Olorn^U Ham i'rlinnl 2Iibratjj The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924024955969 PERERA'S COLLECllON, SUGGESTION. "KANDYAN LAJ^." " In tlie iiotico wliieli Mpi'^^aTC'l "i tlio " l^imes" of tire twenty second instant under this lieiidiny, some injnstice was done to a work on " Kandyaii La\v" jinlili-fiied liy Ml-. Pcrcra in 1860. Tliis is certainly a very carefnlly written work ; and fur tlie last twenty years has been of constant use as a work of retei-eHee. Durinif that period, linwever, there liaY<' Ijeen very many irtiportaiit decisions, and a new edition enibodyino- tliese jnd,a;nient..s wonld secure a lai'i;"- and rMpid sah'. We iiwi- Mr. Perera an apolojj'y for statin-"', tliat tliei-e lias I.ei'ii no systematic attempt of a seientitic arrangemeid of " Kandyan Law," for in Mr. Pererii'.< clition of j4r)//("(/', we cei rainly have such a work. We trnst ■ tii.i* llie learned antlmr will increase the deljt due to iiim liy the i)rofessiou liv pulilishini;- another edition in which ihi' decisions of the last twenty yi'ars will lie endHjdiiMi." ->?/?"» Thiiex. Jiihi .'ll, IS.^^O. A COLLECTION OF SELECT DECISIONS OF THE SUMEME COLIIT OS POINTS OF KAnDYAN LAW ALPHABETICALLY ABRANGED UNDER THEIR VARIOUS HEADS WITH EXTRACTS FROM D'OYLY, SAWERS, MARSHALL; THOMSON, SOLOMONS; SERVICE TENURE COM^ MISSIONERS' REPORTS, And THE ORDINANCES AS AN APPENDIX TO t>EltEllA*S KEVtSEt) EDITION Oi' ARMOtflt (Which will shortly be in the press) BY JOSEPH MARTINUS PERERA SRIWAROANA PEOCTOB OF THE HON'bLE THE SUPRfiMl) COtIRT, HfcMSER OF THE GBTLON BRANCH OF THE ROYAL ASIATIC SOCIETY AND GROWN PROCTOR, KBGALLB. Vol. II " Saving to all classes of the people the Safety of their persons and property, with their civil rights and immunities, according to the Laws, Institutions and Customs established and in force amongst them." — ProclamaUon of the Ka/ndyan Convention. COLOMBO: PRINTED AT THE " CEYLON EXAMINER PRESS", COMPANY (LIMITED.) MSCCCXCII. m THIS VOLUME} IS BY PEEMISSION, RESPECTFULLY DEDICATED ■ ' ^ TO THE HONORABLE SIR B. L BUENSIDE, Ki. CHIEF JUSTICE OF THE ISLAND OF CEYLON. BY THE COMPILER. PREFACE. It was a loug-felt want, -v/Mch itas not been attempted to be suppli. ed, to liave in a concise form, decisions on important poiats of Kandtan Law, from the published authorities. The writer thought this^ a gaoi opportunity, whilst reprinting his Armour revised and corrected, to add a collection of select decisions of the Suprem^e Court on Kandyan Law, as an appendix to that volume ;; and, as it would be very convenient to have this collection' separately bound, it was considered desir'able to publish the same as a siecoud volume to his new edition of Armour. It has also been thoiJght eXpedieni; to supplement the decisions of the Supreme Court from the Legal Eeports and Circulars, with extracts from all the other principal works now extant on Kandyan Law, — Such as, D'Oyly, Sawere, -Marshall, Thomson, and Solomons, as well as from the Seroice and Temple Lands Commissioners' Reports, and the Ordi- nances. These have been arranged under alphabatical headings for conveni- ence of reference : thus, — Chapter I — On Adoption. Chapter II — On Deeds- and Transfers. Chapter III — On Marriage. Chapter IV — On Priests and Temples. Chapter Y — On Eajakaria, or Service Tenures. The Eevisexi Edition of Armour, and this Collection . of Decisions of the Supreme Court &c., will, it is hoped, meet with the approval of the Profession. J. M. P. Kegalla, October 6, 1892. ERRATA. Page XVI. Line 2 For PRIEST For Sawei" For Solomon 7 Line 5 For adpting .V2 Une 21 For field 5;) Lille 42 JPor eviiidenee 54 Line 37 i^Oi- speri.-il 62 £■!»? 37 t)2 Line :Vi 68 Lme 10 Fo) to 69 iine 7 163 to 171 Foi- Maiiurl 194 Line 33 For guuial l259 Line 7 For piriual -'63 iijig 27 For {lies ; 2t;3 L/jiP 28 For uotesa 307 Line 11 of the Note, after read PRIESTS. read Sawers (tliroughout. ) read Solomons ( throughout. > read adopting. read filed. read evidence. read special. dele vi}. add after non-suit — ■■ The iijllowii!,:^- is the judgment of the Court below." — read of. dele and. read Manual, read general. read spiritual. read these. read not. purposes insert of. S:--Lr Serious frrors of the Text aloue, have been noticed in tlie above ^- Table nt' Errata ;'' ordinary Printer's Errors have beonleft fortljp i-eader to corrert ■CONTENTS. CHAPTEK I. ON ADOPTION. S^oir. i. — From B'Oyly's Notes. Page. 1. Adopted child preferired to heir at law. ... ... 1 Sect. ~II. — Prom Sdwers" Digest. 1. What is necessary , to constitute adpption.— -2. Public declaration.— 3. Want of public declaration.— 4. Bights pf adopted children when patron has no ia- sue.-^5. When the patron has issue. — 6. Adoption re- xjuires public declaration. — 7. Deeds under adopti6n..., 2 Sect. TJI.^—From Marshall's Judgments. 1. What is necessary to constitute acloption.i^2, Pdb- lio declaration.— 3. Want of ptiblio declaration.— -4. Bights of adopted children when patron has no issue. •5. When the patron has issue:— -6. Adoption requires public declaration. — 7. Deeds under adoption 2^4 S«CT. IV. — From Thomson's Institutes. 1. What is necessary to constitute adoption.— 2. Public declaration.— 3. Want of public declaration. — 4. Bights of adopted children when patron has no issue.— 5. Where the patron has issue.- 6, Adoption requires public declaration. ... ,,, ... ... ... 4—6 Sect. V. — From Solomons' Manual. 1. Fre-valence of practice in Kandyan district of ad- option.— 2. No formalities necessary. — 3. Deed unne- cessary. — 4, Parties should be of same caste ; adoption should be public ; must be formally acknowledged.— 5. Bights of adopted children; adopted daughter will Page. . sucoeeded equally with daughter married out in Diga. . •—■6. When gift of lands to adopted child must be by deed. — 7. Adopted child preferred to deceased adop- tive fater'a widow. ... ••. ..I ••• ••• 6— »> Sect. VI. — From Morgan's Digest. 1, Adoption under Kandyan'law and Maritime law.— 2.- Verbal bequest of land to adopted /children. — 3- Adop- ted children joined as administrators f ••• 8- Sect. VII. — Ffom Austin's Appeal Reports. L. Adoption requires iio deed. — 2. Adoption re-- * quires proof.— 3. Adoption requires formal declaration. —4, Adoption requires public declaration and acknow- ledgment.— 6. Adoption' a'inixed question of law and fact.— 6, Adopted son entitled to administration join- ly with his adoptive father's widow. ... ..• ... 9—12: Sect. VIII. — From Seven &SM>el's Appeal Reports. 1. Declaration of adoption soffl'cfi'eHt. — 2. Claim un- der adoption ; adoption a mixed question of law and fact. —3. ' Woof of adoptionVhen inadmissible 12—145 Sect. IX.-^-Frow the Legal MiseeWany. 1. Cle&C'probf of adt>ption{'equiF6d^to succeed as an heir. — 2. Kandyan law of adoption ; adopting parent and adopted child mnat-be of thes'ame'«aste ; adoption^ must be openly avowed ... 14—15" Sect. X. — From Ofeii/ieT's Appeal Reports. _ 1. Adoption under'Kandyan-law.— 2.: Wtrat is ne- oessaary, and sufficient' to' constitute adoption. — 3. No special formalities prescribed by law 15 — 17r Sect. XI. — From Rama Nathan's Appeal Reports., 1. Adoption requires'Mear- proof. — 2. What is not sufficient to constitute adoption. -^3. Svidence :of- ad- option in K&Hidyaa-law.- 4. . Beqnireenents of cKaadyan law, as to adpption.. . .... ... ... .,, ... 17_23; Sect. XII. — From the Supreme Gowft-Qiriiidar, 1. Adoptive child's brother, when pretewied-tD adop- tive parent's heir at law ..^ .... ,,, 23—24, CHAPTER II, ON DEEDS AND TEANSFEES. Sect. I.—From^l)'Oyly's Notes. Page_ 1: Owner can alienate hisproperfey as -he pleases. — 2. . Conations of land may be made orally or in writing. — 3v Number of witnesses neoeasSiry, to a'deed. — 4. WHtten deed is neoeasary to disinherit an heir at law. — 5. When written deed not necessary. — 6; All deeds are revocable by the grantor. — -7. brantee when entitled to recom- pence if deed revoked.~8. Beason necessary for disin- heriting a legal heir.,._ 25 — 27; Sect. II. — From Sawers' ^Digest: 1. Imprecation necessary to make a deed valid. — 2. Grantor's signature not absolutely necessary to a deed. -^S, Deed when valid though signed on blank.— r4i. All > witnesses need not be present at execution. ^5., Deed when valid without.^ignAture. — 6. DeliveTy. — 7. _Ceye- mony of acceptance. — 8. Age at which one may execiita . a deed.— 9. Minor's act when valid.— 10. . Minor can cancel his deed.— 11. Deed invalid if fraudently exe- outed.— 12. Heir's right to cancel thesame. — 13. Same rules in case of females ,„ ... 27— 29# SlCT. III. — From Marshall's Judgments. . 1. The owner can dispose of his. property as he pleases. —2. This power when limited. — 3. The reason for dis- inheriting the legal heir. — 4. Uptive fordoing so. — 5. Legal heir cannot be disinherited without just cause.— 6. (Consent of heir necessary for-disinherjtjng hixa.-r-^r iPower of revoking.-r8. ; Grantee entitled to opmpensa- -tion. — 9. ' Unconditional dpflSitions of mpyeable property Jrxevooable. — 10. Of donations tJieilasti^pr^efSFped, ,,,_ 30—45. Sect.^ rv. — From TkomsoV''? JnstHy>tes.:^ . 1. Wfithexi A^P^s were nob common till reign of Err- . tisri. — 2. Imprecation pqpesjsaryto make deed valid. — . 3. Nature of Kandyan deeds.-7-4. Nuttjiier of witness- es n,ecessary to make ^i Kandyan-deed valid. -Tt5, Grant- or's signature not absolutely necessary; verbal declara- tion snfl5pjlpnt.'77&. Ceremony connectecL with-the deli- very and acceptance.- 7; Ceremony of {ickihg the hands. 8. ., AH, the. witnesses. to the dped need- jipt have been present at the .execution ■ ..• 45—43- xu. Page. Sect. V. — From Solomons' Manual, 1. Who may execute a deed. — 2. Age at which a youth can execute a deed. — 3. Bequieites of a valid deed.— '4. What is^ suffioieut to make a deed valid. — 5. Nature of deeds.— 6. Ways in which a deed becomes revocable. — 7. Donee when entitled to recompense. — 8. Donee when not entitled to recompense.— 9. What deeds are irrevocable ^^ — 5" Sect. V'l. — From MorgoM's Digest. 1. All deeds of gift revocable under Kandyan law.— ■2. Consent of son -not necessary to enable father to dis- pose of his property toobta'in assistance. — 3. Donations for assistance rendered also revocable subject to compen- sation.— ^4. When deed turns oat invalid, as an absolute transfer, transferee has a lienon the lands for expenses incurred.— 5. Disinheriting clause necessary when the scin is the only heir at law.— '6. Brother's gift to sister irrevbcable during her lite. — 7. Transfers of service . parveny lands before 1809 valid. .,, ... ... ••• -50— ^Sl Sect. VII. — From AustMs Appeal Reports. 1. Owner can -dispose of bis property as he pleases. —2, Ulause containing reason necessary to disinherit the legal heir. — 3. All deeds except to priests, whether conditional or unconditional, revocable.— 4. A deed of gift for a portion oftheestate, irrevocable.— 5. Deed of gift for the whole estate revocable.— 6. Deed containing clause debarring donor from revoking, irrevocable. — 7. Of donations the lastis preferred. — 8. Deed not invalid for want of attestation.— 9. Deed requires proof. — 10. Deed requires proof unless it comes from the proper cus- tody.— 11. If one acknowledges another's title by deed he cannot afterwards gainsay it. — 12. Deed undet' Pro- clamation must be signed, not subscribed.— i-13. Deed once executed though nominally must be held valid. — 14. Fersun executing a deed in favor of another cannot main- tain an action against a third in his own person. — 15. Prescription does not hold good in a revocable deed. — 16. Deed if revocable, grantee entitled to compensation. — 17. Deed for the whole land is valid for a part.— 18. Where deed is not clear, intention must be ascertained.^19. Acknowledgment of debt without deed before Notary and witnesses, sufficient. — 20. Proof of Sannas. ... 52 — 74 Sect. VHI. — From Beven and Siebel's Appeal Reports. 1. All deeds of gift for services rendered and to be rendered revocable.— 2. Deed of gift for a portion of tho Page, estate reserving a substantial share for himself and his heirs is irrevocable even without a clause of disinheri- sion. — 3. Donee's death during donor's lifetime, no reason for deed to become inoperative unless revoked. — 4. Deed though revoked by donor after donee's death, Vf hen irrevocable.— 5. Talpot deed when admits of proof, 74 — 81 Sect. IX. — From, the Legal Miscellany. 1. All deeds of gift except to priests, whether condi- tional or unconditional, revocable during the donor's life- time. — 2. Deed of gift from husband to wife for a moiety of his estate, irrevocable after his death. — 3. Clause of disinherision not indispensable where a portion of the es- tate is only gifted away. — 4. Deed of gift from husband to wife requires no clause of disinherison... ... ... 81 — 83 Sect. X. — From Lorenz's Appeal Reports. 1. A Kandyan deed of gift though containing a clause renouncing the i-ight of revocation, revocable. — %. A Kandyan deed of gift in consideration of past and future services, with a renunciation of the right of revocation, is irrevocable 83 — 87 Sect. XI. — From Bama Nathan's Appeal Reports. 1. In a Kandyan deed of gift the disinheriting clause is not absolutely necessary, if the intention of the donor is clear J — 2. Clause of disinherision is necessary to dis- inherit the legal heir 87 — 91 Sect. XII. — From the Supreme Court Circular. 1. Deed of gift in ooUsideration of past payment, or advance of money lent, irrevocable under Kandyan law. — 2. If deed revoked, donee entitled to compensation for improvements made by him on the land 91—102 Sect. XIII. — From Grenier's Appeal Eeports. 1. Deed of gift, containing no clause barring grantor from resumption of property, revocable ... ... ...103—10.5 CHAPTER III. ON MARRIAGE. Sect. l.—From D'Oyly's Notes. Page. 1. First feast, on the approval of the suit. — 2. Second feast, on the day the horoscopes of the bride and bride- groom are examined. — 3. Third feast, on the day the bridesronm's parents present the bride with a suit of apparel. — 4. Fourth feast, on the day the ceremony of the ligature takes place. — 5. Fifth feast, on the .seventh day after the nuptials, when the ceremony of bathing the bride and bridegroom takes place... ..'. ... ...106 — 108 Sect. II. — From Sawers' Digest. 1. Different kinds of marriage.— 2. Eequirements of a lawful marriage. — 3. Prohibited marriages. — 4. Com- munity of goods none. — 5. Marital power of the hus- band. — 6. Where the marital power of the husband is limited. — 7. Marital power of the wife. — 8. Dissolution of marriage. — 9. Husband, when heir to his wife's land- ed property, and when not. — 10. Parents and children. — H. Brothers and sisters. — 12. Nephews and nieces. — 13. Widows and widowers... ... ... ... ...108 — 120 Sect. III. — From Marshall's Judgments. 1. Husband and wife. — 2. Paients and childreo.— 3. Brothers and sisters. — 4. Nephews and nieces. — 5. Widows and widowers. ... ... ... „. ..,120 — 142 Skct. IV. — From Thomson's Institutes. 1. Marriage not valid unless registered, and parties are of age.— 2. Exception.— 3. Prohibited marriages.— 4. Requirements of a lawful marriage. — 6. Grounds of divorce, — 6. Children how ligitimated. — 7. Husband and wife. — 8. Parents and children,— 9. Brothc^rs and sisters. — 10. Nephews and nieces. — U. Widows and widowers. ... ... ... ... ... ... ...142 — 162 Skct. v. — From Solomons' Maiiii.al. 1. Inheritance to property rpgulatedby the natui'e of parents' ma?Tiage. — 2. Different kinds of marriage. 3. Marriage in Binna, — 4. Marriage in Diga. — 5. Requi- sites to marriage. — 6. Gorporial capacity. — 7. Prohibi- ted marriages.— S, Poligami, Poiiandry and concubin- IV'. rcuie. age. — 9. Illegal marriages. — 10. Gonsequences of mar- riage.— 11. Conimunit.y of goods none. — 12. Dissolu- tion of marriage. — 13. SeparHtiou anH maintenance. — 14. Separation a mensa. — 16. Death of wife. — 16. Death of husband.— 17. Kandyan marriage Ordinance. •^18. Disposition of property. ... ... ... ...162 — 172 SxcT. Tl.-^From Morgan's Digest. 