Banda, K.A. V. Angurala Et Al.,

1922     Present: Bertram C.J.

K. A. BANDA, Appellant, and ANGURALA et al., Respondents.

S. C. 234-C. R. Kegalla, 16,342

Kandyan Law-Diga marriage-Forfeiture of rights-Waiver of forfeiture- Execution of series of deeds on footing of rights by other members of family-Re-acquisition.

Where, in Kandyan Law, a forfeiture has taken place by reason of a diga marriage, it is not connection with the mulgedera which restores the binna rights. It is a waiver of the forfeiture of which the connection with the mulgedera is evidence. The execution of a series of deeds for a number of years by other members of the family on the footing that a diga married lady still possessed rights would be sufficient evidence of such waiver.

APPEAL from a judgment of the Commissioner of Requests Kegalla.

E. W. Jayawardene, with L. H. de Alwis, for the appellant.

Allan Drieberg K.C., with C. Batuwantudawe, for the repondents.

February 1, 1922. BERTRAM C.J.-

The question to be decided in this case relates to the rights of inheritance of two daughters belonging to a Kandyan family who are married out in diga and claim, nevertheless, to possess binna rights. They are the daughters of one Punchi Appuhamy who died many years ago. His whole family consisted of two sons Mudiyanse, the 3rd defendant, Angurala, the 1st defendant, a third son who is dead, and of the two daughters in question, Dingiri Mahatmaya and Punchi Mahatmaya. As I have said, these daughters married out in diga. Dingiri Mahatmaya married one Dingiri Appuhamy, went to live with him in his village, Gasnawa, and is still there. The matrimonial history of the other daughter, Punchi Mahatmaya, is uncertain. Her original husband is said to be dead, and she is said to have married twice subsequently. Whether these marriages were registered does not appear, but there can be no question

that at her original marriage she left the mulgedera and went to live in that of her husband. The action is a partition action. Plaintiff, who originates it, is not a member of the family but is a cousin of Dingiri Mahatmaya's husband and has bought in various interests of members of the family.

A recital of these facts would seem to suggest conclusively that the partition must be conducted on the supposition that Dingiri Mahatmaya and Punchi Mahatmaya had lost all Tights of inheritance from their father, Punchi Appuhamy, unless it can be shown that in some way they regained binna rights, and the question for determination is whether they have done so. In all previous cases the question for the recovery of binna rights has always appeared to turn upon something done in con­nection with the mulgedera, such as a resumption of residence there; the cultivation of the paternal lands held in connection with it; the leaving of a child in the mulgedera or the maintenance of a close connection with the mulgedera. But in this case nothing of the sort is suggested. The claim to binna rights, however, in this case is based upon circumstances of a very significant and unequivocal character which I will proceed to examine.

Notwithstanding the diga marri

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