Mohamadu V. Dingiri Menike Et Al.,

1933 Present: Garvin A.C.J., Dalton and Drieberg JJ.

MOHAMADU v. DINGIRI MENIKE et al.

 321-D. C. Kurunegala, 13,495.

Kandyan law-Forfeiture of rights-Adultery of woman with man of lower caste.

There is no rule of Kandyan law under which a woman, who during the subsistence of a valid marriage commits adultery with a man of a lower caste, forfeits her rights to ancestral property.

THIS was an action brought by the plaintiff to vindicate title to one X sixth share of a land, which belonged originally to two persons, viz., Kaurala and Kirihamy. The interests of Kirihamy devolved at his death on three children, Ran Menike, Dingiri Menike the first defendant, and Kiri Menike. Ran Menike was married in binna to one Appuhamy in 1921 and a son was born to them in 1922. The plaintiff claimed a one-sixth share by right of purchase from Ran Menike upon a deed of conveyance No. 987 of April 29, 1927, the defendant resisted his claim on the ground that Ran Menike had forfeited her rights by having contracted a disgraceful union and leaving the mulgedara. The learned District Judge upheld the plea.

Navaratnam (with him Aluvihare), for plaintiff, appellant.-British rule makes no distinction of caste. (Section 7 of the Charter.) A woman forming a temporary union and going out does not lose her rights (Menikhamy v. Appuhamy 1[5 Bal. Notes of Cases 38.]). The moment the father dies his unmarried daughter has a vested interest. It could be defeated only by her going out in diga. The reason is that a diga-married daughter gets a dowry as compensation. When she marries in binna her rights become perfected and crystallized (Siripaly v. Kirihamy[4 C. W. R. 187.]). If she is childless and subsequently marries in diga she forfeits her rights, but it does not follow that she had no rights. A conveyance by her before going out in diga would be valid. In this case there is no diga connection. The woman 's binna husband is still alive.

Counsel also cited Ranhamy v. Kirihamy 3[27 N. L. R. 52.], Niti Nighanduwa, pp. 19, 35, and 61; Armour 59 and 60 ; Sawer 3; Modder 255 and 256; and Hayley 376.

Weerasooria (with him E. B. Wikramanayake), for defendants respondents.-Bandi Etana is in fact living with Horatala with whom she eloped. It is not a casual connection such as is dealt with in 5 Bal. 38. Forfeiture does not depend upon the legality of the. connection (Komale v. Duraya 4[34 N. L. R. 379.]). There need not be a vaid marriage. What creates the forfeiture is the abandonment of the Mulgedera5[3 Bal. 122.]. In any case she would be penalized by forfeiture in favour of her child. (Hayley 372; Modder 471 to 477; Sawer 38.)

Cur. adv. vult.

December 20, 1933. GARVIN A.C.J.-

This is an appeal by the plaintiff whose action to vindicate title to an undivided one-sixth share of the land called Mailagahamulawatta was dismissed with costs. The land once belonged in equal shares to Kaurala and Kirihamy. This dispute does not touch the half share which belonged to Kaurala. The interests of Kirihamy with which alone we are concerned devolved at his death upon his four children-Ran Menike alias Bandi Etana, Sowwa, Dingiri Menike the first defendant, and Kiri Menike. Sowwa died intestate and without issue and his interests passed to his three sisters each of whom thereupon became entitled to one-sixth of the land. Kiri Menike sold her share to one Herathamy in 1916, and in 1918 the second defendant purchased it from Herathamy. The first and second defendants who are wife and husband thus became entitled to two-sixths, the remaining one-sixth being vested in Ran Menike alias Bandi Etana. On July 25, 1921, Ran Menike was married in binna to one Appuhamy and a son was born to them in 1922. The plaintiff claimed a one-sixth share by right of purchase from the said Bandi Etana upon a deed of conveyance No. 987 of April 29, 1924. The defendants sought to repel his claim on the p

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