1. Majority according to Kandyan law. — 2. Hnsliand and wife. — 3. Parents and children. — 4. FJiothors and sisters. — 5. Nephews and nieces. — 6. Widows and widowers. ... f.. ... ... ... ... ...172 — 176 Sect. VII. — From Austin's Appeal Reports. I. Husband and wife. — 2. Parents and children — 3. Brothers and sisters. — 4. Nephews and nieces. — 5. Widows and widowers. ... ... ... ... ...177 — 191i Sect. VIII, — From Seven and SieheVs Appeal Reports. 1. Husband and wife. — 2. Parents and children. — 3. Widows and widowers. ... ... ... ... ...195 — 199 Sect. IX. — From the Legal Miscellany. 1. Husband and wife. — 2- Parents and children.— 3. Widow and widowers... ... ... ... ... ...200 — 205 Sect. X. — From Lorenz's Appeal Reports. 1. Husband and wife. — 2. Parents and children... 205 — 209 Sect. "KL—^From Grenier's Appeal Reports. 1. Parents and children. — 2. Widowsand widowers. ..209— 211 Sect XII. — From Rama Nathan's Appeal Reports. 1. Husband and wife. — 2. Parents and children. — 3. Brothers and sisters. — 4. Widows and widowers. ...211—221 Sect. XIII. — From the Supreme Court Circular. 1. Husband and wife. — 2. Parents ami children, — 3. Widows and widowers 222 — 25'Oylfs Notes, p. i8. KANDYAN LAW OP ADOPTION Section 2. (From Sawer's Digest on Kandyan Law.) 1. What is necessary to constitute adoption. — 2. Public declaration. — 3. Want of public declaration. — 4. Rights of adopted children when patron has no issue. — 5. When patron has What is necessary to constitute adoption. Public declaration. Want o£ public de- claration. Rights of adopted children when patron has no issue. When pateon has issue. I. The adopted child must be of the same caste as the adopting parent, otherwise the adopted child cannot; inherit the hereditary property of the parent. — Saw : Dig; p- i6. ' a. A regular adoption must be publicly declared and acknowledged, and it must have been declared and generall}' understood that such child was to be an heir of adopting parent's estate — Jb- 3. A child being reared in a family, even by a near relative, is not to be construed into a regular adoption without its having been openly avowed and clearly understood that the child was adopted on purpose to inherit the properly. — lb. 4. A regularly adopted child, if the adopted parent has no issue of his or her own body, inherits the whole estate of the parent adopting him or her ; but should the adopting parent have issue, male or female, of his or her own body, in that case the adopted child will have but an inferior portion of the estate with the issue of the parent. — lb. 5. The Chiefs are not prepared to say what propor- tion such share should bear to the share of one of the issue, but they think it should be a foarth of the share which falls to such issue.— 74. What is necessary to constitute adoption. Public declaration, Section 3. (From Marshall's Judgments.) 1. What is necessary to constitute adoption. 2. Public declaration. — 3. Want of public declaration. — 4. Rights of adopted children when patron has no issue. 5. When the patron has issue. — 6. Adoption requires public declaration.— 7. Deeds under adoption. 1. The adopted child must be of the same caste as the adopting parent, otherwise, he or she cannot inherit the hereditary property of the adopting parent. Mar .- Judg.-p. iS3, § 126. 2. A regular adoption must be publicly declared FROM MA.'RSHA.LL S JUDGMENTS. and acknowledged, and it must have been declared and generally understood that such children are to be an heir of the adopting parent's estate.' — Vide sup : p. 117, where it is observed that declarations of deceased persons are often veiy material on (questions of adoption.— /i., § 127- 3, The fact of a child being reared in a family, even though a near relative, is not to he construed into a regular adoption, without its having been openly avowed, and clearly understood that the child was adopted on purpose to inheret the property. — lb. p ^^s, § ia8. 4. A regularly adopted child, if the adopting parent has no issue of his or her own body, inherits the whole estate of the person adopting him or hen — 16., pi, 352, § 145. j. But if the adopting parent have issue, male, or fetnale, of his or her body, the adopted child will, in that case, have bat an inferior portion of the estate with the issue of the parents. The Chiefs are not pre^ pared to say positively, what portion such share should bear to tlie share of each of the real issue, but they think it should be one-fourth of such share. ~Ib., p. 552, § laj. 6. On the principle above laid down, that an adoption should be publicly declared : when it was attempted to establish a deed, the proof of which was unsatisfactory, and the only consideration stated for the instrument was alleged adoption of the person in whose favour it purported to have been executed, of which adoption no evidence was offered, the S. C. observed that the adoption, if it had really taken place, would be a fact of sufficient notoriety to make it capable of very easy proof, and in the absence of such proof concurred with the Court below, in considering the deed not proved. No. 12 20 Euanwella, aist October, 1833 the adoption of a child, supposing the fact to be proved. — 11., p. 353^ § 129, 7. On the other hand, it may be established to form a good and valid consideration for an absolute gift or transfer, in favour of such adopted child : Thus, a plaintiff claimed certain land, by virue of a uterine gift fiom his uncle P. Ealle, which was proved, but the defendant claimed under a latter deed from the same person ; witnesses deposed that P. Ralle had first adopt- ed the plaintiff's younger brother, who died, upon which he asked the mother of the children to be allowed to adopt the plaintiff, that she at first objected to this second adoption on the ground that she had already parted, with one of her children ;. and then that P. Ealle Want of public de- claration. Rights of adopted children yrhen patron has no issue. When the patron has issue. Adoption requires public declaration, Deed under adop- tion, 4 KANDTAN LAW Or ADOPTION executed the deed fn favour of the Plaintiff, who lived with his uncle, till his death, and remained, in his house till after the funeral. The Court of Kurunegalla con- sidering the deed to the Plaintiff to be one of those gifts which, according to Eandyan Law, are revocable at pleasure [vide supra, par. 46, where the extent of his power of revocation is discussed] considered that the defendant's deed being of the latter date, ought to prevail. The Supreme Court, however, on appeal, took a different view of this part of the case. That Court observed that if the account given by the plaintiff's -witnesses, of the adoption of the plaintiff by P. Balle, and of the circumstances under whii:h the deed in his favour was given were believed, it would appear that it was only in consideration of this grant in favour of the plaintiff that his mother, who objected to the adoption on grounds so natural to a mother's objec- tion, would give her consent to the removal of the plaintiff from her house to that of P. Ralle ; that if this were so, a good and valid consideration had actually been given on behalf of the plaintiff by his mother, and that it would be difficult to imagine any cause which would have justified P. Balle in revoking his first grant, except undutiful or ungrateful conduct on the part of his adopted son. No. 1,672. Kurunegalla 31st October, 1833 — lb. p. 353, § 130. Section 4 (From Thomson's Institutes.) 1. What is necessary to constitute adoption.— 2. Public declaration. — 3. Want of public declaration. — 4. Rights of adopted children when patron has no issue. — 5. Where the patron has issue. — 6. Adoption requires public declaration. What is necessary j. The adopted child must be of the same caste toconstitute adoption. ^^ j^, adopting parent j otherwise he or she cannot inherit the hereditary property of the adopting parent.— Thorn. Inst., vol. II, p. 6_58. Public declaration. 2. A regular adoption must he publicly declared and acknowledged j * and it must have been declared and generally understood that such children are to be heirs of the adopting parent's estate. The declarations * But requires no deed. (13,071, D. C. Kandy; Austin, 51.) FEOII THOMSON S INSTITUTES. cf deceased persons are ofien very material on questions of adoption. * — lb., p. 658 3. The fact ot a child being reared in a family, even though a near relative, is not to be construed into a regular adoption, without its having been openly avowed and clearly understood that the child was adopted on purpose to inherit the property. — lb., p. 658. 4. A regularly adopted child, if the adopiing parent has no issue of his or her own body, inherits the whole estate of the person adopting him or her.+ — Ih., P- 657- ^. Put if the adopting parent have issue, male or female, of his or her body, the adopted child will in that case have but an inferior portion of the estate, with the issue of the parents. The chiefs did not say positively ■what proportion such share should bear to the share of each of the real issue ; but they think it should be one- fourth of such share t — Ii-,'P- 658. 6. On the principle above laid down, that an adop< lion should be publicly declared ; when it was attempted to establish a deed, the proof of which was unsatisfactory, and the only consideration stated for the instrument was the alleged adoption of the person in whose favour it purported to have been executed, of which adoption no evidence was offered, the Supreme Court observed that the adoption, if it had really taken place, would be a fact of sufficient notoriety to make it capable of very easy proof, and, in the absence of such proof, concurred with the Court below in considering the deed not prov- ed. No. r,2io, Ruanwelle, 21st October, 1833, the adoption of a child, supposing the fact to be proved.— lb., p. 6<,g. 7. On the other hand, it may be established to form a good and valid consideration for an absolute gift or transfer in favour of such adopted child. Thus, a plaintiff claimed certain land, by virtue of an uterine gift from his uncle, P. Ralle, which was proved ; but the defendant claimed under a later deed from the same person. Witnesses deposed that P. Ralle had first adopted the plaintiff's younger brother, who died, upon Want of public de- claration. Rights of adopted children when patron has no issue. Where the patron has issue. Adoption requires public declaration. Deed tiou. under adop- * Affirmed in Austin, pp. 52, 64, 74. What constitutes adoption is a mixed question of law and fact. (28,190, Z>. C. Kandy, Austin, 202.) + This does not apply to the Maritime Provinces. (240, D. C. Tangalle, 6 May, 1837 ; Morg. D. 153. In one case, one-third was decreed. (13,071 D. C, Kandy ; ,51.) 6 KANDTAN LAW OP ADOPTION which he asked the mother of the children to be allowed to adopt the plaintiff ; that she at first objected to this second adoption, on the ground that she had already parted with one of her children ; and then that P. Ralle executed the deed in favour ol the plaintiff, who lived with his uncle till his death, and remained in his house till after the funeral. The Coart of Kurunegalle, con^ sidering the deed to the plaintiff to be one of those gifts which, according to Kandyan Law, are revocable at pleasure, considered that the defendant's deed, being of. the later date, ought to prevail. The Supreme Courts however, on appeal, took a different view of this part of the case. That Court observed that if the accounii given by the plaintiff's witnesses of the adoption of the plaintiff by P. Ralle, and of the circumstances undep which the deed in his favour was given, were believed, it would appear that it was only in consideration of this grant in favour of the plaintiff that his mother, who ob. jected to the adoption on grounds so natural to a mother's objection, would give her consent to the removal of the plaintiff from her hoiise to that of P. Ralle J that if these were so, a good and valid considera^ tion had actually been given on behalf of the plaintiff by his mother, and that it would be difScult to imagine any cause which would have justified P. Ralle in revok- ing his first grant, except undutiful or ungrateful con- duct on the part of his adopted son. (1672 Kurunegalle^ 31st October, 1833,) — II'- PP- ^S9' <56o^ Section 5. fFrom, Solomon's Manual.) 1. Prevalence of practice in Kandyan district, of adoption,, — 2. No formalities necessary. — 3. Deed unnecessary. — 4. Par- ties should be of same caste ; adoption should be public ; must be formally acknowledged. — 5. Kights of adopted children^ Adopted daughter will succeeded equally with daughter married out in Diga. — 6. When gift of lands to adopted child must be by deed. — 7. Adopted child preferred to deceased adoptive father's widow. Prevalence of prac- i. The practice of adopting children seems to have tice of adoption. prevailed in the Kandyan provinces to a great extent, especially amongst those who possessed considerable landed property and had no relations of their own.— >So^. Man., p. 6, FKOH SOLOMON S MANUAL. 2. There were no prescribed formalities or cere" iBonies lo be gone through*> and it was therefore always difficult to prove the light of a persoQ claiming property by adoption. — lb., p. 6. 3. In adpting a child it was not necessary to ex- ■ecute a deed f, but certain general rules were 10 be observed before the right could be recognised. — lb p 6. 4. First, it was necessary that the person adopt- ing and the child adopted should be of the same caste. J The adoption should also be public and it must have been formally and openly declared and acknowledged §. A public declaration of the adoption seems to be indispensable, and without it, even permission to remain in the patron's house up to marriage there, and to manage the cultivation of his lands and to perform the Rajakariya service incidental thereto, would not confer upon a man the right of inheritance by adoption || —li. p. 6. 5. An adopted child inherits all the property of his patron if such patron has no children of his own ^ ; but if he has children and no relationship exists between the patron and the adopted child, then the latter will not inherit. **. Sawer in his Digest, however, says, that in such a case, the adopted child will be entitled only to a fourth part of the estate ft- — Jb- p. 6. 6. If the patron has children, a gift of land to the adopted child must be by deed J J. If a man died leav.. ing a daughter married in Diga and an a opied daughter, and the former remained with her father and rendered him assistance till his death, the property would be divided in equal shares between the two daughters •§§ — Jb. p. 6. J. A regularly adopted child will succeed to the deceased's estate in preference to h s widow, brother and sister or uncle or aunt ||||. An adopted son and an adopted daughter married in Binna inherit the property of the deceased in equal shares ^^. If an adopted child die without heirs, the landed property which he No formalities ne- cessary. Deed not necessary. Parties should be of the same caste. Adoption should be public. Must be acknow- ledged. Rights children. of adopted When gifts of land to adopted children should be by deed. Adopted child pre- ferred to adoptive fa- ther's widow. Perera's Armour, p. 38 §10. 13,071, Kandy, Austin, p. 51. Perera's Armour, p. 38. Austin, 52, 64, 74. Perera's Armour, p. 38. Ma/rshall, 353. Perera's Armmir, p. 38. 240 TangaMa, Morgan, 153, ** Perera's Armour, p. 39 § 13. t+ Sawer, 26. JJ Perera's Armour, p. 40 § 14. 1,026 Ratna- pura, Morgan, 153. §§ Perera's Armour, 39 S 13. nil Perera's Armour, 39 § 13. ITIT Perera's Armour, p. 40, KANDYAN LAW OF ADOPTION inherited from his patron will revert to such patron's heirs. If he died leaving heirs, they would inherit the property. *— /i p. 6 Section 6. (From Morgan's Digest.) 1. Adoption under Kandyan Law and Maritime Law. — 2. Verbal bequest of land to adopted children.