037-NLR-NLR-V-02-KIRIWANTE-v.-GANETIRALA.pdf
1896.
February 1 j.and
March 31.
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KIRIWANTE' v. GANETTRALA.
D. C., Kandy, 8,185.
Kandyan Law—Diga married woman—Her right to share, equally withher brothers, in her mother's estate.
Plaintiff, a Kandyan, woman married in diga, claimed a share,equally with her brothers, in certain lands winch belonged to hermother’s estate. Plaintiff’s parents had each a separate estate/and only a third share of the lands claimed had come to her mother,from her paternal ancestors—
Held that, in the^uncertainty of the law on the subject and theconflicting state of the authorities, plaintiff should not be deprived' of the share she claimed of her inheritance.
^j ^HE facts of the case sufficiently appear in the judgment.
Van Langenberg, for appellant.
Dornhorst, for respondent. .
31st March, 1896. Lawbie, J.—
The authorities are conflicting as to the right of a woman marriedin diga to inherit equally with, her brothers her mother’s property.
The question arose in D. C., Kandy, 27,254. There, on 13thAugust, 1855 (Austin, p. 194), the District Judge, Mr. Power,held that a diga married daughter does not forfeit her right toher maternal inheritance, and gave'judgment on the footing thatcertain lands had belonged to the mother; but in appeal theSupreme Court pointed out that there was nothing to show thatthe lands had belonged to the mother, and the case was sent backfor further investigation. Eventually it yras proved that thelands were the property of the father, and not of the mother.
Shortly afterwards, on 30th August, 1855, the same questionarose in D. C., Kandy, 27,911, and the same District Judge, Mr.Power, gave a judgment opposed to his judgment in the. formercase pronounced a fortnight before.
His judgment was :—“ In this case the point for consideration is,“ whether plaintiff, by her admitted diga marriage, has or has not
forfeited her right to the lands in question, the lands being“ admitted to have been the property of her mother’s father. On“ this point it is clearly laid down by Armour that if a woman left“ a daughter -married in diga and a son, the latter would inheirt“ the lands derived from his mother’s paternal ancestors to the
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“ exclusion of his diga^ married sister. This authority [continued“ the District Judge] the Court considers conclusive, and plaintiff“ by her diga marriage must be considered to have forfeited all
right to the lands in question, it not having been shown that the“ parents had each an independent estate.”
This was affirmed in appeal, without reasons, on the – 5thDecember, 1856.
That judgment -then seems to deny the right of a diga marrieddaughter to succeed to her mother’s lands—first, in cases wherethe lands were derived'from the mother’s paternal ancestors.
Does that condition exist here ? The lands certainly belongedto the mother’s'paternal ancestors. She got only one-third by deedfrom her father ; she succeeded to two-thirds by inheritance fromher sisters. Two-thirds at least of these lands were not derivedfrom the paternal ancestors in the meaning of the judgment in27,911.
The second condition is that it must be shown that the parentshad not each an independent estate.
In the present case, the parents had each an independent estate.
The District Judge, in the judgment before us, dealt separatelywith Kirala’s lands and with Dingiri Menika’s.
If the judgment in 27,911 does not apply, we are left to decidethis case on Kandyan Law.’
The authorities on this point are very conflicting. Armourhimself gives different opinions, Sawyer gives another opinion.The matter is uncertain ; but a daughter ought not to be deprivedof a share of heir inheritance. Unless the law be clear, and unlessthe forfeiture be certain, it should not be decreed.
I would affirm with costs.
. Withers, J.—
I agree, in view of the uncertainty of the Kandyan Law on thesubject.
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12-
1896. „February 11and
March 31.Lawbie, J.