1914 Present: Lascelles C. J. and Ennis J.

PERERA v. SETUWA

155-D. C. Kurunegala, 4, 919

Kandyan law-Diga-married sister-Right to inherit paraveni property of deceased sister,

A diga-married sister is precluded by her diga marriage from inheriting the paraveni property of her deceased sister.

THE facts are set out in the judgment.

G. Koch, for the plaintiff, appellant. -The effect of diga marriage is to prevent a diga-married daughter from inheriting from her parents. She does not by a diga marriage forfeit a right to inherit from a deceased sister.

It has been held that even a diga-married daughter does not lose her right to inherit from her parents if she maintains a constant touch with the mulgedara (16 N. L. R. 238). Counsel cited Armour 50; Sawyer 1 and 45; 478-C. R. Kurunegala 1, 526 (January 23, 1914); 192-C. R. Matale, 9, 722 (July 30, 1912).

J. S. Jayewardene, for the respondent. -By a diga marriage a woman loses all rights to inherit the paternal property. Even property which a daughter inherits on the death of her parents ceases to be her property the moment she marries in diga. The principle of inheritance is that the paternal property should always remain in the family. Counsel cited Armour 50, 6 N. L. R. 133, 5 Leader 39, 7 N. L. R. 100, 2 N. L. R. 92.

Koch, in reply.

July 1, 1914. Lascelles C. J. -

This case raises the question whether, under Kandyan law, a diga-married sister is precluded by her diga marriage from inheriting the paraveni property of her deceased sister. Moluwa Duraya died about thirty-six years ago, leaving live children, one of whom, a daughter, Pini, died without issue. Her share in the paternal inheritance was one-fourth, as her sister Bilindi had been married out in diga, presumably in her lather's lifetime. Bilindi, in November, 1910, by deed No. 995 purported to sell a one-twentieth share, being her share in Pini's inheritance, to the plaintiff, who is now bringing a partition action for the share.

The cases of Dingiri Menika v. Appuhami, 1 Dullewe v. Dullewe, 2 Dinga v. Hapuwa, 3 and Kiriwatte v. Genetirala 4 throw little light on the matter now in question, as the question is now with regard to paternal paraveni property, and not to acquired property.

The position assumed by the appellant is a curious one. Bilindi by her diga marriage unquestionably forfeited any share in the paternal estate. It is now contended that on the death of her sister without issue she is entitled to come in and claim a share of the same estate. This seems to me opposed to the recognized principles of Kandyan law.

Mr. Modder (page 178) lays down the proposition for which the respondent contends without doubt or qualifications: "If a man died without issue and intestate, leaving a sister married out in diga, and a brother, the latter will succeed to the deceased's share of the paternal paraveni lands to the exclusion of the diga-married sister, whether the said sister had been so married away previous to the demise of their father or subsequently. " So, where the deceased leaves a brother and an unmarried sister, the share devolves on them in common, but if the sister is afterwards married in diga, she forfeits her share and the whole goes to the brother.

I cannot doubt the correctness of this statement of the law, which is supported by several authorities. For example, in Armour 43 (s, 19), under the heading " Rights of Brothers and Sisters, " the writer, after laying down the proposition that a diga-married daughter, whether married before or after the father's death, is excluded from a share in the paternal estate, proceeds as follows: -

" If the deceased left a brother and an unmarried sister, his share of the paternal paraveni property will of course devolve to the survivors jointly; but in the event of the sister being afterwards married away in diga, she will thereby be deprived of her title to participate in the possession of the