032-NLR-NLR-V-12-BABANISSA-et-al-v.-KALUHAMI-et-al.pdf
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Present : Mr. Justice Wendt and Mr. Justice Middleton.BABANISSA et al. v. KALUHAMI et cd.
. Gnu Etana, Added Defendant, Appellant.
1909.
May 12.
D. C„ Ratnapura. 1,414.Kandya n Law—Associated marriage—Diga married daughter svbsequenUycontracting a bins marriage—Right to inherit father's -property.
A Kandyan woman who had contracted, a diga marriage but whosubsequently returned to the parental roof and contracted a binamarriage during the lifetime of her father is entitled to succeed toher father’s property to the exclusion of his other diga marriedusters.
D. G., Kandy, 18,467,' followed.
A
CTION ret vindicatio. Appeal by the added defendant,originally 4th plaintiff, from the judgment of the District
Judge (Allan Beven, Esq.), which was as follows (March 31,1908):—“ In this case there were originally five plaintiffs, who jointlyasked for a .declaration of title to eleven-twelfths of the landKamanaidegeliyadda, after admitting the title of the 11th defendant,Kirihamy, to one-twelfth. Subsequently the 4th plaintiff, GiraEtana, withdrew her proxy given to her Proctor (vide Journal ofJanuary 29, 1907), and on September 10 filed an affidavit to theeffect that the plaint did not correctly disclose her title to the land,and that the instructions given by the other plaintiffs to her Proctorwere not correct. On October 12,1907, she was allowed to be madean added defendant, and subsequently filed a separate statementof claim for half the land. On January 27, 1908, Menikhamy,the 3rd plaintiff, withdrew her proxy given to her Proctor, Mr.Dharmaratne, and was represented by another Proctor. She filedno separate statement of clailn, as her title to the land was setout in the original plaint.
“ The case against 4th, 5th, 6th, 7th, 8th, 9th, and lOth.defend-ants had been withdrawn at an early stage of the case (vide Journalof October 6,1908). The 2nd and 3rd defendants never filed answer,nor was any evidence led as regards them. So the position of allthese defendants need not be discussed. The 5th plaintiff was notpresent at the trial, nor did he withdraw his proxy from Mr. Dharma-ratne, the original Proctor for all the plaintiffs. On the other hand,Mr. Dharmaratne received no instructions from him, but his interestsare identical with those of 3rd'plaintiff and 11th defendant.
11 -1 Perera's Collection 182,
E 2
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1909,
May 12.
“It is admitted by all the parties to the case that Kitanhamy,Ukkuhamy, Heenhamy, and Tenanhamy were the original owners ofthe land, each being entitled to one-fourth, also that Heenhamy andTenanhamy sold their half share by deeds Nos. 2,614 and 4,895 in1858 and 1869 to Adonchia Waduwa, who by deed of gift No. 8,721dated November 14, 1892, gifted this share to his daughter Gnathi,who in 1898 sold her interests in the land to the 1st and 2ndplaintiffs. Their title to half the land is therefore not disputed. Theonly question I have to decide as regards them is what damages theysuffered by the alleged unlawful entry' by 1st defendant and hisworkmen to dig for gems. The issues framed as between 3rdplaintiff, added defendant (original 4th plaintiff), and 1st to 11th
defendants are as follows :—
r
“(1) Bid Ukkuhamy and Kitanhamy live as associatedhusbands of Punchi Etana, or did Ukkuhamy dieissueless ? (Third plaintiff admits that Ukkuhamy andKitanhamy were associated husbands.)
“(2) Did Menikhamy (3rd plaintiff) and Kombihamy (motherof 5th plaintiff and Appuhamy) forfeit their rights to thepaternal property by their diga marriages ?
“(3) Was Gira Etana married in bina ?
“ (4) Did Kitanhamy possess his brother Ukkuhamy’s one-fourthshare in the assignment of the mortgage referred to inparagraph 9 of 1st defendant’s answer ? (It is admittedby 1st defendant that Kitanhamy was in possession ofhalf the land after the assignment.)
