GUNASEELI WANASINGHE RAJAPAKSE & OTHERS VS. R.D. HARISHCHANDRA RAJAPAKSE & OTHERS - HON JANAK DE SILVA , J

• Jurisdiction: Sri Lanka
• Case Number: 2018SCOA601C1997Y
• Citation: 2018SCOA601C1997Y
• Date: 19 February 2018
• Court: Court of Appeal (Sri Lanka)
• Type of Document: Unreported judgment

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Gunaseeli Wanasinghe Rajapakse & Others

Vs.

R.D. Harishchandra Rajapakse & Others - Hon Janak De Silva , J

Case No. 601/97 (F)
D.C. Kurunegala Case No.2124/P

4. Gunaseeli Wanasinghe Rajapakse

5.Shreemathie Wanasinghe Rajapakse

6. Kalyani Wanasinghe Rajapakse

7. Ashoka Bandu Wanasinghe
Rajapakse (Deceased)

7A.Bharatha Sachintha Panduka
Rajapakse

8.Chandrasena Wanasinghe Rajapakse

9.Jayasheeli Wanasinghe Rajapakse

10. Mahindadasa Wanasinghe
Rajapakse (Deceased)

10A.Gunaseeli Wanasinghe Rajapakse

11.Indumathie Wanasinghe Rajapakse

12.Dharmarathne Wanasinghe
Rajapakse

13. Wanasinghe Devage Podinona
(Deceased)

13A.Gunaseeli Wanasinghe Rajapakse
All of Anhandiya

Defendants-Appellants

Hatana Devage Vimalawathie Rajapakse
Pataleeya, Anhandiya.

Plaintiff- Respondent

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1. D.B. Rajapakse, Anhandiya
(Deceased)

2. R.D. Harishchandra Rajapakse

3. R.D. Lakshman Rajapakse
Both of Ambakote

14.R.D. Punyasoma Rajapakse

15. R.D.Jayantha Rajapakse

16. R.D.Wasantha Rajapakse

17.R.D. Dammika Rajapakse

18. R.D.Gunawardena Rajapakse

19.R.D. Amitha Rajapakse

Defendants- Respondents

Before: M.M.A. Gaffoor J.
Janak De Silva J.

Counsel: K.G. Jinasena for 4th to 13th Defendants-Appellants
Asela Rekawa with Amila Perera and Dineshi Nanayakkara for Plaintiff-Respondent
Buddhika Serasinghe for 1A Defendant-Respondent

Written Submissions tendered on:4th to 13th Defendants-Appellants on 20th January 2014
Plaintiff-Respondent on 20th January 2015 and 15th December 2017

Argued on: 30th November 2017

Decided on: 19th February 2018

Janak De Silva J

The plaintiffs-respondent (Plaintiff) filed the above action in the District Court of Kurunegala seeking to partition the land called Aswadduma Kumbura situated at Madagama in the district of Kurunegala one paddy amunum sowing in extent.

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It is an admitted fact that Sawwani contracted a diga marriage. The word diga from di, root da, to give, is, according to some scholars, a derivative from dirga, long, the bride being sent away to a distance, that is to her husband's house. The conducting of a wife to, and the living in the husband's house or in any family residence of his, or if he does not own a house and lands, the taking her as his wife and the conducting away from her family to a place of lodging constitutes a diga marriage. The predominant idea is the departure or removal from the family or ancestral home.¹

The authorities unite in stating that under Kandyan Law when a woman (not being the only child) marries in diga she forfeits her rights to inherit any portion of her father's estate. This forfeiture is an incident of the daughter quitting the parental roof to enter another family.

The important issue for this Court to consider is the circumstances in which a diga married daughter can regain binna rights. The Plaintiff submits that since Sawwani returned to the mulgedera and lived there until her death and the fact that she was re-admitted to the paternus familia is itself proof that Sawwani re-acquired binna rights. However, the Appellants submit that it must also be shown that there was a waiver of the forfeiture by the family including the brothers.

The circumstances under which a diga married daughter can regain binna rights is not without ambiguities. Modder3 states that a diga married daughter will regain binna rights

(a) By being recalled by the father and re-married in binna;

(b) By her father, on her return to his house along with her husband, assigning to them and putting them in possession of a part of his house and a specific share of his lands;

(c) On her returning home along with her husband and attending on her father, and rendering him assistance until his death;

(d) On her coming back and attending on and assisting her father during his last illness, and the father on his deathbed expressing his will that she should have a share of his lands.

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1 Armour, Kandyan Law, p. 5
2 Punchi Menike v. Appuhamy et al (19 N.L.R. 353); Gunasena et al v. Ukku Menika et al (78 N.L.R. 529)
3 Modder's Kandyan Law, 2nd ed., 460

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Early decisions show that our Courts focused on whether the daughter who had forfeited her rights had regained such rights by maintaining a connection with the mulgedara.4 In Emi Nona et al v. Sumanapala et al⁵ Court held that evidence that a diga married daughter visited her parents from time to time and stayed for some time with them, that she went to her parent's house for confinement and attended on her father during his last illness is insufficient to establish a re-acquisition of binna rights.

However later cases have held that it must also be shown that there was a waiver of the diga married daughter's forfeiture by the father and brothers.6 In Dingiri Amma v. Ratnatilaka et al7it was held that a diga married daughter cannot re-acquire binna rights unless it is shown that she was not only received back at the mulgedera by her father and those who were entitled to the inheritance but also that they acquiesced in her re-acquiring binna rights and agreed to share the inheritance.

In Gunasena et al v. Ukku Menika et al8 after an exhaustive analysis of the authorities Tennakoon C.J. identified the test to be applied as follows:

"...it would appear that re-acquisition of binna rights by a daughter who has gone out in diga can be established by proving the exercise by such diga married...