— 3. Adopted chil- dren joined as administrators. Adoption under I. Though in the Kandyan Provinces, on failure Kandyan Law and of children by birth, an adoption entitles the adopted Maritime Law. child to the succession of the parents by adoption, to the exclusion of collaterals, it is otherwise in the Maritime Provinces, which are governed by the 1 aw of Holland — No. 240, D. C Tangalla (J). — Morg: Dig., p. 153 § 484. Verbal Bequest of 2. Where a party had transferred certain lands to Lands to adopted chil- his adopted children (plaintiffs) by a verbal bequest, "• which he had endeavoured to get reduced into writing, but died befnre it could be executed ; Held that he had a right by Kandyan Law and Custom to make such a grant ; but there being no writing to that efifect, no aciion could be maintained thereon. (See Procl. of October 1820.) A distinction was, however, drawn be- tween maintaining an action and defending it, and though the plaintiffs weie held not entitled to claim possession Heirs when estopped ot the lands under such a bequest, yet, if the other heirs from disputing. (defendants) who might have disputed the grant had actually acquiesced in it and granted possession ; then, the equity of the case being exactly the same whether the grant had been verbal or written, having once ful- filled their common ancestor and donor's pleasure, they were too late to recede from it. And the plaintiffs who had been proved to have been in possession of one of the lands for eight years, were held entitled to retain it, not^ withstanding its being included in a previous deed of gift to one of the defendants.— No. 1026, D. C Eatno' pura, {}).—Morg: Lig., p. 153 § 486. Adopted children 3. In a case from Katnapura, where the fact of the joined as administra- adoption of certain children had been proved to the to'^s- satisfaction of the Court ; Held that there was no good reason why the adopted sons should not be joined with the widow in the administration of the husband's estate. — No. 4, D. C Ralnapura, {M..)—Morg: Big., p. 73 § 3°4- * PenrcCs Armour, p, 41, feom austin s appbal reports, .9 Section 7. (From Austin's Appeal Reports.) 1. Adoption requires no deed; — 2. Adoption requires proof . — 3. Adoption requires formal declaration. — 4. Adoption requires public declaration and acknowledgment. — 5. Adoption a mixed question of law and fact. — 6. Adopted son entitled to admi- nistration jointly with his adoptive father's widow. I. South Court. No. 13071- Plaintiff (the ad Adoption requires mitfed only issue of the deceased Kiria) claims a certain °° deed, land by right of her said father. Defendant in her answer states, (and on the day of trial proved,) that she (defendant) was born in her uncle Kiria's house, and that because his daughter the plaintiff, who is married in deega, would render her father no assistance, he adopt- ed the defendant and had her married in Iteena in his own house. She therefore claims the land by right of adoption. The Court below Was of opinion that adop. tion was not proved, and further that defendant had no Deed to show that she was adopted. Judgment there.. lore for Plaintiff. In appeal reversed. " The adoption has been proved, and the adopted child (defendant) is eu titled to one. third of the inheritance. Decreed accord* ingly.'' Per Oliphant. January ai, 1841. — Austin's Rep. p 51. 1. South Court. No. 133 71. He/a! that the alleg' Adoption requires ed adoption has not been proved. " The laws of all proof- countries which recognize adoption require some formal!" ties, and it is laid down by Mr. Sawers, that a regular adoption must be publicly declared and acknowledged, and it must have been declared and generally understood that such child was to be an heir of the adopting parent's estate *— and he adds that, a child being reaied in a family even by a near relative, is not to be construed into a regular adoption without its having been open y avowed and clearly understood that the child wa^ adapted on pur- pose to inkeiit his property. "\ In appeal affirmed. Per Oliphant. February 5, i^^^.— Austin's Rep. ^ ^i. 3. South Court. No, IJ017. In this case adop. Adoption requires- tion was pleaded, but the Court was of opinion that it ioimal declaration, had not been proved- " The laws of all countries which recognize adoption, the Roman, French, and Hindoo laws, and the laws of the Tamuls in Jaffna require Saw. Dig. p 26. Saw. Dig. p 26, 10 KAMDyAN LAW OF ADOPTION. Adoption requires public declaratiou and acknowledgmeat. Adoption is a mixed question of Law and (act. certain formalities to be observed in so solemn an act as thit of adoption. The laws of Kandy also according to Mr. Sawers * require a formal declaration of the adoption, which in the present case has not been proved." In appeal affirmed. Ter Garr. October Q, ii^\.— Austin's Rep. p 6^.. 4. Soutk Court. No. 15769. Plaintiff as the widow of the decca<^ed proprietor sued the defendant, who was his brother and heir-at law, 10 recover posses* sion of her husband's lands. Intervenienc claimed by right of adoption. Defendant denied the adoption, and ■with regard to the widow admitted that she vvas entiled to maintenance from the produce of her husband's lands, but not to the absolute possession thereof. The Court below held that Intervenieni tailed to prove his adopiion. " The laws of all countries which recognize adoption require the act to be done publicly, and sometimes to be attended with ceriain solemnities. Mr. Sawers says, that according to Kandyan law, n regular adoption must he publicly declared and acknowledged, and it must have been declare ' and generally understood that such child was to be an heir of the adopting parent s estate f •'^nd agam, a child being reared in i^Jamily, even of a near relation, is not to be construed into a regular adoption without its having been openly avowed and clearly understood that the child was adopted on purpose to inherit the property. In this case there is no evicJence of any such public declara- tion or acknowledgment, —no calling together of any Headmen, nor even of relalicns or neighbours, but merely of vague expressions made use of in the presence of two or three casual visitors. It is considered and adjudged that the intervenient's claim be dismissed ) that the defendant as brother and ncSit of km to the deceased be eniitled to the lands mentioned in the Libel, subject, however, to the life'mterest of the plaintiff, who is entitled to possess the same and enjoy the produce thereof during her Hie time." In appeal affirmed. Per Stark. March 9, 1846 — Austin s Bep. p 74. j. No. 28190- Jn ihi:> aciiuu, which was for the recovery of Certain lands, the plaintiff filed an afiirma« tion of her own and two other parties, to the effect that defendant was not possessed of any property which would enable him to satisfy a judgment for the rents and profits, if the plaintiff should obtain such judjjment ; and that the defendant was committing waste and damage Saw. Dig. p 26. Saw. Dig. p 26. FEOM Atrsrm's ajpeai aEPoms. 11 to the pioperty of which the plaintiff was the rightful owner. Hereupon the Court granted a Sequestration, against which Order defendant appeaied,upon the grounds that it did not. appear upon oath ihat any amount was due to piaiBiiff by way of rents and profits } and that the affirmaiion of plaintiff was contradicted in all material points by the defendant. The Supreme Court set aside the Sequestration, without prejodice to the plaintiff applying for an Injunction. Collective. January i<, 1 856. When the case subsequently came on for trial, plaintiff was non-suited, as she had admitted that her daughter was adopted by the deceased, under whom she claimed in the Libel. In appeal set aside and case re* mained for further evidence and judgment de novo. " The Supreme Court is of opinion that plaintiff is not barred by her statement as to the adoption of her child, from showing her own right. What constitutes adoption is a mixed question of law and fact, and a party- may well be mistaken in making any assenion in rei^pect ol it. The District Court has found that the plaintiff has established her relationship to the deceased, and she would be entitled to recover against the defendant unless he shows a better right." Collective. March 2, i86o,— Austin's Rep. p aoi. . 6. No. 9564. In this case the Court below allow- Adopted son enti- ed the widow in preference to the nephew to trke out tied to administration Letters of AdmiiiisTaiion of the listate of the deceased. i?'"*Jy J^'','' his adop- , .. r J- . c tive lather s Widow, In ttie course or proceedings, mention was made of an adopted soa of the deceased (a minor), but nothing transpired in the judgment with regard to him- The nephew appealed, and in appeal, " Affirmed as to the Grant of administration to the wid iw, except that the said Grant shall be expressly limited to whilst she re- mains unmarried ; and a power shall be reserved therein for the son alleged to have been adopted by the deceased, being hereatier joined in such administration with the widow upon his attaining his majority, and satisfactorily proving to the Court that he was really the adopted son of the deceased. Upon invesiiga'ion, this Court does not consider there are any proofs of fraud in the omission to file the inveiitory of moveables, or in the production of the Will by the widow, to warrant its refusing to her Administration, — it appearing that ihe above omission in the Inventory was owing to her ignorance, and her having a customary title to the moveables ; and that the Court disallowed the Will, as the deceased was at that time a convict for Treason, and therefore unable to make any Will. In regard to the general right of the 12 KANDYAN LAW QV AHOPTION. widow to administration, this Court has upon previous instances granted joint administration to the widow and adopted son ; and it entertains no difficulty in saying that the widow is entitled to preference therein, both as regards general princii'les, and established practice, as well as under the Kandyan Law which gives the widow control over the Estaie whilst she remains unmarried. Consistently with this customary law, however, this Court considers that all such Grants to widows should be expressly limited to during the time that the widow remains unmarried." Per yeremie. Septembers, 1838.— Austin's Rep- p 233. Declaration of adop- tion sufScieut. Claim under adop- tion. Section 8. (From Beven & Siebel's Appeal Reports.) 1. Declaration of adoption suf&cient. — 2. Claim under adop- tion ; adoption a mixed question of Law and fact. — 3 proof of adoption when inadmissible. 1. No. S9605. In this case, the question for consideration was. whether a declaraiion of adoption in a deed not coniemporaneous with the act of adoption is sufficient, without other evidence, to prove adoption. The District Judge having held that it was, an appeal was taken, but his judsjment was afBrraed. — (23rd July, J 860). Bev. & Sieb. Btp- p 61. 2. No. 28.190. In this case the plaintiff, as maternal cousin and next of kin of Alteregama Basnaike Nilleme, (whose mother and plainiiff's mother were marine sisters) claimed certain lands, the paternal property of the Basnaike Hilleme. The defendant denying plain^ tiff's relationship asserted rinht to the lands as nephew and adopted son of the Nilleme, their fathers being brothers and joint owners. On the 6th January l8j7, plaintiff was non.suited on the ground that she failed to make out that she was next o> kin of the owner. This judgment was by consent set aside [i'i the Supreme Court and the case sent back for a new trial. In 1859 the case was heard a second time, when the plaintiff was Don. suited on the grounds that she was out of Court, havina admitted that her daughter had bpen adopted by the Basnaike Nillem-t, and that one Kotagaloluwe Un- nanse, whose maternal grand-mother was uierine sister to the deceased, was next of kin. This judgment was set aside in the following terms by the Supreme Court (and March, i860) .- " The Supreme Court is of opinion PEOM BEVEN & SlEBEIi's APPEAL REPORTTS. 13 that the plaintifl is not barred by her statement as to (he adopiion ot her child from shewing her own right. What constiluies adoption is a mixed question of law and fact, and a party may well be mistaken in making any a'-ser. lion in respect of it. The District Court has found that plain! iff has established her relationship to the deceased, and hhe would be entitled to recover as against the de- fendant, unless he shews a better right The priest refered to, Kotajuloluwe Unnanse, should have an oppor. tuniiy to intervene and esiablish his right, if he have any, to the estate, to enable him to do whicli a copv of this judgment should be served on him by the District Court. The case has been heard three times, and yet there is no judgment on the merits upon evidence. 1 he defendant might have preven ed this by entering into evidence and showing his right, and it is because he failed to do so that he is cast in the cost of the present appeal." 1 he Unnanse intervened as adopted son of deceased and issue ol his paternal cousin, and in i86i the case was reheard. 1 he District Ju'lge considered that the plaintiff had not made out her title; ihat taking defend, ant's evidence to be true, yet " I hat no act was done by Atteregama Basnaike Nilleme, which by Kandyan Lnw woulajustiiy the Court in tiolJing him to be the adopted son. There has been no publication such as the Kandyan Law requires, and no express recital in any deed." The Court found for imervenient, and as regards the objection that a priest cannot inherit, thus expressed itself: "A priest being a member of a family would appear not to have a right to inherit from the faiher, shime province of this island, yet having acquired a new domicile in Kiindy by long residence and abandonment of his domicile of origi the right of succession to his property should be reguUted by Kandy< an Law. (2) By Kandyan Law an adopted son was entitled to succeed to his adoptive father's property in preference to all his relatives in the ascending or descending line, except his issue. (3) Theintesiate having died with"Ul issue, the applicant, as his adopted son and heir.al-law, was entitled to administer his estate in prefeience to the second applicant who was only his nephew. (4) It was not necessaiy either by Kandyan Law or Legislative enactment that acoption with a view to inheiitance should be proved by deed or writen declaration ; all that the law required was that the io' tent ion should be proved by satisfactory evidence! whicti the first applicant was prepared to do- In appeal, the decision of the Court below was affirmed. (14th May 1862 )— Bet/. & Sieb. Rep. p i^. Section 9. (From the Legal Miscellany.) 1. Clear proof of adoption required to succeed as an heir. — 2. Kandyan Law of adoption ; adopting parent and adopted child must be of the same caste; adoptioa must be openly avowed. Clear proof of Adop- i. No. 3,569. D. C. Colombo — There are no pre- tion required to sue- scribed forms of adoption under ihe Kandyan Law, wliich ceed as an heir. are, nevertheless, very strict in requiring.clear proof of the adoption being openly declared, and recognized in such a manner as can leave no doubt of the adopting party's inteniion that the child adopted should thereby succeed as an heir to the estate of tlie adopting parent. Thus, it has been held, though a child may have been reared in a family, and contracted marriage, and dwelt with his wife in the house of his patron, and cultivated his land-, yet such circumstances alone would not be construed into a regular adoption, unless it could be also shewn that by agreement with the natural parents of the 'lEOM THE LBGA.L MISSCBLLA.NT. 15 child on its removal, or by subsequent declaralions and acts of the adopting party, a clear imention was uiani. fested by him to adopt the child as his own son, and to make him an heir to his estate. January i\th, 184.3. (C).-Leg Mis. p. 347. , tr ., T ». No. 3,5<59 D. C. Fatnapura. {See ante 14'A Kandyan Law of January, 8+3). The I0c.1l law applicable to this case adoption. IS contained in the following words of Mr. Sawer in his Kauuyan Laws p. 26. ■' A regular adoption must be publicly declared and acknowledged, and it must have been declared and genei- ally understood that such child was to be an heir of the adopting parent's esiate." " The adopted child must be of the same caste as Adopting p a r e n t the adi'pting parent, otherwise the adopted child cannot and adopted child inherit the hereditary property of the parent." ">"^* ^^ °^ the same ^ C3iS tj6. " A child being reared in a fami'y, evt-n if a near Adoption must be relative, is not to be construed into a res^ular adopiion, openly avowed, without iis having been openly avowed and clear:y un- derstood that the child was adopted on puipo'-e to inherit the ptopeny." Feiruary j^th, 1646 (S). — Leg. Mis- p 4{-i i. Section 10. (From Grenier's Appeal Reports.) 