“(5) Were Rattranhamy and Mohottihamy (vendors to 1stdefendant) the children of Tenanhamy, and were theyentitled to the one-eighth conveyed to 1st defendant?
“(6) Prescriptive rights of parties.
“(7) Damages.
“(81 Even if Ukkuhamy lived in association with Kitanhamy,was such associated marriage valid in law ?
“ With regard to the 1st issue, there is abundant evidence, bothdocument and oral, to prove that Ukkuhamy and Kitanhamy livedas associated husbands of Punchi Etana. By. deed No. 1,866 datedFebruary 24, 1857, Ukkuhamy had mortgaged one-fourth of thisland to Kirihamy (AD5) and the endorsement is by Punchi Etana,‘ wife of Ukkuhamy.’ The caption of deed No. 780 dated October12, 1860 (A D 0), recites that Punchi Etana, ‘ widow of the lateAluwatte Kapuge Ukkuhamy,’ and Kombihamy, his daughter, dohereby mortgage one-fourth of Kamanaidegeliyadda. There is, there-fore, not the slightest doubt in my mind that both Ukkuhamy andKitanhamy lived as associated husbands of Punchi Etana. That wasbefore 1859, for in the deed of 1860 Punchi Etana is described asthe widow of Ukkuhamy. In 1862 Punchi Etana and Kitanhamy
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registered their marriage (D 3). Ukkuhamy, therefore, did not dieissueless. There were three daughters of the associated marriage :Kombihamy, Menikhamy (3rd plaintiff), and Gira Etana (addeddefendant). There were no sons of the marriage. The addeddefendant, Gira Etana, claims the half share of this land belonging toher two fathers, on the ground that her two sisters were married indiga, and she alone was married in bina, as evidenced by her marriagecertificate (ADI).
“ On the other hand, it is contended on behalf of Menikhamy,3rd plaintiff, that Gira Etana was first given out in diga to one Hana-kahage Ranhamy of Halpe, and that she is therefore in no betterposition than her two diga married sisters. This Gira Etana denies.But the production of the deed of gift No. 1,689 dated September 3,1867 (P 1), puts the matter beyon>- doubt. By that deed Kitan-hamy and Punclii Etana gifted an ..ndivided half share of this landamongst others to the three daughters: Kombihamy of Halpe,Menikhamy of Uva, and Dingiri Etana {alias Gira Etana) of Halpe,and their two sons-in-law, Dingirihamy; Vel-Vidane of Halpe, andHarankahage Ranhamy of Halpe. It is admitted that Dingirihamywas married to Kombihamy, therefore it follows that H- Ranhamyof Halpe must have been the husband of Dingiri Etana, who wouldnot have been described as ‘ of HaJpe ’ unless she was living there.It may be that she subsequently returned to the ancestral houseand contracted a bina marriage, but I do not think that fact will .operate as a bar to the rights of the two diga married sisters. Inother words, when there are three diga married daughters, and one ofthem subsequently returned to the parental roof and contracted abina marriage, that fact does not, ipso facto, divest the other twodaughters of their rights. In this case there were no sons, and at firstno bina married daughters, therefore aU the diga married daughterswould succeed equally.1 It was contended that the deed of gift wasnever acted upon as it. was never registered. But the same maybesaid of deed No. 2,271 dated January 19, 1884 (A D 2), in favourof Gira Etana (added defendant) and her husband, which was notregistered till February 15, 1906, just before the institution ofthis case.
"Besides, there is evidence to show that 3rd plaintiff returnedfrom Uva with 11th defendant, he- son, who was then eleven ortwelve years old. Added defendant has admitted that she adoptedAppuhamy, the other son of 3rd plaintiff, who helped in the culti-vation and took part of the crop of this field. She also adopted 5thplaintiff, the son of her sister Kombihamy. There can be no mannerof doubt that, the rights of Menikhamy (3rd plaintiff) and her sonsand of the. son of Kombihamy have all along been Recognized. Thehusband of Gira Etana took a lease No. 17,466 dated January 23,1906 (P 2), from Horatalhamy, 5th plaintiff, for one-sixth of this1 Marshall’s Judgments 328 and Thomson’s Institutes, Vol., II., 632.
