes learned counsel for the respondents seriously contend that thedefendants had acquired binna rights, but bo relies on the long-standingfamily arrangement by which the brother and sisters enjoyed theancestral lands in equal shares.
The arrangement relied on by the defendants is denied by their brother,who states that he waived his rights in certain lands only. He deniesthat- he waived his rights in the land iu dispute.
In the instant case the deeds produced and the oral evidence which thelearned District Judge has accepted go to show that despite the fact thatthe defendants wore not entitled to a share of the ancestral lands, includingthe land in dispute, they continued to possess and enjoy the subject-matter of the action and other lands as if they bad not gone out in deega.
BASNAYAKE J.—Appu Naide v. Hetn Jtfemfca
65
I am unable to see anything in the statements of Kandyan Law bySawers and Armour which has a direct bearing on the case under considera-tion, The nearest case is found in Armour where he discusses the right ofa deega married sister who gets possession of the paternal lands. He says 1:
** If, after the fathor’s death, the daughter was married out in deegaby her brother, or by their mother, the said daughter will thereby loseher right to a share of the inheritance, and consequently her brother willthen become sole heir to the father’s landed property. And althoughthe said deega married sister did afterwards get possession of a portionof her father’s lands, sho will not have a permanent title of that portionit will at her death revert to her brother, or he being dead, to his issue—it being premised that tho said parties were full brother and sister, andthat the latter had remained in her deega settlement until her death.”As there is no rule of Kandyan Law which is applicable to the presentquestion it must be decided according to general principles of law,
In S. C. 234—C. R. Kegalie, Case No. 16,342—S. 0. Minutes ofFebruary 9,1922* which was cited by the proctor for the defendants in thetrial court but to which no reference was made at the argument in appeal,it was held by Sir Anton Bertram, Chief Justice, that it is open to abrother to waive tho forfeiture of the rights of a sister married in deega.In that case it was proved by the production of a series of deeds that thedeega married sisters had dealt with several paternal lands as if they hadrights to them. The rule applied in that case has its origin in the RomanLaw (Code 1, 3, 51) according to which everyone is at liberty to renounceany benefit to which he is entitled.
I prefer to apply to this case the doctrine of “acquiescence ”2 rather thanthe associated doctrine of “ waiver ” applied by Sir Anton Bertram in thecase I have oited. In the words of Lord Cottenham in Duke of Leed* v.Earl of Amhersts:
“ If a party, having a right, stands by and sees another dealing withthe property in a manner inconsistent with that right, and makes noobjection while the act is in progress, he cannot afterwards complain.”Thesiger, L.J., states the same doctrine thus in the case of De Bussche
v .Alt*:
“ If a person having a right, and seeing another person about tocommit, or in the course of committing an act infringing upon thatright, stands by in such a manner as really to induce the person com-mitting the act, and who might otherwise have abstained from it, tobelieve that he assents to its being committed, he cannot afterwards heheard to complain of the act. This, as Lord Cottenham said in thocase already cited, is the proper sense of the term ' acquiescence andin that sense may be defined as quiescence under such circumstances asthat assent may be reasonably inferred from it, and Is no more than aninstance of the law of estoppel by words or conduct.”
' 1 Armour's Grammar oj the Kandyan Law—Perera's Edn. p. 55.
* Spencer-Bower on Actionable Miarepresantation, p. 351.
Encyclopaedia of the Laws of England, Vol. 1, p. 128 (2nd Edn.)
Story—Equity Jurisprudence, Vol. II, Secs. 1533-1553 (12th Edn).
8 41 English Reports 886 at 888.* (1878) L. R. 8 Ch.D. 2S6 at 314.
• (1022) 50 A 1. R. 276.
GRATIAEN J.—Krishnakutty v. Maria Nona
The defendants, with the knowledge of their brother, the plaintiff’spredecessor in title, enjoyed two-thirds of the land as their own for overthirty years, the first defendant for about forty-six years and the second forabout thirty-six years. His evidence and his conduct show that he wasnot unaware of his rights and that he assented to the defendants' dealingwith the lands in the way they did. He cannot now be allowed, afterstanding by, with a knowledge of his rights, to deny the defendants theright to the land which they have enjoyed as their own for so manyyears.
The appeal is dismissed with costs.
Gratia.1—*1 agree that the appeal should be dismissed with costs.
Appeal dismissed.