1. Adoption under Kandyan Law. — 2. What is necessary and sufficient to coustitdte adoption. — 3. No special formalities prescribed by law. 1. 1). G Kandy, ^^I'iog. The following judgment of the leariied Disirici Judj;e (Cay/ey) explains ihe case: — The only question in ihis cdSs is, wheiher the isl Adoption under defendant had proved she was adopted by the deceased Kandyan Law. Basnaike Nillemey, through whom both parlies claim the property in dispute. I have no reason 10 doubt the evidence of Nugnwella Batemahetineya, corroborated as it is to a certain extent by the Dewe Nilleme ; but the qaestion still remains whether this evidence is sutiicient to prove a legal adopdon. It is proved that the Bas. naike Nilletney had no children of his own, that the ist defendant, his niece, lived with him from childhood, that he procured both her first and second husbands fur her, and that when her hand was solicited by Nuguwella tor his son, the Basnaike Nillemey stated that he had adopt- ed her, that he wished her to inherit his lands, and that accordingly he objected to her being married in Deega. 16 KANJJYAN LAW OF ADOPTION. What is necessary and sufficient to con- stitute adoption. It is also stated that the ist defendant was always recognized by the family as the adopted daughter p£ the Basnaike Nillemey. 2- The requisites of a valid adoption appear to me to be correctly summarized in Mr. Solomons' " Manual of Kandyan Law,' (p. 6), and it appears from authoriiies there cited, that to constitute a valid adoption, no parti., cular lormalities or ceremonies are prescribed, but it is iieces ary that the person adopting, and the child adopt- ed should be of the same caste, and ihat the adoption should be public and formally and openly declared and acknowledged. The adaption here was openly declared and acknowledoed, but the question is whether the declaration was sufficirntly formal and public. In 1^,769, D C. Kandy. (Austin p- 74) it was laid down that the adoption should be opeily avowed : and that it should be clearly understood that the child was adopted oq purpose to inherit the adoptive parent's properly. This Seems to have been the case in the present instance. But the judgment of the Court below in the case, 15,769, held, that there was no evidence of any "public declara- tion or acknowelgment — no calling together of any Headmen, nor even relations or neighbours, but merely of vague expressions oiade use of in the presence ot two or three casual visitors;" and on this ground it was held that th*' adoption was not proved. This decision does not go so far as to determine that there must be evidence of a calling together of Headmen, or of relations and neighbours in order to prove a valid adoption. This would be opposed to the established principle that no special formalities ara prescribed- It merely shows that some kind of public declaration and acknowledgment is required and instances of calling together of Headmen or relations as a .vuitable mode of effecting such publicity. In 1 he prest nl case, there were no mere vague expres- sions made use of by the adopting parent in the presence of two or three casual visitors as in the case 15,769; but, when the hand of the isi de'endaol was formally sought in marriage from the Basnaike Nillemey, he declined the alliance on the ground that he had adopted her, that be wished her to live wiih him and inherit his property, and consequently that he objected to any Deega marriage for his niece. I'his was certain'y a formal declara:iun of the adoption, though it is not proved that it was made after a calling together of Headmen or relations (though probably it was made in the presence of many of the latter), for the tst defendant was always recognized by the family as the Basnaike Nillemey's adopted daughter. PROM bamajjathan's appeal repokts. 17 3. There being no special formalities to constitute No special formali- a valid adoption prescribed by the law, some kind of ties prescribed by law. public declaration only being required, and as it appears that the Basnaike Nillemey himself always considered the 1st defendant to have been adopted by him, and stated such to be the case at an important family discussion, and that the relatives always recognized the ist defend- ant as his adopted daughter : I think that it may be presumed that the adoption was sufficiently declared and made public to satisfy the requirements of the Kandyan Law, with which these people must be supposed to have been acquainted. It is also to be observed that the adoption was in every way natural and suitable. The ist defendant was niece of the Basnaike Nillemey, was brought up by him in his house, was twice given in marriage by him i and the Basnaike Nillemey himself was childless. Judgment will be given for the ist defendant with costs. The Kurunegala case, for the production of which this judgment was postponed, is not forthcoming. In appeal, (Kelly for appellant, Ferdinands for res- pondent) per Creasy, 0. J. — " Affirmed for the reason given in the judgment by the Court below."'— 'Gren -. Rep: 18^3. Part iii. pp. 117— 119. Section 11. (From RamaN'athan's Appeal Eeports.) 1. Adoption requires clear proof. — 2. What is not sufficient to constitute adoption. — 3. Evidence of adoption in Kandyan Law. — 4. Kequirements of Kandyan Law as to adoption, \^' '^iTJ"' \ ^'dd'^ V. Balia. No. 3,569. j I. Carr, J„— Remanded for the case to be heard Adoption requires de novo. The defendant has not satisfactorily made out ^"^ proof, his case, as the facts deposed to by his witnesses are not conclusive. For instance, though the defendant and the deceased respectively addressing each other as " father" and " son'' is one of the strongest facts proved, yet such expressions amongst Kandyans of the same caste are not uncommon between any old and young persons living together, or intimately known to each other. a. There are no prescribed forms of adoption , What is not suffl- under the Kandyan Law, which are, nevertheless, very c^e'^ttocongtituta strict in requiring clear proof of the adoption being * "^ '''°' 18 "ka.nbta'n ti* or ABowton. openly declared and recognized in such a manner as can leave no doubt of the adopting party's intention, that the child adopted should thereby succeed as an heir to the estate of the adopting parent. Thus, it has been held, though a child may have been reared in a family, and contracted marriage, and dwelt with his wife in the house of his patron, and culiivaied his lat)d^> yet such circumstarrces alone would not be construed into a regular adoption, unless it could be also shown ihat, by agreement with the natural parents of the child on its removal, or by subsr-quent declarations and acts of the adopting party, a clear intention was roatiilested by hitn to adopt the child as his own son, and lo make him an heir to his estate. — EamaNath Bep: 1843— 55.P. '• Evidence of adop- 3. Plaintiff, as adopted ^on of Pina Veda and tion ia KandyanLaw. Lap.-e, deceased, claimed certain lands which defendants kept possessif n of, as (he only heirs and oeKt of kin of the said Pina Veda and Lapee. A third parly also inteivened in the case, claiming the lands in question as another of the adopted son of the said deceased. The plaintiff in support of his allegation adduced oral evidence and put in evidence deed A and case No. 694 ol the District Court of Ratnapura, in which the supposed adoptive parents had admitted that they had a ' son named Unga' (or the plainliff). These circum.. stances, it was contended, added to the fact that the deceased had no children, and that the plainiiffwas their nephew, proved the adoption. But the learned D. J. held as follows : — The evidence has not established the alleged adop. tion of either plaintiff or intervenient. It is, to say the least, weak and insufficient to constitute adoption. The deed letter A, which is virtually a deed for assistance, speaks of plaintiff, not as adopted, but as if adopted. Hence the reason for the d«ed, a fact at once shewing that there could have been no real adoption, but only a mere bringing up (but not from childhood, which is important) o( the plaintiff, and theretore also the allu- sion to him in the former case of Pina or Lapee as their son. ' ase dismi'-sed with cos's. On appeal, affirmed, (Grenier for respondent) D. C. Kegalla, 2g6^,—RamaNalh Rep. 1877. P- 59- August 2i.,t, 1877. —Present, j_ias, J : — Require-mentsof ^: Th^ P'^intiffs. as nev^^ew and grand-nephew of Eandyan Law as to °"^ Dingin Appoo, who had died intestate in or about adoption, the year i87o, clai.Tied to be heirs at Law by adoption of the deceased. The defendanti who was administrator lEOM BAMANAIHAS'S APPBAX REPOETS. 19^ of the intestate, denied the alleged adoption, and set up title by inheritance in himself and his sister Punchy JVlenik^, as the children of the deceased by an associated marriage. On the issues thus raised, the parties pro- ceeded to trial, and the learned District Judge (Lawrie) upheld the plaintiffs' right in the following judgment, 'wbich explains the facts of the case :— " The defeudant is the administrator of the estate of Dingiri Appoo, and by the decision of the Supreme Court, and Pebtuaiy, 1875, it has bean expressly deter* mined that by a grant of administration to him, the question of who are the heirs is left open, because that grant was come to summarily for the purposes of the administration and cannot prevent the parties from proving by a separate suit the adoption or associated mariage upon which they rely. Accordingly the two relaiioas of the deceased who claim as his adopted sons raised this action in iVIarch 1875 against the aJministra* tor, calling on him to transfer to them the estate in his hands. The administrator in his answer admits that the piaintill's wero related to the deceased, but denied tha,t they were adopted by him, and also denied that they were entitled to any share of the estate because they were descended from the deceased s sister, who had been married out in Deega. " The defeudant further averred that he and his sister are the children of the dec^asedv the issue of a marriage in which he was one of the associated husbands. During the pendency of the suit two or three petitions to intervene have been presented. The rights of those intervenients may be reserved. The defendant did not call any evidence either to rebut the proof led by the plaintiSs, or to substantiate his own averments. He satiiified hiaiself with maintaining that the plain- tifis had not made out their case,_ and that their aciion Bhuuld be dismissed. From time to time hopes were entertained that the parties might settle and consent to a division of the estaie- I may say that I personally was anxious that they should do so and so end the strife, be., cause I am well acquainted with the second plaintiff and also with the son.iu-law of Punchy Menica. the defendant's sister. Both, of them were often at my house, and made silver things for me, and 1 feel that it will be difficult for either of them to understand that my decision has nothing to do with my preference for the one over the other. Besides, I think that this is a case of some difficulty and novelty which is likely to be takea to the higher Court., and I should be sorry io sssi 20 RAUDYAlf LiW OF ADOPTION. the estate much diminished by a protracted law-sait. For these reasons I had hoped that I would be spared what I feel to be the rather disagreeable duty of deciding this case, and the estate spared further loss by an ami. cable arrangement. But this has not been found practi- cable. The evedence, particularly that of the second plaintiff, was given so moderately, and was so free from exaggeration, that I believe it to be true. Not only did the evidence strike me as true, but as the defendant did not impugn or attempt to contradict i^ I am bound to acceJpt it and to give it judgment for the plaiatiSs unless it is insufficient in law. Of course, only the facts which I mnst accept, not the concIusioDS which the plaintiffs and the witnesses draw from these facts. I thidk, to begin with, that it is proved that Dingiri Appoo was childless. In the testamentary case, I held that the defendant was not his son, and I have no evidence before me now that he was. It is proved thai the first plains tiff is his nephew, that his mother died in Dingiri Ap- poo's house, when the first plaintiff was very young, and that from that time he was brought up by his uncle ; that he was fed and taught by him, and that his uncle got him a wife whom he conducted to the house, and that he lived with his uncle until his death. It is also proved that the second plaintiff was a grand nephew of Dingiri Appoo's and was born in his house ; that when his parents went to Hewaheta he was left behind and was brought up and sent to a Pansala and taught, silver- smith's work by the deceased Dingiri Appoo, and that he lived with him until his death. It is further proved that Dingiri Appoo's widow regarded the second plaintiff as her adopted son and granted a deed to him in which she so styles him. A witness drew from these (acts a conclusion that the plaintiffs were adopted by Dingiri Appoo. But the defendant says these are not sufficient, because it has not been proved that Dingiri Appoo ever publicly declared the plaintiffs to be his adopted sons. Now, it is necessary to determine whether a public ceremony or declaration is necessary to cons'i. tute adoption, or whether it is only proof of it. If the tie of adoption, like that of marriage, can only be formed by a formal declaration, it must be conceded that the plaintiffs have not proved they were adopted j but if, on the other hand, a public declaration is only proof of adoption, then it becomes a question whether that is the only proof or whether other evidence may not be re. ceived. It is, I think, quite certain that the public de- claration does not constitute adoption. There have been FROM KiMAKATHAN's APPEAL REPORTS. 21 several cases in which the declaration which has been held sufBci-nt was made for some other purposes. For instance, in the case 53309, the declaration that the girl had been adopted was made as a reason why she should rot contract a certain marriage. It was not said that that statement created a tie which did not exist before. The girl had been adopted long before, but no circum- stances had occurred which made it suitable or necessary that the fact should be publicly announced beyond the family-circle. There have been cases in which the statement in a deed that the grantee is the adopted son of the grantor had been held sufficient to prove adoption, though T imagine it could not be contended that it created a reIation.ship. In Armour (Perera's edition, page 32) it is laid down that there are no prescribed forms and ceremonies of affiliation, and therefore it is not practicable to ascertain in every instance whether an orphan child or a child who was removed from the parent's care in its infancy, and who was educated by another person, was merely a foster child or protege of that person, or whether the said chi d was adopted and affiliated by that person. From the cases I hive spoken of, and from this' and other passages. 