1909.
May 12.
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land. His excuse for doing this is, I think, very feeble. He statesthat although, he knew 5th plaintiff had no right, he took the leasebecause he found 1st defendant, an influential man, might take asimilar deed from 5th plaintiff, but if his wife had been in possessionand entitled to half the land, there was no absolute need for this.One of the sons of Kombihamy, by deed No. 15,497 dated January27, 1906, transferred his half share to the 11th defendant. I holdtherefore, after carefully considering the evidence, that Gira Etanahad no adverse possession of the half share of her fathers Ukku-hamy and Tenanhamy, but that all three daughters succeededequally to the extent, viz., to one-sixth each. Gira Etana wouldtherefore be entitled to one-sixth, Menikhamy (3rd plaintiff) to one-sixth, 11th defendant to one-twelfth, and 5th plaintiff to one-twelfth.The 1st defendant alleges that Ukkuhamy died issueless, and hisone-fourth share devolved on his three brothers, each of whombecame thus possessed of.. one-twelfth. Subsequently Heenhamydied without issue, and.his one-twelftli was divided between the twosurviving brothers Kitanhamy and Tenanhamy, whose shares fromUkkuhamy and Tenanhamy thus amounted to one-twelfth and onetwenty-fourth, equal to one-eighth each. He then goes on to saythat Tenanhamy died leaving two sons, Rattranhamy and Mohotti-
•hamy, who entered into possession of this one-eighth, and by deedNo. 2,852 dated December 4, 1905 (D 2), sold to him.
“ He has not produced, a scrap of evidence to substantiate theseallegations, nor lias he called upon his vendors to warrant and defendhis title. I have already held that Ukkuhamy was an associatedhusband of Kitanhamy, and it has been proved that Tenanhamyand Heenliamv lived in association with one wife, Yahapathhamy,and sold their half share to Adonchia Waduwa in 1869.
“ The 1st defendant has absolutely no title whatever to the land.He has denied that he opened or caused to be. opened a pit forgemming on this land, and alleges that 2nd defendant did so. Butthe evidence is very strong against him- on this point. He is aspeculator of the worst kind, and has been involved in several casesbefore this, having had three injunctions at least issued against him.Having heard that gems were being found on this land, he forthwithwent and got a bogus deed in his favour from two men who areabsolute strangers to the other co-owners, and who had not thecourage to come to Court and warrant his title. I have no doubtthat it is !..e who was instrumental in-stirring up strife amongst theplaintiff's, who are now divided amongst themselves as regards theirrespective shares. My only difficulty is as regards damages, Thereis no evidence to show the value of the gems taken by the 1stdefendant from this land. There is evidence to show that shortlybefore 1st defendant’s entry on the land a pit was sunk by the addeddefendant’s husband and Rs. 2,000 worth of gems were found. Outof this the ground owners were entitled to one-tenth or Us. 200.
mo.
May 12.
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“ There is another method of estimating damages; This land isa field, and after gemming operations are over the pits are coveredup and the field cultivated. Its yield is 25 bags of paddy, averaging2 parrahs a bag, a parrah being worth Re. 1 • 50. This would give ayearly sum of Rs. 75, of which the ground owners would be entitledto half. But rthis action asks for damages for gems found andappropriated by the 1st defendant, and an injunction was obtainedagainst him. I therefore think the measure of damages should be' -the value of gems found in the pit adjoining the one opened by 1stdefendant. In a case like this, when the output of a pit is a matterwithin the peculiar knowledge of 1st defendant, everything shouldbe presumed against the trespasser. It is for him to render anaccount of the gems, if any, found on the land. He has contentedhimself with merely denying that lie sank a pit. I think Rs. 200a fair estimate of the damages. Enter judgment for 1st and2nd plaintiffs for an undivided half of the land, 3rd plaintiff to anundivided one-sixth, added defendant Gira Etana to an undividedone-sixth, 5th plaintiff to an undivided one-twelfth, and- 11thdefendant to an undivided one-twelfth, with Rs. 200 damages, whichare to be divided proportionately amongst them. The 1st defendantto pay all damages and costs of 1st and 2nd plaintiffs and addeddefendant. The costs of 3rd plaintiff will be borne by 1st defendantand added defendant. Fifth plaintiff, who did not appear at thetrial, will have his own costs.”
