Punchi Menike V. Appuhamy et Al.,

1917 Present : Wood Renton C.J. and De Sampayo J.

PUNCHI MENIKE v. APPUHAMY et at.

414-416-D.C. Ratnapura, 2,076.

 Diga marriage of daughter-Re-acquiring binna rights-Prescription among co-owners.

A daughter married in diga can regain, even after her father's death, binna rights during the lifetime of her husband and without any divorce from him, or re-marriage in binna, by maintaining a close and constant connection with the mulgedara.

There may be prescription among co-heirs where there is an overt act of ouster or something equivalent to ouster. But what might be acts of adverse possession against a stranger have, in questions arising between co-heirs, to be regarded from the standpoint of their common ownership.

THE facts are set out in the judgment.

Zoysa, for the appellant in No. 414.

Bawa, K.C., and W. H. Perera, for the appellant in Nos. 415 and 416.

R. L. Pereira, for plaintiff, respondent, in all the appeals.

Cut. adv. vult.

January 30, 1917. WOOD RENTON C.J.-

This is a complicated partition action, the trial of which has proceeded before four different District Judges. The District Judge who actually disposed of it did not himself hear most of the evidence, and a most regrettable delay of about nine months occurred between the close of the trial and the delivery of the judgment.

The lands sought to be partitioned are valued at about Rs. 8,000, and are set out in two schedules to the plaint. The plaintiff claims a one-fifth share of the lands in the first schedule, and a one-sixth share of the lands of the second schedule, by right of inheritance. The property originally belonged to Hamy Lekama, who died fifty or sixty years ago. He left six children, namely, (i) Dingiri Menika, (ii) Hamy, (iii) Punchi Mahatmaya, (iv) Ran Menike, (v) Kiri Menike, and (vi) Punchi Menike, who is the plaintiff. The first defendant is a son of Dingiri Menika, Ran Menike is the second defendant, Punchi Mahatmaya is the third, and the fourth to the eleventh defendants represent Kiri Menike. There are, besides, two added defendants, of whom, the first, Kiri Appuhamy, claims under Punchi Mahatmaya, and the second, Mr. Tennekoon, claims

under Dingiri Menika, by deeds of transfer which are of comparatively recent date. Hamy, the second son of the original owner of  the lands, died intestate and without issue, after having transferred his interests to his bother, Dingiri Menika. One of the main issues raised and contested in the District Court was the question whether  Punchi Mahatmaya was a son of Hamy Lekama. The learned District Judge, after hearing evidence on both sides, answered that question in the affirmative, and his decision upon that point was not challenged at the argument of the present appeal. The remaining issues were (i) whether the three daughters of Hamy Lekama, Ban Menike, Kiri Menike, and Punchi Menike, were or were not married in diga, and whether, if so, they had thereby forfeited their claim to a share in their father's estate; and (ii) the rights of the added defendants above referred to. The learned District Judge held on the evidence that all three daughters had been married out in diga. There is no appeal against this finding by the fourth to the eleventh defendants, who claim under Kiri Menike, and we are, therefore, no longer concerned with that part of the case. But the District Judge also held that, while Punchi Menike had been married out in diga, she had re-acquired binna rights by subsequently returning to the mulgedara, and that neither her brother Dingiri Menika nor her sister Ran Menike had acquired as against her title by prescription to her share of the inheritance. In dealing with this point, the District Judge says incidentally that there can be no question of prescription between co-heirs. That is, of course, too general a statement, which the decision of the Privy Council in Corea v. Appuhamy1[(1913) A.

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