1 think it is quite certain that adoption can be constituted not only with- out a ceremony, but also without any words addressed by the adopter to the adopted child. If it is sufS.. cient that the adopter make the declaration to others, and that he need not make it in pre- sence of or to the child, then, I think, it follows that the declaration is merely proof and not the con- stitution of the adoption. Armour (Perera's edition, page 38) goes on to say, however, this much is certain, that unless the child and the person who had brought up and educated that child were ol the same caste, and unless that person had publicly declared that he adopted that child and resolved that the said child should be an heir of his estate, the child will not be recognized as adopted and affiliated- I think this law is somewhat antiquated, for though the first of these conditions, sameness of caste, is present in this case (as I had occasion to say in another case 63038), it is a condition to which no effect can be given in our Courts If tliere be proof that a petsoa intended to adopt, and did adopt, a child of a different caste than his own, no Courts would now step in to insist on a distinction of caste which the adopter had himself ignored. Then as to the publicity of the declaration, can it be maintained that a public declaration is necessary, after the decision of the Supreme 22 XAKDYAN LAW Of ADOPTION. Coart in the cases 53309 and 55778- In the one case, the declaration was only a conversation between the adopter and another Chief whu had come to solicit the child as wife for his son-. In the other case, the deck ration was made when giving instructions to draw up a deed of gift. I think these cases warrant the conclusion that a. public declaiation is not necessary. But is it the Kandyan Law that there must be even a private decla^ ration by the adopter ?- I shall assiune for a moment that it is,, and I find in this case the uncontradicted evidence of the second plaintiff, that the deceased called biai soa and that he told him to take care of the lands, and that there is no one else who will get them. I aiu entitled to hold it proved, because,, as I said, there is no contradiction of this, that the conduct of the deceased to the plaintiffs was a continual declaration by acts, though not by words, that they were his adopted sons and heirs. Il is consistent with Kandyan Law to infer adoption from facts and circumstances,, apart from decla.* rations by the adopter. The authority for that is the izth section of Armour (Perera's edition, page 39), where it is said that certain given facts will warrant a conclusioa that the deceased had decidedly adopted his daughter-in-law. These facts did not include a declara- tion by the adopter, but describe as nearly as may be the position of the first plaintiff, for he was married and settled in the deceased's house and rendered him asis- tance till he died. The ■ deceased Dingiri Appoo was held a childl''ss man, and if he was childless,, there is no presutnpiioii against the adoption averred by the plaintiffs. Un the contrary, It is highly unlikely that be intended his lands and goods to be divided and scattered among a numerous clan of relations there is in the Kandyan Districts- I think a presumption in favour of adoption is, when a childless man or woman has reared and maintained one or more of their relations in his house. Many people have a dread of speaking about their death and what shall be done with their property after it- Dingiri Appu may have been such a man, bat I have little doubt that he felc satisfied that his property would go to the two plaintiffs who had lived from infancy under his care and who owed everything to him. I admit that this decision goes further than any other case I know, in adnii^ting general proof of adoption, but I think it is founded on what may be fairly inferred froiu the recent authorities that it is not inconsistent with Kandyan Law or feeling, and it is in accordance with the justice of the case. I mean by that that hy it the IROM THE SUPKEME C0T3EI CIRCTJLAK. 23 estate of the deceased goes to those whom he intended should get it. Judgment for the plaintiffs for the estate of the deceased with costs. On appeal. Grenier for the defendant and appellant, argued on the tacts and cited Austin. j2, 64, 74, Solo« njons, 6, Marshall, 354, Sawyer, 46, I>. C. Kandy, 28, 190, Appendix to Sawyer s Digest, 6i, B- G. Kegalla, 26 j^, Civ. Min March 6, 1877. Ferdinands, D Q. A. (VanLangenberg with him) for plaintitt's and respondents, replied on the lacts and cited Marshall, 347, Armour, 135,* 3, Grenier D. tJ. p. 117. Cur adv vult. And this day Bias, y., delivered the judgraeuL of the Supreme Court as lollows : — Set aside and plaintiffs non-suited with costs. The question in this case is whether the plaintiffs are the adopted children of one Dingiri Appu. The evidence is very meagre and does nut establish the requirements of the Kandyan Law as to adoption. O. C. Kandy 64,^36. —hamaNath. Eep. 1877, pp. aji — 255. (From the Supreme Gowrt Circular.) Section 12. Adopted child's brother when preferred to adoptive parent's heir at law. One W. Hamy adopted one Appu, and in 1856, Adopted child's conveyed the land in question to Appu Appu dji-d brother when prefer- leaviug no issue. After Appu's death the land passed redtoadoptiveparent's into the possession of Appu's widow (first defendant), heu: at law. and second defendant who claimed to be an adopted child of Aappu. Plainuff, as heir^at-Iaw of W. Hami, brought eject- ment, against defendants for the land. Plaintiff denied that second defendant had been adopted by Appu, and contended that first defendant had forfeited all right to enjoyment of the land by a diga mariage. At ihe trial, plaintiff admitted the existence of a brolber of Appu's, named Funchirala. The District Judge found upon the evidence that second defendant had not been adopted by Appu, and that first defendant had, after Appu's death, married in diga. On these findings the District Judge gave plaintiff judgment for the land. * P^r&roi!$ edition, p. 40. 24 KASDTAH LAW OT ADOPTIOS Defendants appealed. Grenier, lor plaintiff, respondent. Un the i6 November, the following judgment was delivered : — Curia, per Cayley, C. J. — PlaintifiF claims certaia land as the only son and heir of one W. Hamy. De- fendants admit that the land belonged originally to W Hamyi but allege that by a deed of gift dated loth. December, 1856, he conveyed the land to his adopted SOD, M. Appu, who held the land until his death, about ten years ago, when it devolved upon his widow, the firsi defendant, and his adopted son, the second defen< dant. This deed of gift was not disputed, and the adoption of M. Appu by Hamy is admitted by the plaintiff. The District Judge finds that lirst defendant is the widow of M. Appu, but is not sa'isfitd that the second defendant was adopted by M. Appu ; and has according- ly given judgment for the plaintiff as the hier of Appu's adoptive parent, W. Hamy. It appears, however, that Appu lett a brother l:'unchirala, and it is only when an intestate person leaves no near relations that the property, which he acquired from his adoptive parent, reverts to the adoptive parent's heirs. The passage in Perera's Armour relating to this subject (p. 41) is as follows: — *' A person having died intestate leaving no issue, the landed property, which he or she had by gift or by inheritance from an adoptive parent, will revert to that adoptive parent's heirs or descendants, in case the deceas. ed left not any near relatives. But if the deceased's father or mother, bi other or sister, or other issue sur- vived, in such case the said property will devolve to deceased's next of kin, and will not revert to the heirs or descendants of the deceased's adoptive parent." [cjoloraon's Kandyan Law, page J, will be found an authority to the same effect.]* The plaintiff, therefore, having disclosed no title at all, cannot recover in ejectment against the defendants who are in possession, however weak their title may be, and the plaintiff's actiun must accordingly be dismissed- In the above view of the case it beoo.i es unnecessary to consider the question of the second defendant's alleged adoption or ot the forleitureof the first defendant's right by her Diga marriage. Judgment set aside, and plaintiff's action dismissed with costs. — Sup. Court, Cir. 1881, pp. 19-ao. * See ante pp. 6, 7. CHAPTER II. ON DEEDS AND TRANSFERS. Section 1. (From, B'Oyly's Notes on Kandyan Law.) 1 Owner can alienate his property as he pleases. — 2. Dona- tions of land may be made orally or in writing. — 3. Number of witnesses necessary to a deed. — 4. Written deed is necessary to disinherit an heir at law. — 5. When written deed not necessary. — 6. All deeds are revocable by the grantor. — 7. Grantee when entitled to recompence if deed revoked. — 8. Reason necessary for disinheriting a legal heir. I. The proprietor has full power to dispose of his whole landed or other property to his adopted son, or even to a stranger, in exclusion of his own children, but rarely does so without just caase.—D'Oyly's Notes, p. 6. a. Donations of land are made either by oral de- claration or by writing ; and oral gifts, if clearly and satisfactorily proved, are held to be of equal validity with written ones.*— Ibid, p. 6. 3. Deeds are usually attested by five witnesses, and frequently by more, if the property transferred be considerable ; but three at the least are deemed requi-. site, otherwise the deed, though not at once set aside, is held questionable, and satisfactory explanation is re^ quired why more were not called. The names of wit- nesses absent at the time of writing are sometimes inserted in the deed, and it is considered sufficient if it be read to them, shortly after, in presence of the par- ties, or of him who executes it. — Ibid, p. 8. 4. It has been alleged, (I uaderstand), by some Chiefs that a written deed is absolutely necessary to entitle the adopted son or stranger, and to disinherit the legal heirs, but I conceive, from the decisions which have taken place establishing the validity of verbal gifts in favour of the wife or one of the children, that the opinion referred rather to the necessity of full and in- controvertible proof of the fact, which after lapse of time would otherwise be uncertain and difficult, than to Owner can alienate his property as he pleases. Donations of land may be made orally or in writing. Number of witness- es necessary to a deed. Written deed is ne- cessary to disinherit an heir at law. * See Proc. 28 Oct. 1820, repealed by Ord. 7 of 1834, which by Ord, 7 of 1840. KANDYA.N LAW OF DEEDS AND TEANSFEES. When written deed not necessary. All deeds are revo- cable by the grantor. Grantee when en- titled to recompense if deed revoked. any virtue in the writing ; for upon minute enquiry I find it generally adn3itted, that such an oral donation to any one proved recently after it took place by respectable and undotabfed witnesses nrust be held valid. -"/to, p. 6. J. When a man's last hour approaches, and for want of a writer the time will admit of doing no more, he sometimes writes a single letter, or makes a scratch on a blank oia, at the same time verbally declaring his will. In such case tb^ deed may be written in his name immediately aftfer his decease, and the names of those who were present at the transaetioa being subi'oined as witnesses, it is held to be of equal validity.— Jiit/, p. 8» 6. Transfers, donations, or bequests of land are revocahb at pleasui-e during the life of the proprietor who alienates it. It is helci that any land proprietor who has even definitely sold his land, may redeem it at any time during his life, paying the amount which he has r€fcd»ed, and the value of any improvement, biht his heirs are excluded from this liberty. The reason of this custom is the respect aftd attachment which belongs to ancient family-rabk and family-estate, and the impor- tance asctibed to the preservation, as it is called, of Name Estnte — Nama Gdma, the name by which every person of rsak is distinguished and generally known, being that of the village in which his name or pt-incipal estates are sitnated, as " Peleme Talawe Adigars," from bis ancient village in Yatinuwara ; " Eyhelepola Adigar", and " Ratwatte Dissavfe" from their respective villages in Matalle ; " MoUegode Adigar" from his village in the Four Korles. — Ihid, p. 6. J. When a landed proprietor is become old and infirm and has no near relation, or none who look after him, it is a common practice for him to transfer his lands to another, frequently a relation, on condition of receiving support and assistance till death. In this case the latter sends one or more servants to wait upon and administer to him, and supplies provisions and medicine according to his ability, the condition of the party, and the value t>i the land. If the owner (for he must be called so still) be dissatisfied with the assistance afforded, he can at any time revoke the gift, as well by virtue of the rule above stated, as because it is conditional, and make over his property to another person, who there- upon reimburses the acceptor for expenses incurred. This change of possession is not unfrequent, and there httve been instances of five or six successive resumptions and new assignments by the same capricious proprietor. It toUbws from the foiegoing that the last bequest or PROM SAWEE'S MGEST on HANDYAN ItllM. 27 transfer of property supersedes all which may have preceded- A U deeds excated in the Kandyan country (except occasionally amongst strangers who have adopt. ed foreign customs,) whether for the alienation of land or moveable property, are not properly vouchers,, but mere ■written records of the transaction, being signed neither by the parties, the writer nor the witnesses. In other respects they are in the nature and bear the tenor of regular vouchers reciting the contracting parties^ the amount and object, the conditioa of transfer, paymeat and interest, specifying the names of the witnesses, and sometimes that of the writer and date. In writtea conveyances of land it is customary to add, according to an ancient form, and still prevailing superstition,, that judgment or curse will befall other claimants, who may disturb, but not the person entitled under this ola in the event of swearing the 5 or 7 oaths.*. — Ibid, pp. 7^ 8. 8- The disinheritance of the legal heir,, (unless Iteasoa neoe 3 s a r y remotely connected,) with the motive for it, is usually, for disinlieriting a and ought in propriety,, to be specified, whether it be a ^S*l ^'r, written or oral will j and if the legal heir be a son or daughter or near relation, naturally dependent on the testator, omission wi.U scarcely take place, for it is held incumbent on the intended heir and the witnesses to- suggest their sitaation to his notice. — Ibid, p- J. Seetion a. (From Sawer's Digest on Kq,ndyan Lam.) 1. Imprecation necessary to mai^e 3, deed valid- — ^2. Grantor's, signature not absolutely necessary to a deed. — 3. Deed when valid though signed on blank. — 4. All witnesses need not be pre- sent at execution. — &. Deed when valid, without signature. — 6. Delivery. — 7. Ceremony of acceptance. ^-8, Age at which on& may execute a deed. — 9. Minor's act when valid. — 10. Minor can cancel his deed. — 11. Deed invalid if fraudulently executed. 12. Heir's right to cancel the same. — 13. Same rules, in case of females, I. Written deeds of any kind,, respecting rights to Trnprecation neces- i . u r 4.1. ■ t V sary to make a deed property, were not common hefore the rerga of Kmg ^^^^ Kirtisree. — S(u»- Dig-, p. 17. * The^we and the uvtri oaths are^-l. By hot oil. — 2. By jaddy — 3. By earthen vessels. — 4. By drawing white olas. — 5. By striking the earth, and casting mud and water. — 6. By Ripolla or the ifed-hot-iron.— ^7. By Naya, or cobra de capella. For a detailed account of the above cerei^opies, see he, Mtiw^f'^- transajation ojE the N\ti ffigcmdmiai, pp. x?«v-:^xxxi^j, , 28 KANDTAN LAW OP DEEBS AND TEANSPEES. Grantor's signature not absolutely neces- sary to a deed. Deed when valid though signed on blank. All witnesses need not be present at ex- ecution. Deed when valid without signature. Delivery, Ceremony of acoep- jiauce. Deeds for the transfer, or bequest of property, has been transferred or bequeathed in parveny (perpetuity) and which have not the imprecations against the executor of the deed himself, his heirs and relations, in the event of the possessor being disturbed in the possession, were considered of inferior validity. The same imprecations were necessary to be pronounced in a verbal gift, transfer, or bequest of landed property, and the same when Ketta or token was given, — Hid, p. 27. a. It never was customary for the witnesses to sign the deed, it was the general practice for the execu- tor of the deed to make a mark by a mere scratch or by writing one letter on the leaf before _,it was written upon, this was commonly done before it was delivered to the wril;er by the person who was to execute it, but its being marked or signed by the executor was not considered essentially necessary to its validity, if it was completed and read to him before his death. — Ihid, p- 27. 