The added defendant appealed.
Bawa, for the added defendant, appellant.
Samarawickrama, for the plaintiffs, respondents.
Cur. aav. vuU.
May 12, 1909. Middleton J.—
This, the second appeal in this case, was that of the 4th plaintiff,who was subsequently, by order of the District Court, made addeddefendant upon a representation of her case distinguishing it fromthat of the other plaintiffs.
The appellant claims to be a daughter of the associated marriageof the brothers Kitanhamy and Ukkuhamy with Punchi Etana,the other issue of which marriage were the 3rd plaintiff and Kombi-hamy, now deceased, and represented by the 5th plaintiff and the2nd defendant.
The action being one for vindication of title to and damagesfor illegal gemming in a garden called Kamanaidegeliyadda, thelearned District Judge gave judgment awarding amongst othershares one-sixth of the land to the added defendant. The addeddefendant appealed, and claimed that she was entitled to at leastone-third.
ms.
May.lZ.
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1909.
May 12.
Middleton
J.
The District Judge has found, and rightly so I think, that Kitan-hamy and Ukkuhamy, owners of a half share in the garden inquestion, were the associated husbands of Punchi Etana before 1859 ;that Ukkuhamy died be,foie 1860; that the 3rd plaintiff, addeddefendant, and Kombihamy, were the only issue at the marriage,there being no sons ; that in 1862 Punchi Etana and Kitanhamyregistered their marriage; that the added defendant first went outin diga with one Ranhamy of Halpe, and that the other daughterswere also married in diga ; that, added defendant was subsequentlymarried in bina, as proved by the marriage certificate ADI da ter IDecember 13, 1871. This bina; marriage must have occurred inthe lifetime of Kitanhamy, the added defendant’s father, asshown by the fact that lie is a party to deed A D 2 datedJuly 19, 1884.
The deed of P 1 of September 3, 1867, shows that Kitanhamyand Punchi Etana gifted an undivided one-lialf share of the land indispute to their daughters and sons-in-law, and although this deedwas not relied upon by the plaintiffs in establishing their title, butwas discovered in some way by the 1st defendant, whose appealhas already been disposed of, it must, I think, be given effect to, asthere is no evidence that it has been revoked.
By this deed the 3rd plaintiff, added defendant, and Kombihamywould each get one-third of the whole half share formerly belongingto Kitanhamy and Ukkuhamy in common or one-sixth. As,however, Kitanhamy would only have a right to dispose of hisown share of one-fourth, they would each get one-twelfth only bythis deed.
By the decision in D. C., Kandy, 18,457, affirmed in appealon December 7, 1849, reported at page 182 of Per era's Collection,the added defendant would have the advantage of her subse-quent bina marriage’ in Kitanhamy’s lifetime, which wouldprevent her diga married, sisters participating in any share inthe inheritance derived from Ukkuhamy.1 This would, therefore,give the added defendant the whole one-fourth derivable fromUkkuhamy.
The judgment of the District Judge must therefore be amendedby awarding iV -(- | or ia to the added defendant = -J- claimed in.the appeal. The shares of the 3rd plaintiff and Kombihamy mustalso be reduced to one-twelfth eaclij thus diminishing the shares ofthe 5th plaintiff and 2nd defendant to one twenty-fourth each.With these amendments the judgment of the District Judgemust stand. The added' defendant will have the costs of thisappeal.
Wendt J.—1 agree.
1 Modder 65-
Judgment varied.