Ran Etana Et Al. V. Nekappu Et Al.

Present: Wood Renton J. and Grenier J.   June.2,1911

RAN ETANA et al. v. NEKAPPU et al.

139- D. C. Kegalla, 2,506.

Kandyan law-Woman marrying in " diga " after death of parents- Forfeiture of right to paternal properly-Marriage in "diga" pending an action for declaration of tide by woman-Objections taken during trial-Counsel must get Judge to note them.

It is the duty of the brothers, after the death of their parents, to give their sister in marriage, whether in bina or in diga; but there is nothing to prevent a woman from voluntarily contracting either kind of marriage; where she contracts a diga marriage voluntarily, she forfeits her rights to the paternal inheritance.

Where during the pendency of an action for declaration of title by a Kandyan woman for her paternal property she contracted a marriage in diga,-

Held, that she had ceased to be the heir to any part of her father's estate, and that she could not claim a declaration of title to her paternal property.

It is the duty of a pleader, when taking a substantial objection in the course of a trial, to ask the Court to note his objection and the Court's decision thereon, instead of making use of the petition of appeal for reference to the matter.

THE facts are set out in the judgment.

H. A. Jayewardene, for the appellants.-After the death of the father, the brothers cannot compel a sister to marry in diga and thus deprive her of her right to a share of the paternal inheritance.

Even if the second plaintiff had married in diga after the institution of the action she would not lose her rights. The Judge has no right to base his judgment on anything that happened after the institution of the action. Plaintiffs' claim must be determined according to her rights at the date of the institution of the action. Silva v. Nona Hamine,1 Ponnama v. Weerasuriya,2

A. St. V. Jayewardene, for the respondents.-After the death of the father it is the duty of the brothers to bring about the marriage of the sisters, though they could not force the sisters against their wish. But in this case the marriage was not forced on the plaintiff. The question whether a daughter marries of her own accord or not does not affect the question of forfeiture. Meera Saibo v. Pmchirala.3

1 (1906) 10 N. L. R. 44.

2(1908) 11 N. L. R. 217.

3 (1910) 13 N. L. R. 176 (at page 178).

As the plaintiff divested herself of her right to a share of the paternal inheritance by her marriage during the pendency of the action, she is not entitled to a decree. See Eliashamy v. Punchi Banda,1 1 Nathan s. 593.

Cur. adv. vult.

June 2,1911. Wood Renton J.-

I sympathize with the regret with which the learned District Judge came to the conclusion that the second plaintiff-appellant is not entitled to judgment in her favour for the share that she claims in the land in suit. She was admittedly married after the date of action brought, and the District Judge has found as a fact that she was married in diga. I have come with reluctance to the conclusion on that point he is right. The marriage certificate which was put in evidence (D 2) expressly describes the marriage as having been in diga. Of course that fact is not conclusive, for we find in the certificate (D 1) of the marriage of the second plaintiff-appellant's sister, Ran Etana, a similar description given of a marriage, which the District Judge has held, and I have no doubt rightly held, on the evidence, not to have been a diga marriage. Still, the certificate is an element in the case. As regards Ran Etana, the evidence showed that she had at first lived with her husband in the " mulgedara," and that she went to live with him in his own house later on because the defendants-respondents would not allow her to stay in the parental house. The second plaintiff-appellant was also compelled to leave the parental house, but she was not married at the date when she did so, and, as the learned District Judge

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