3. It was common, when a writer could not be procured at the moment, for the person making the bequest or transfer to sign or mark the talpot or olah upon which the deed was ultimately to be written, a deed proved to have been so marked when blank by the disposer of the property to which it referred — Ibid, p. 27, 4. It was mt necessary that all witnesses men- tioned in the deed should be present, it was only neces- sary that they should be informed by ihe executor of the deed that he had executed such a deed, or intended to execute such a deed, and that its contents expressed his will or intention declared at the time he marked the leaf, was considered a good and valid deed. — /iiti, p. 27. j. Even a voucher which had been written on a declaration made without a scratched leaf of any kind being given would, if it were proved that it contained the last verbal declaration of the person transferring or bequeathing the property, be held to be valid ; in short, all that was necessary was to prove the will or intention of the disposer of the property. — Ihid, p. 28. 6. The customary ceremony on such occasions was for the person who was making the transfer or bequest, to deliver the talpot, olab, or Ketta, into the hands of the person in whose favour the transfer or bequest was made, who received it with reverence and respect, after which he carried it round to the bystanders, and, deli- vering the deed or Ketta to each of them, received it back in a congratulatory manner from each. — Hid, p. 28. 7, When no deed or Ketta was given on a bequest being made, it was customary for the persons making PEOM SAWEU's DIGEST ON KANDYAU LAW. 29 the bequest to take the right hand of the donee and declare the bequest in his or her lavour ; the strict observance of all such ceremonies gave the greater validity to the act and deed. But a deed being written in the handwriting of the person in vyhose favour it was drawn, was considered sufficient to invaliaate the same, and this was certainly a necessary precaution, where the executioa of deeds was done in so loose a manner. — Ibid, p- a8. 8. The age of puberty is the age of manhood and ^8« ^* f ^i** ?°e ,. . ,° "^ J . ^,r ■ may execute a deed, discretion, and as a young man is capable oi marriage at the age of i6 years, so he is competent to contract debts, and is answerable at law for all his deeds executed and contracts entered into after the end of his sixteenth year.— Iliid, p. 28. 9. A minor at the age of 10 years may will or Minor's act when , bequeath his or her property, but to validate such a deed ^^"'i' it must be proved that the minor was fully aware of the importance of the same, and of the consequence of the transaction, and further that there were sufficient grounds for cutting off the inheritance of the heir or heirs at law. — Ibid, p. ap. 10. Should a youth sell his lands, his cattle or his Minor can cancel goods before the end of his sixteenth year, he can break '^'^ deed. the bargain and resume the possession of his lands, cattle or property, on refunding the value which he may have received for the sa.vae.—Jbid, p. 28. 11. The Chiefs are of opinion that, as by their I'^^'i invalid if frau- religious books the age of wisdom is not attained until 'i"'«'i*ly executed. forty, that a person who had lost his land, cattle or pro-- perty, by an imprudent sale or transfer in nonage, should have the privilege until he is forty of reclaiming his lands, cattb, or property so lost. — Ibid, p. 29. 12. The relations and heirs of a minor may Heir's right to can- interfere and prevent his selling his property, but if '^^^ ^^^ same. they do not so interfere at the moment, or so soon as it comes to their knowledge, they have no remedy after- wards ; but if it was done without their knowledge, they might then have their remedy if their relative died in nonage. — Ibid, p. 29. 13. The same rules apply to females, being Same rules incase minors.— Jiiof, p 29. of females. 30 kandyan law of deeds and xraksfbus. Section 3. (From Marshall's Judginents,) 1. The owner can dispose of his property as he pleases.— 2. This power when limited. — :3. The reason for disinheriting the legal heir. — i. Motive for doing so. — 5. Legal heir cannot be disinherited without just cause. — ^6. Consent of heir necessary- for disinheriting him. — 7. Power of revoking. — 8. Grantee entitled to compensation. — 9 Unconditional donations, of move- able property irrevocable. — 10. Of donation the last is preferred. The owner can dis- j. That, according to Kaodyan Law, the owner of he'^elsis^™^"'^"^ land or other property is not prohibited from disposing ^ ^ ■ of it to any person he pleases, away from his heirs.— Mar. yudg..,p. 323. § 47- . The consent of the heir to such disposition is not necessary to give validity to it. — Ibid> p- 323 § 47. It is stated unanimously by the Chiefs who have been; consuUed, that a person having the absolute possession of [and right ti] real or personal property has the power to dispose of such property unlimitedly ; that is to say, he or she may dispose of it either by gift or bequest away from the heirs at law — Ibid, p. ^oj. ^ 37- This power when 2. But to the unlimited power of disposing of landed limited. porperty there was this exception, that lands liable to Rajakarea or any public service to the Crown or to a superior, could not be disposed of either by gift, sale or bequest, to a Wihere or Dewala, without the sanction of the King, or the superior, to whom the service w^s due, (t)* But some ot the principal Chiefs, who have a strong bias in favour of the Church, say that though it was required to have such sanction betore lands regis* tered in the Lekam Mettiy a and liable to service, were made offerings of to Temples, yet it was not customary to anuul them when once made, and as in most instances * The reader cannot fail to be struck with the analogy between this restriction imposed by the Kings ot Kandy, on the power of alienation to Buddhist Temples, and the Englisti Statutes of Mortmain, by which similar transfers to religious houses were prohibited without license from the King or from the intermediate Lords by whom the lands were held; nor is the analogy confined to the respective attempts to prevent aliena- tion. The same desire to evade the law, both on the part of the superstitious donor and on that of the reUgious communities, is observable in the Kandyan-laud holders, and in our Anglo- Norman ancestors, in the Templeg of Buddhu, and in the Cloisters of the English Convents. from; ma.eshall's judgments. 31 it was only part of the service Pangua which was offered, the services for the whole Pangua oecarae chargeable on the part of it which reinaioed unoifered ; if the whole was offered, without sanction, the I'emple was obliged to pertonu the service or pay the daes.— Ibid, pp. 30;, 30S § 37- 3. Whether the owner's reasons for so disposing The reason for dis of his pioperty must necssarily be expressed seems inheriting the doubtful, but as it is usual not to state the reason, '^®^'^- whether undutiful conduct on the part of the heir, want of support or assistance, or any other ground to such omission, must always excite suspicion, and in doubi- lul cases must weigh very forcibly against the act of alienation, that in all cases deeds, disinheriting the heir at law, require to be strictly and jealously watched, and that if they be not satisfactorily established, the Court will lean against them in favour of the rights of the heir at law, as is the rule of the law of England and of the Civil law. Sup. Par. 190. — Jbid, p. 323 § 47. " On the subject of this right of disherison the aoso- lute exercise of which, as we shall presently see, forms almost to this day, a controverted question, the tollow» ing opinions of Sir John D'Oyly are extracted from his observations : ' On deeds and transfers'— Donations of land are made either by oral declaration, or by writ- ing 5 and oral gifts, if clearly and satisfactorily proved, are held to be of equal validity with written. The pro- prietor has full power to dispose of his whole landed or other property to his adopted son, or even to a stranger, in exclusion of his own children, but rarely does so, without just cause. Jt has been alleged, 1 understand by some Chiefs, that a written deed is absolutely neces.. sary to give a title to the adopted son or stranger, and to disinherit the legal heirs, fiat I conceive Irom the decisions which have taken place, establishing the validity of verbal gifts in favour of the wife or one of the children, that this opinion rather referred to the necessity of full and incontrovertiole proot of the fact, which after lapse of time would otherwise be uncertain and difficult, than to any virtue in the writing- I find it generally admitted that such an oral donation to any one, proved recently after it took place, by respectable and undoubted witnesses, must be held valid.— lij/, p* 3o» § 37- " The disherison of the legal heir [unless only remotely connected] with the motive for such disherit son, is usually, and ought, in propriety, to be specified, whether it be a wiitten or oral will > and if the legal 32 KANDYAN LATV OP DEEDS AND TEANSFEES. heirbe a son or daughter, or near relation, naturally depeni dent on the testator, the o i ission will scarcely take place, for it is held incumbent on the intended heirs and the wit- nesses to suggest their situation to his notice." It is to be observed here, that Sir John D'Oyly does not go the length of saying that the motive of disherison must absolutely be mentioned, and that the act of disherison will be void, unless the motive be specified, but only that it ought to be, and usually is, mentioned } the omis- sion, therefore, though it would naturally excite suspi. sion, and in a doubtlul' case would raise a presumption against the act of disherison, would not, and ought not to, be necessarily conclusive againist the disherison, supposing the act to be satisfactorily established by other evidence. See the cases on this subject in follow- ing Par. 38 to 44.— IZijrf, pp. 308, 309. The principle laid dowu both by Sir John D'Oyly and by Mr. Sawers in the preceding Par., that the owner of landed property may dispose it away from the heirs, though certainly supported by the majority of the decisions on this subject [See No. 6,347. Kornegalle, 14 December, and 416, Kornegalle 23rd November, 1833, where the S. C. expresses itself of that opinion] would not appear to have been universally recognised by the Kandyan authorities, many of whom have held that the heir cannot be disinherited, unless for some good cause, which must be expressed in the deed itself ; nay, some have insisted that the consent of the heir to his own disherison is necessary, and must even appear in the deed by which such disherison is effected. The following case will shew the opinions entertained on this subject by many persons of great experience in Kandy- an customs, while it demonstrates the impossibility of obtaining unanimous expositions . of unwritten laws, resting only on tradition, as thi ir authority, and on custom for their enforcement.— Tijc?, p. 309 § 38. A plaintiff claimed a field by right m inheritance from his father Walgame Mudianse. The defendant's answer, as far as necessary to make the points intelligi. ble, was that the Mudianse had allotted half the field lo his son, the plaintiff, and the other half to one Medduma,^ ralle who died, but that afterwards, being displeased with the widow of Meddumarale he transferred the whole by deed to the defendant, with the sanction of the plaintiff himself ; that he the defendant had retained possession of the field ever since and had rendered assis- tance to the Mudianse, in fulfilment of the conditions of the transler, for one year, when the Mudianse, removed to the house of the mother oi ■ Meddumaralfle's v/idoW, TROM Marshall's jubbmekts. :^;; where be died two or three days afterwards, and that his death took place ten years ago. Thd deed produced by the defendant was dated ^-jt!j-= and purported .to be an account of the Mudianse having incurred debts which the defendant was lo take upon himself for assistance which the defendant was lo render ; and of the IVludi* anse's eldest son being consigned to the protection of the defendant. The Court of Judicial Commissioners considered it unnecessary lo go into evidence, the deed appearing invalid. 1st, because it contained no mention of the plaintifl'S consent,- as alleged by ihe defendant, and without which consent so expressed,, the pjaintiff could not in the opinion of the Court be disinherited- andly, because the defendant had made no allusion in his answer to the payment of debts,, as stipulated in the deed. The Court accordingly gave judgment for the plaintiff as heir at law, reserving the right of the defendant to recover back any expenses which- he might have incurred. The deiendant appealed to- the Gover- nor [this was before the promulgation of the new Charter], by whom the case was referred, back for recon.* sideration j. on the grounds, ist,. that the assent of the son was not necessary ; andly, that the father had not divested himself, by the first allotment, of the power of otherwise disposing of the property ; and 3rdly, that the defendant's omission to mention the debts in his answer amounted only to a suspicion against the deed, but was not sufficient of itself to annul it. The case having been reconsidered, the Assessors delivered the foUowino- opinions : " If a son prove undutifuU the father may give his land to a third person, in consideration of assistance, but, in such case» the deed must specify the causes of disherison. If a son be unable to render assistance to his father, the gift to another person must be by his consent. The present deed is not a remune.. ration for assistance given or debts paid, but a stipula- tion for assistance to be given and debts to be paid : and evidence is unnecessary because the donor quitted the defendant's house before his death, which, of itself, is sufficient to vitiate the deed, of gift [see No. 3,660. Kornegalle, infra par. 44 as ta this pomi], and there- fore the defendant could only claim to be paid for his * Sacca 1737 was equal to the Christian era 1815. — The way to find this ovit is, by adding 78 to Sacca, which will al- ways give the Christian era. 34 KANDTAN LAW OF DEEDS AND TRANSFEBS. expenses. The members of the Court concurred in this view ol the case, and in that state, the proceedings were brought up to the S- C, upon which had then devolved appellate jurisdiction all over the Island. Tlie follow, ing order was there made : That the case be referred back to the D. C. to hear evidence on the following points : ist whether the plaintiff's consent to the deed of gift was expressed by him or not ; 2ndly, how lont; the defendant supported the plaimiff's father and when the latter left the defendant's house ; 3rdly, whether the defendant paid any debts for the plainlitf's father and to what amount; and 4thly, when the plainti£P's faihi-r died, and how long the defendant had been in posses- sion. The S. C. then observed, '' that it could not but be somewhat startled at the proposition, so broadly laid down, that the consent of the son was absolutely necessary to enable his father to dispose of his property ( t)* even though the son and heir should be so poor [according to the second opinion of the Assessors] as to be unable to render the required assistance, that if this were correct, the father might perish, because his son refused to sanction his parting with his property to enable him to procure support, a position which was not only unreasonable in itself, but was also [if pushed to the extreme extent insisted upon by the Assessors] at variance with the general rules of Kandyan Law, as far as the S. C. had been enabled to ascertain those rules, and which would seem to be contradicted bv many of the numerous decisions of the Courts in the Kandy Dis^ tricts, confirmed too by the Court of the Judicial Com- niissioner, which were then lying before the Judsres of the S. C. for revision [See No. 3010 and 5323 Korne- galle, infra par. 39], that the judgment of the Court below, however, went still further, and decided that the consent of the heir, openly and expressly avowed, was not s fficient to legalize a deed of transfer utiles such consent appeared in the deed itself j in other words, unless the heir were a party to the deed —that no law or custom, however venerable by age, could sanction fraud, whereas, if the defendant's statement were true, the plaintiff's conduct had been fraudulent in the highest degree, since, if he did express his assent to the transfer which be now disputed, such assent must be presumed to * (1) It may be observed, as matter of analogy, that by the Common Law of England, a man could not give by will away from the heirs at law without the heirs' consent, till the 32. Hen, 8. ch. 1. enabled him so to do. I'BOM Marshall's judsments. 