028-NLR-NLR-V-65-MUTTU-MENIKA-KUMARIHAMY-Appellant-and-MUDIYANSE-and-others-Respondents.pdf
BASNAYAKE, C.J.—M-uttu Menika Kumarihamy v. Mudiyanse
131
Present: Basnayake, C.J., Herat, J., and Abeyesundere, J.
MUTTU MENIKA KUMARIHAMY, Appellant, and MUDIYANSE
and others, Respondents
S. C. 510159—D. C. Puttalam, 6041
Kandyan Law—Woman married in deega—Re-acquisition of binna rights—Kandyan
Law Declaration and Amendment Ordinance, a. 9.
A woman married in deega prior to the Kandyan Law Declaration andAmendment Ordinance may be shown, on proper evidence, to have regainedbinna rights.
Plaintiff, whose marriage waa registered in deega prior to the Kandyan LawDeclaration and Amendment Ordinance, did not leave her mulgedera butlooked after her father till his death and enjoyed equally with her brother andsisters the paternal property.
Held, that the plaintiff was entitled to claim binna rights.
Appeal from a judgment of the District Court, Puttalam.
W. Jayewardene, Q.C., with D. R. P. QoonetiUeke and L. C.Seneviratne, for Plaintiff-Appellant.
T. Samerawidcreme, with M. Rafeeh, for Defendants-Respondents.
October 26, 1962. BasnayakE, C.J.—
The only point in dispute in this action is whether the plaintiff whosemarriage is registered as a deega marriage is entitled to claim binna rightsand whether the plaintiff’s brother, the 1st defendant, and her sistershave by their declarations and conduct conceded those rights to her.
It is not denied that the plaintiff’s marriage was registered as a deegamarriage. The plaintiff’s evidence is that though she married indeega she resided in the mulgedera with her husband who was a clerkin the Kurunegala Kachcheri. Two children were born in the mulgederaat Wadigamangawa—one in 1914 and the other in 1917. At the timeof her marriage in 1909 her mother was dead but her father was alive.It was in 1919 that he died. During his life time the plaintiff and her
132
B ASNAYAKE, C.J.—Mxsttu Monika Kwiftwihamy v- Mudiy&nta
other sisters Dingiri Amma alias Sitt&mma. Kumarihamy and Heroa-wathie Kumarihamy lived together in the midgedera. Hemawathiedied in 193S. Her child Ran Menika is the 3rd defendant. DingiriAmma alias Sibtamma Kumarihamy died in 1M0 leaving a daughter
Nandawathi© the 2nd defendant. The plaintiff supported her oraltestimony that she was accorded binna rights by her brother and sisterswith documentary evidence. They axe as follows :—
(o)The birth certificates PI and P2 which show that her two childrenwere born at Wadigamangawa where the mulgedera was.
(6) Mortgage Bond P4 by which the plaintiff, 1st defendant
Abeysingha Rasanayaka Kiri Mudiyanse Nilame and her sisterHemawathie Kumarihamy mortgaged in March 1933 five lands calledKongahawatta, Suxiyagahalanda, Katuxu-muwangahawatta, Palu-gahahena and Navaditobamedamagahawatta in extent 5 acres 3 roodsand 1 perch with the buildings and plantations thereon.
Document P5 dated 1st July 1933 by which the 1st defendantin authorising D. W. Kastuii Axachchi an assistant teacher at theAnamaduwa School to occupy a house and land described it as “ ourhouse built on the portion of land extending from the fence of SultanTamby up to the fence of the land whereon Stephen, the painter,resides out of the lands belonging to us, Abeysingha RasanayakaDmgiriamma Kumarihamy, Abeysingha Rasanayaka Kiri MudiyanseNilame, Muttumenika Kumarihamy and Hemawathie Kumarihamy ofWadigamangawa
Document Pll dated 26fch July 1931 whereby Dingiri AmmaKumarihamy, the 1st defendant Kirimudiyanse Nilame, the plaintiffMuttu Menika Kumarihamy and her sister Hemawathie Kumarihamypermitted Kaluanaide Vidanage If aide to occupy and reside on theportion of land extending from the fence of the garden of AsanarMudalaly up to the fence where SandanA resides “ out of the landssituated at Anamaduwa and belonging to them
Document P12 dated 26th July 1931 by which Dingiri AmmaKumarihamy, the 1st defendant Kiri Mudiyanse Nilame, the plaintiffMuttu Menika Kumarihamy and her sister Hemawathie Kumarihamyof Wadigamangawa authorised Jayakody Arachchige Don HendrickAppuhamy to reside on the portion of land between the fence of John’sboutique and the fence of the boutique where TJpasaka Tamby resides“ of the lands belonging to them ” and situated at Anamaduwa.
The tenant on P12 Hendrick Appuhamy stated that the 1st defendantsaid that the land belonged to them and the others whose names wereinserted in the document. Kaluanaide’s evidence that it was the 1stdefendant who gave the names of the other co-owners and that thedocument was written to his dictation goes a long way to strengthen theplaintiff’s claim. The 1st defendant admitted in his evidence that afterthe marriage the plaintiff came back to the mulgedera and looked after
BASNAYAKE, C.J.—Muttu Menika JLumarihamy v. Mudiyanse
133
her father and lived there, as his eldest sister Dingiri Amina Kumari-hamy was a cripple and was unable to attend on her father. He alsoadmitted that the plaintiff took the produce of the paddy fields atHelambe for quite a long time. The plaintiff’s niece Ran Menika alsoadmitted that fact in her evidence. Oral evidence of an interested' person where it is unsupported by other evidence has to be closelyscrutinised to ascertain to what extent it is coloured by self-interest;but the evidence that has been referred to above goes to show that inthis case the plaintiff’s oral evidence finds support in a number ofdocuments to which she, the 1st defendant and her sisters were parties.In the face of the oral evidence supported by documentary evidence,the learned District Judge’s conclusion that the plaintiff did not regainany rights in her paternal property cannot be sustained.
In the instant case the plaintiff’s marriage appears to have been adeega marriage only in name. She did not leave her midgedera, shelooked after her father till his death and enjoyed equally with her brotherand sisters the paternal property. This being a marriage before theKandyan Law Declaration and Amendment Ordinance, it is not houndby the inflexible rule laid down in section 9 of that Ordinance. In amarriage before that Ordinance the mere registration of the marriage asa deega marriage does not result in the forfeiture of the rights of thewoman whose marriage is registered as a deega marriage (Marshall’sJudgments—Mampitiya v. Wegodapola1). There are a number of decisionsof this Court1 2 3 in which on less cogent material a woman married in deegahas been held to have regained, bivna rights.
. The judgment of the learned District Judge is therefore set asideand the case sent back in order that interlocutory decree may be enteredin terms of the prayer in the amended plaint.
The appellant is entitled to the costs of this appeal.
Herat, J.—I agree.
Abeyestotoere, J.—I agree.
Appeal allowed.
1{1922) 24 N. L. R. 129.
2(a) Dingiri Ammo. i>. Ukku Banda, (1905) Ord. 193.
Appuhamy v. Kiri Menike, (1912) 16 N. L. R. 238.
Appuhamy v. Kumarihamy, (1922) 24 N. L. R. 109.
Punchi Menika v. Appuhamy, 19 N. L. R. 358.
Punchi Menika v. Peeris Sinno, (191J) 1 Times 148.
(/) Appuhamy v. Kiri Banda, (1926) 7 Law Recorder 176, (1926) 4 Times 75.
Banda v. Dngarala, 9 Law Recorder 45.
Perera v. Aslin Nona, (1958) 60 N. L.R. 73 at 75-76.