1922 Present : Ennis and Schneider JJ.

APPUHAMY et al. v. KUMARIHAMY et al.
 
93-D. C. Badulla, 3,585.

Kandyan law-lie-acquisition of binna rights by woman married in diga- Property sold by other heirs before re-acquisition

The re-acquisition of binna rights by a, Kandyan woman, who was married in diga, does not give her title to property alienated by the other heirs before she re-acquired the binna rights.

The re-acquisition of binna rights is not a one-sided process; the father's family must intend, or at least recognize, the results.

THE facts are set out in the judgment of the District Judge R. G. Saunders, Esq.): -

Banda Arachchi was the original owner of the land in dispute. He was married to Kumarihamy, first defendant. They had two children, Heen Banda and Badara Menika, second defendant. Bandara Menika married Punchi Banda (1) in diga, and consequently forfeited inheritance to paternal property. The chief point to be decided in this case is whether Bandara Menika re-acquired binna rights. This is purely a question of fact, and I hold that the evidence, even of the witnesses called by defendant, clearly shows that until the death of her husband Punchi Banda (1), second defendant was living in diga with her husband at Soranatota. The case for defendants is that

after her marriage with Punchi Banda (I) she returned to the mulgedera at kadurugamuwa and took up her abode there. The evidence called disproves this. That second defendant should return to the mulgedera from time to time and visit her mother is only natural, but it is quite clear they were mere " visits," and that second defendant did not return to live permanently at the mulgedera till after the death of Punchi Banda (1), when she returned to the mulgedera and contracted a second marriage. The fact, too, that he brother Heen Banda and Kumarihamy disposed of her original share of the land without consulting her and dealth with it, as Bandara Menika admits " without my knowledge or consent," clearly shows that they believed and acted on "such belief, that by her marriage with Punchi Banda (1). Bandara Menika had forfeited her rights and had not re-acquired them at the time they dealth with the land. There is no doubt that the various documents produced were executed by Kumarihamy and her son Heen Banda, and that the land was possessed by the parties concerned in the documents. I accordingly hold that the plaintiffs became entitled to the land " Beeriyagaha Uhana " by deed of transfer No. 4,432 of November 2. 1918, and by prescriptive possession (issues 1 and 2). As regards the third issue: " Bid defendants dispute title to the said lands in May, 1921, and unlawfully remove half the crop therefrom," there can be no doubt they did in fact do so, the defendants, undoubtedly, did remove half the crop, but their contention is that they did not oust plaintiffs from their (plaintiffs') half share (vide paragraph 2 of the answer). As, however, I have held that plaintiffs are entitled to the whole land, I must hold that defendants did remove half the crop belonging to plaintiffs, and I accordingly give issue (3) in favour of plaintiffs. As regards damages no very satisfactory evidence has been led, but I see no reason for not accepting plaintiffs' figure Rs. 82 (issue 4). As regards issue 6: "Is there a misjoinder of first and third defendants." I hold that they have been rightly joined, third defendant is the present husband of second defendant, and it was by the acts of first defendant in conjunction with Heen Banda that plaintiffs ultimately, possessed this land and in any dispute to plaintiffs' right to the same. It appears to me natural and proper that the party on whom plaintiffs base their rights should be made parties to the action.

Zoysa (with him Batuwantudawa), for appellant.

H. V. Perera, for respondent.

September 6, 1922. ENNIS J.-

This was an action for declaration of t