35 liave contributed to induce the defendant to afford that support aud assistance to the plaintitf's father, which without such assent he would probably have refused, but that even if the deed should, on further evidence, turn out to be invalid, as an absolute transfer, it must at least be considered that the defendant had a virtual mortgage oil the land for any expense which he might actually have been put to, for ihe father's support or for the payment of his debt.o, a'd therefore that he had a right to hold it as a security for repayment. That in case of the deed being ultimatelv rejected, therefore, tha defen- dant, instead of being turned out of the land and then left to his remedy at law, should be first repaid his ex- penses, and then be decreed to give up possession." On the proceedings being again returned to the S. C, it appeared by the evidence that the deed had been given for the considerations assigned by the defendant, that the condition had been fairly fulfilled, and that the defen^ dant had been many years in possession, and jadgment was accordingly finally decreed for the defendant. No. 4380. Kandy, pi-h October, 1833, and 24th May, 1834. — Ibid, pp. 30!y-3i2. 5. There can be no doubt, however, that every Legal heir when transfer of property, by which the heirs of the Donor or cannot he disinhenrit- Testatorare to be disinherited, should be vigilantly watch- ^^ ^'*''°"* ^"'' <"^'^"*' ed and strict proof required ot any Deed, by which such transfer deviating from the usual course of natural feeling and affection is to be effected. In the case just mention- ed No. 5323 K-ornegalle, the S. C. decided against the validity of the deed, on the ground of certain discre- pancies and contradictions in the evidence, which were entitled to the greater weight, from the consideration that the effect of the instrument was to disinherit the son, and heir at law : And where such transfers purporc to be in consideration of assistance it is equally incum- bent on the Courts, to see that the ciinditio;is have been faithfully and slriclly performed. 'I'he following cases will shew the view tak^n by the S- C on this subject, when first it was called on td decide on the Kanclyan Jaw of inheritance. An action was brought for certain Lands claimed by the plaintiff, as having been granted to him by his uncle Kieralle in consideration of assis- tance which the plaintiff rendered to his uncle for six months until his death. The deed was disputed by the widow of the deceased on behalf of herself and her child, and she averred that, though thd plaintiff had persuaded Kieralle in bis illness to leave his own house and go and reside wiih the plaintiff, she bad succeeded in bringing 36 KANBYAN LAW 0¥ DEEBS AND TRANSEEnS. him back to his home where he died. The plaintiff proved that he had rendered assis'ance to his uncle, and also called several witnesses to prove the execution of the deed, but not the writer of it. The assessors now W€re of opinion, that as the plaintiff had proved the deed and assistance, he was entitled to judgment, and the Judicial Agent being of the same opinion, a decree was passed in his favour accordingly. On appeal to Kandy, the assessors in that Court were of opinion that the decree should be affirmed j the Judicial Commissioner, that it should be reversed, partly because plaintiff's deed assert- ed that Kieralle had no children, partly because the plaintiff's services did not entitle him to a grant by which the heir at law was disinherited. In consequence of the difference of opinion., the case was referred to the S. C, where the following order was made. " That the D. C. should take the evidence of the alleged writer of the plaintiff's deed, and enquire why he was not called as a witness." That the S. C. did not go so far as the late Judicial Commissioner, in thinking that the plaintiff's service, if really rendered, would not have warranted the grant in his favour ; nor was it quite correct that the deed alleged Kieralle to have no children, for it only declared that he had neither wife nor children, to assist him in his illness, that every deed, however, disinherit- ing the heir at law ought to be proved beyond the pos' sibility of doubt or suspicion. That the not calling the witness of such deed, without accounting for the omis' sion, by death, or other uncontrollable circumstances, had, in itself, a suspicious appearance, more especially considering that the names of witnesses were often not signed by themselves, but simply introduced into the body of the instrument, with their assent", [vide supra : Iff. 2. 3.] The omission to call the writer in the first instance having been afterwards satisfactorily accounted for, the original decree in favour of the phimiff was affirmed. No. 8736. Kornegalle 20th November 6th December 1833. — Ibid. pp. 313-315. § 40. In another case in the same Court, the plaintiff claimed as heir at law, the defendant claimed by virtue of a deed, by which the plaintiff would have been disin' herited, as regarded the land in dispute. The evidence as to the facts, and as the proof of the defendant's deed was confliclinj?, the assessors considered the plaintiff had not established his right, the Judicial Agent was of a contrary opinion, and that no credit was to be given to the deed of the defendant, on appeal to Kandy, the assessors there agreed with the Judicial Agent, and rilOM MiKSUALL's JUDGMENTS. 37 observed moreover that even if the deed had been coai. pletely proved, it would have been of no validity, because it assiijned no reason for disinheriting ihe heir. The Judicial Commissioner again differed from his assessors, and considered that the deed might be inainlained. 'I'lie S. C , on the case being brought before it, decreed that the plaintiff be put in possession of the land claimed, according to the opinion of the late Judicial Agent of Kornegalle, and of the assessors of Kandy, without going so far with the assessors as to say that the deed of dis- herison, filed by the defendant, was necessarily invalid, because no reason was assigned for th'it act, still the absence of any such reason was one argu i ent against its being genuine, and must necessarily be entitled to weight in a doubtful case. No. 7165, Kornegalli', 21st November 1833. — Ibii. p- 315. § 41. 6. Two cases have just been referred to, in par: Consent of heir 38, as being at variance with the decision of the court of w'leii necessary for Kandy, as regards the nfcessity of the heir's assent to disinheriting him. the property being disposed of to his prejudice- lu one of them the claim was for four fields which had been sold to him by one Menickrale whose wife had neglected him, and who, by that sale, deprived his wife and child of the right of succession. The case was inquired into with great care by the Court of the |udicial Agent which gave judgment for the detendant on the stieoyth of the deeds, which were satisfactorily proved, and of long poss- ession. This judgment was confirmed by the Court of the Judicial Commissioner at Kandy, but there certainly was no proof of any assent on the part of the respective heirs in that case. And though the length of possession by the defendant may be supposed to have strengthened his case, yet it must be recollected that in No. 4,380 from Kandy, par : 38, one of the points urged by the defendant in his answer, was possession, for upwards of ten years, which he afterwards established by proof. The S. C. affirmed the dtcisions of the Court below. No, 3010 Kornegalle, 9th October 1B33. In the other case, also, the question was whether a deed of gift, under which the defendant claimed and by which the plaintiff, the son and heir of the donor, was disin.. herited, bad been satisfactorily proved. The Court of the Judicial Agent was of opinion, that it had not, and accordingly decreed for the plaintiff. The Court of the Judicial Commissioner, on appeal, was of a contrary opinion, and gave judgment, for the defendant, in this case again no consent on the part of the plaintiff, as son and heir, was proved, or even asserted. The S. C, how- 38 KANDYAN LAW OF DEEDS AND IRANSl'EES. ever, on the case coming before it, agreed with the ori- ginal Court, that the Deed was not satisfactorily proved, and on that ground decreed that the plainti£E should be put in possession of the land in question. No. 5323' Kornegalle 8ih October 1833.— /iirf, pp. 312.313 § 39, Power of revoking. J. In all transfers for assistance to ba rendered, the condition must be shewn to have been faithfully and strictly performed, in failure of which the transfer ought not 10 be enf( rced. 1 he donor has ths right of revocation by any sub' sequent transfer ; and even without deed, for the act of his removitjg to another house, where the transfer was in consideration of assistance, would seem to amount to a revocation ; that where his intention is not clearly ex- pressed as to revocation and other disposition, the Court must decide acci rding to the evidence, whether just ground existed for his dissatisfaction with the first Donee- And that where the subsequent transfer is confirmed, or the former one is revocable, the question arises as to the claim of ihe former Donee for remuneration for assistance actually rendered by him. — Ibid, p- 323 § 47. In another action, also in the Court of beven Korles, the plaintiff claimed certain land by virtue of a deed ot gift from one Horetella, in considerauon of assis- tance to be renilered to that person, and of paying his dehts. Ai Horeteila's death his claim was set up by the plain' iff and was opposed by the defendant, on behalf of one of Horeteila's daughters, by virtue of a deed alleged 10 have been executed in her favour by him a few days before his death. The evidence was of that description, unfortunately but too common in Ceylon, which makes it difficult to say on which side fraud and perjury lie, or whether boih parties be not open to the imputation. I'he nature of the evidence will, however, appear sufficient- ly to make the decision intelligible from the respective judgments. The Assessors in the Court of the S;ven Korles were of opinion that, though the plaintiff had proved the execution of the deed in his favour, yet there was much prevarication in his witnesses, and as it by no means appeared that he had fulfilled his agreement as to assistance, but rather the contrary, they did not consider he had established his claim to the land, which they, therefore, were of opinion should ha divided between the two daughters of Horetella, for one of whom the de.. fendanl claimed. 1 lie Judicial Agent concurred in this view of the case, and it was decreed accordingly. Oa appeal to the S. 0. this decree was affirmed in the fol- lowiBg terras .- " This Court is not surprised at the im- FROM MABSHiLL's JUDSMENTS. 39 pression made in the Court below, by the extraordinary manner in which the witnesses swear in this case- But the ground on which the case has been decided renders Vhe question of fraud or prevarication of litils impor'ance. With that ground, this Court fully concurs The deed in favour of the plaintiff was granted on a specific condi- tion, nol executed but executory- There can be no doub', therefore, that a failure in the performance of that, condi.. tion, must defeat the instrument, it was for the plaintiff to shew a real honajide performance of that conai ion. In this, he has cenamly failed- It appears indeed that the deceased lived for a time in a house, either belonging to the plaintiff, or over which he exercised a certain degree of control; and that the plaintiff supplied him for a time with rice, but there was no one on the part of the plain tiff to render that personal assistance atid attendance, to the deceased which evidently was in his contemplaiion ■when he executed the deed, and which the plaintiff's own witnesses state was rendered to Horetelta by his daughter. It is also a strong; circumstance, tiiat the last offices were rendered to Hor£tella, not by the plaintiff but by the defendant. It is indeed said by the plaintiff's first witness that the deceased was removed from the plaintiff's house by the defendant, but not; of hi^ own free will. If, however, the plaintiff had been extcu'iiig the stipulated condition, according to the spirit; of it, he would have been pre.'ent and might have prevented anv violence being offered, if any such were really offered, to the inclination of the deceased. Nor has the plaintiff proved the payment of any debt for Horetella, except in a manner much too loose to eititle the evidence on that point to any weight. Indeed, the circumstance of the plaintiff having requested the creditors to wait, for pay- ment would rather lead to a contrary inlerence. It is of great importance that the strict fulfilment of those con- ditions which appear so frequently to form the considera. tion for grants of lands in these Districts should be watched with zealous vigilance, in oi dtr to prevent de- signing persons from availing themselves of the weak- ness of the aged or infirm persons to get possession of their little property, in prejudice of the rightful heirs, and then leaving them to perish in a state of desiitaiion.'' Mo. 1,622. Kornegalle, 26[h October li^^.—ilid. pp. 3IJ-3I7- § 4'»- An action was brought on Notarial deed dated ipth June 1829 for 'and thereby assigned to the plaintiff by the defendant in consideration of assistance already afforded and to be rendered to the defendant as. long as 40 KASDYAN LAW OP DEEDS AND TKANSFEttS. he lived, or, in default of recovering the land?, the plains tiff claimed peconiary compensation for tlie assistance rendered by him to the delendant and his wife for the last stven years. The defendant admitted the deed, but alleged that the plaintiff bad failed to render the stipulac ed assistance, whereupon the delendant had assigned the land, by another deed, to his grand-daughter. The Court of Ma'elle considered it unnecessary to hear the evidence, because, the deed being admitted, it vras clear that the land was the property of the plaintiff, and it was so decreed accordingly, provided the plaintiff continue to render proper assistance. On appeal to the Judicial Commissioners' Court it was observed hy that Court "That according to Kandyan law, a donor did not lose the right of transferring his land tO' a second donee, if he had cause to be dissatisfied with the assistance of the first," and the case was therefore referred back to Matelle lor evidence as to the assistance actually rendered. On the part of the plaintiff, the witnesses stated that the defendant transferred his land to the plaintiff, giving one of his teeth as a token ; that the plaintiff had provided everything necessary for six years, cultivating the land and giving the produce to the defendant, who, however, assigned the land to his grand-daughter about a year before the action brought, and that the plaintiff came to the defendant and offered to render assistance after the first decision at Matelle, which the defendant, however, rejected. The defendant s witnesses stated that the plaintiff assisted the defendant, before the execution of the deed, but not since. On this evidence the Court ot the Judicial Agent was still of opinion that the plaintiff was entitled to judgment. The case being again carried in appeal to Kandy, the Assessors who gave credit to- the defendant's witnesses were of opinion, " That as the deed had been granted for further, as well as past,, assis- tance, and as the plaintiff had not rendered any assistance since the deed was passed the grant was forfeited, but the plaintiff was entitled to compensation for his former assistance." The Judicial Commissioner agreed with his Assessors, except as to the latter part of their opinion, for he considered, that as the plaintilf had forfeited the deed through neglect, he was not entitled to any com.* pensation ; the case being brought before the S. C. the view taken by the Judical Commissioner was confirmed, and it was decreed as to the Deed gi anted to the plain, tiff by the defendant. " It is necessary," the S. U. ob» served, '' that these alienations of land out of the family of the donor, in consideration of assistance, should he TROii UABSHALL's JUDSUENtS. 41 Strictly watched, with respect to the due performance of the condition. In the present instance, it appears that the plaintiff began to relax in his attentions and assis- tance, troni the time the deed was executed. These instruments, it seems, are always revocable by the Kaudyan law [vide infra. Par. 46] subject in certaia cases 10 compensation for assistance actually rendered. Now, the plaintiff cultivated the defendant's land for six years, and though it is said he gave the produce to the defendant, it is not to be supposed that this did not go towards the defendant's support. If these deeds were to be enforced in the terms of the decree in the original Court, that is, provided he continues to render proper assistance to the defendant, this latter person would be entirely at his mercy, or which is nearly as bad, he would be obliged to have recourse to law in every instance in which the plaintiff failed to render him adequate sup. port." D. Meek Appoo vs. Attoohendtui, Matelle 26th November 1833 — Hid. pp, 317^319 § 43. In another case, closely resembling the foregoing, and which was decided on similar grounds, the plaintiff, claiiried a garden as having been transferred to him by the defendant's wife on deed in consideration of assis- tance to her. The defendant proved that the plaintiff had discontinued his assistance for some time before his wife's death, and that the defendant had been obligedi in consequence, to borrow paddy lor his wife's support. The Court of Kornegalle, accoidingly, decreed for the defendant, and this decree was affirmed by the Judicial Commissioner's Court, and afterwards by the S. C. No. 3,660 Eornegalle, loth October 18^3. In this case, however, some of the Eandyan Assessors were of opinion that, as the deed of transfer had been duly executed, and as the plaintiff had assisted the defendant's wife till a few days before her death, he was entitled to retain the garden.— This opinion is mentioned here as being at variance with thatexpressed by the Assessors' also Kaudyans, in No. 4,380 sup. par. 38 from whom he was to receive assistance, two or three days before his death was a revocation of the grant, even though he left the house, of his own accord, and without any failure of assistance, as far as appeared. — IMd,p- 3 19 § 44. The power of revoking or superceding the Gifts or bequests by other subsequent ones is so intimately con- nected with the original power of disposition, that it will be convenient to insert in this place what is said by Sir John D'Oyley and Mr. Sawers respectively on this sub- ject ; To begin then with Sir John D'Oyley ; Transfers, 42 KANDTAN LAW OF DEEDS AHD TKANSFEES. the Donations* or bequest of land are revocable at pleasure during the life of I he proprietor who alienates it ; It is held that any land proprietor, who has even difinitely sold his land, may resume it, at any time during his life £this position we shall presently see, is disputed by the chiefs consulted by Mr. Sawers] "paying the amount ■which he received, and the value of any improven ent, but his heir is excluded from this liberty. The reason of this custotn is, respect and attachment, which belong to ancient family rank, and the importance ascribed to the preservation, as it is called, of name and village ; the name by which every person of rank is distinguished and generally known, being that of the village, in which his ancient or principal estates are situated- When a land proprietor is become old and infirm, and has no near relations, or none who look after him, it is a common practice lor him to transfer his lands to another, frequently * (Note by Jtistice Thomson,) A donation in consideration of assistance to be rendered to the donor, is, by the Kandyan law, revocable, subject in certain cases to compensation for assistance actually rendered. (Dodandenia v. Koomara. Ooo : Ag : Matelle, Morg : D. p. 7 ) Kandyan deeds of gifts, excepting those made to priests, whether conditional or unconditional, are (like wills) always revocable by the donor in his lifetime, and are often made in contemplation of death ; but such presents differ essentially from last wills or documents in respect to their transferring an immediate title or interest to the donee in the property thereby granted ; whereas a will does not take effect until the death of the testator. Until proof of both side has been gone into as to the execution of ^ese grants, and it be shown whether they were delivered or not to the donee, and whether the donees were put into immediate possession of the lease granted thereby, this Court cannot, in the present stage of the suit, give any opinion as to what is the legal ettect of the deeds. (4271. D.O. Matelle, W Aug : 1844.) The consideration on condition of the deed of gift is " to render all an every neces- sary assistance till my death, to cause my remains to be buried according to the customs of the country. " Now the custom on such gifts is for the donee-lio send one or more servants to wait upon the donor, and to supply provisions and medicines, and procure the burial according to his ability the condition of the party, and the value of the land. (See Marshall, Dig : p. 321, par 46) : and such services not being required to be rendered personally by the donee himself, his heirs, although not named in the deed, take by law, on hia death, an interest in the condition, and may perform it. Whether the services have been continued to be duly rendered to, and accepted by, the donor during his lifetime, or whether he ever expressly revoked the deed of gift and assumed posa ession of the lands given, are questions for evidence upon such points being raised in defence by the answer. (ISISl D.G. Kornegalle, 11th June 1851, Coll.) JEOM MAR8HAU,'S JtlDGMESTS. 43 a relation, on condition of receiving support and assistance till death. In this case the latter sends one or more servants to wait upon and administer to him, and supplies provisions and medicines, according to his ability, the condition o( the party and the value of the land ; If the owner,, for so he must still be called, be dissatisfied with the assistance afforded, he can at any time revoke the gift as well by virtue of the rule above stated as because it is conditional, [the latter ground, viz : the conditional nature of the true foundation of the power pf revocation"}] and may make over his property to another person who thereupon reimburses the first acceptor for the expenses incurred by him. This change of possession is not unfrequent, and there have been instances of five or six successive resumptions and new assignments by the same capricious proprietor. It fol- lows that the last bequest or transfer supersedes all which may have preceded." Upon this exposition of Sir John D'Oyley of the very important question of the power of revocation, we find the following notes by Mr. Sawers who appears to have consuhed Assessors on the point, and who modifies the proposition laid down by Sir John D'Oyley, as regards absolute sat^s of land : — a mo> dification which good sense and Justice must lead every one to concur in. The Assessors unaniraou-^iy assent to the position that Transfers,. Donations, or beqniests of land are revocable at pleasure during the life time of the person who alienates the same, but deny that a definite sale of land is revocable by the seller at his pleasure : For though it was not withou*'' precedent for bargains of this land to be broken and annuUed,. ev«n years afier the sate it was neither justified by law or custom. — Ibid pp. 320-3J-1 4 46.* 8. On a claim of land transferred in consideration eompensltiBn! ** of assistance, it appeared that the deed of transfer was invalid, under Proclamation of 28th October 1820, from its bearing no mark, as the signature of a witness, but that the grantor had lived in the house of the grantee, and^ had been supported by him for three years, though she afterwards removed to the house of the defendant with whom she resided for eight months till her death, and to whom she made over the land in. question a few days before she died. Under these circumstances the Kandyan Assessors were of opinion, that the plaintiff, though the deed could not be supported, was entitled to See Am Thorn, Inat, Vol, I J pp. 623, 624. H KANDYAN LAW (W rEEDS AND TRANSMRS.' Unconditional do- nationa of moveable property irrevocable. Of donations last is preferred. the compensation for the assistance rendered by him, and rn tl^is opinion the S. C. concurred, decreeing the land to the Defendant, he indemnifying the plaintiff according to the Assessment made of his claim by the Assessors P, R.Ralle and Y.BP Mohandiram. Matelle 17th Janu- ary ia34 °0 circuit. — Ibii- p- 320 § 45. .9. Unconditional donations of moveable property, such as cattle, goods or money, were not revocable. For it was exceedingly common for old persons, having no chil- dren (i)* to take up their residence in their old age wilb relations or strangers, in whose favour they in the first; intstance executed a deed of gift or bequest, transferring the whole of the Donor's property to the Donor, for the sake of assistance and support- but it frequently happened that the Donor was a person of capricious mind or violent temper, and upon any slight occasion would remove to another House and execute a similar deed ; and thus numerous claims to his property after his death would be made upon deeds of the same import and of apparently equal validity ; in such case the Judge always decided ia favor of the perton under whose care the deceased had died ; however short the period might have been of bis residence at that house ; but any other person who had rendered the deceased assistance and support for any leugth of time and had been put to expence thereby would have a right to compensation out of the deceased's property j and even before the death of the person assist* ed, such compensation would be demanded and recover* ed. — lU4 fp- 321-322 § 46 t 10. I'he person rendering the last assistance and support to tbe deceased would have a preferable right to his properly to that of a person holding a deed of bequest, whose house he had quilted or whose service he bad rejected, from dissatisfaction with treatment be had received, but it must be clearly proved that it was the * And in many instances, as tbe cases shew, where they bad children, but who are unable and unwilling to give the requisite assistance. It would appear from the Text that trhat is here laid down as the opinion of the Assessors, on the subject of the revocation of De^ds for Assistance, had referenco to Moveable property only ; but it can scarcely have been intended to be so limited and the numerous Cases on this sub- ject would su6Bciently prove that landed property constantly focms the subject of these Conditional gift or bequests. — Thia and sundry other passages in the Memoranda of Mr. Sawers have suggested a fear that the copies of those Memoranda are- not always correct. t See Thvm, Inst. Vol II pp. 624, 625. »aoM THosiaoN's issriTOTjea. i.-) intention of the deceased that the person renderiag him assistance in his last moment was to be his heir j other* wise, the person rendering the last duties would only be entitled to be rewarded for h rson under whose care the deceased ultimately died, for his or her trouble or expence. — Ibid, pp. 3*2-323 § 46.* 8bction 4. (From, Thomson's Institutes.) 1. Written Deeds were not common till reign of Kirtisri. — 2. Imprecation necessary to make Deed valid. ^.3. Nature of Kandyan Deeds. — 4. Number of witnesses necessary to make a Sandyaa Deed valid. — 5. Grantor's signature not absolutely necessary; verbal declaration suflScient. — 6. Ceremony connect- ed with the delivery and acceptance. — 7. Ceremouy of licking the hand. — S. All the witnesses to the Deed need not have been jtresent at the execution. I. The forms of deed, and to the ceremonies to be observed in unwritten transfer and becj'iests of properiy under Kandyan Law -^Thom. Inst- Voi 11- p- 660 f Written dreds of any kind, acceptin;^ rights to pro- Written Deeds were periy. were not common before the reign of the Kina not common till reign Kirtisri X ' °^ ^^'^'■isri. a. Deeds for the transfer or bequest of property in Imprication neces- pa'veny (perpetuity) were considered of inferior validity sary to make Deed if they had not the imprecation ; by which, according lo ■^*^''^' an ancient form and si ill pn vailing superstition, a judg- ment or curse is invoked against the person executing the deed, his heirs and relations, and also against all other claimants who may disturb the person in whose * See Thvm. Inst. Vol. U pp. 625, 626. f See Mar. Judo. p. 354 § 131. ? S>se Mar. Jvdy, f. 3551 132. ^6 KANDYAN LAW OF DEBBS AND TRANSFEHS. favour the deed is executed. The same imprecation was necessary to be pronounced on a verbal gift, transfer, or bequest of landed property ; and the same when a kettoi er token was given — Ibid, pp. 660.661.* Nature of Kandyan 3 Ail deeds executed in the Kandyan country ^^ ^' [except occasionally among strangers who have adlly declaring his 'will. In such case the deed may be written in his Hume immediately after his decease, and, the names of those who were present at the transaction being subjoined as witnesses, it is held of equal validity. — Ibid, pp- 65i-653.* 6. The customary ceremony on such occasions was Ceremony connect- for the person making the transfer or bequest to deliver ed with the delivery the talpot, olah, or ketta into the hands of the person in *"^ acceptance. whose tavur the bequest or transfer was made, who re. ceived it with reverence and respect ; after which he carried it round to the bystanders, and delivering the deed to each of them, received it back from each in a congratulatory manner. It was considered snfiicient to invalidate a deed, that it was in the handwriting of the person in whose favour it was drawn ; and this was certainly a necessary precaution where deeds were executed in so loose a manner. - -Ibid. p.66i t _ 7. When no deed or ketta was given, on a bequest Ceremony of licking oeing made, it was customary tor the person making the ti^ hand, bequest to lick the right hand of the donor, and deliver the bequest in his or her favour. The siricc observance of all such ceremonies gave the greater validity to the act and deed. In one case the donor of land gave one of hi» teeth to the donee as a token of his intention. — Ibid. p. 6.4 t 8. It was not necessary that al' the witnesses men. ^n ti,e witnesses to tinned in the deed should bj pres-eiit ; it was only neces the Deed need not sary that they should have been informed by the person have beenpreaent at executing the deed, thai he had executed, or intended to * execution, execute, such a deed, and that its contents expressed his will or intention, declared at the time he marked the leaf. 1 he names of witnesses absent at tiie tune of writing are sometimes inserted in the deed ; and it- is con-idered sufficient, provided the dead be read to them shortly afierwards, in ihe presence of the parlies, or of him who executes it. It is impossible that the insertion of the names of persons not present at the execution can give any validity to the deed. Nor is this position in- consistent with ihe above ; for the reading over the deed to the witnesses in the presence of the parlies, or of the * See Mar. Jndg. p. 356 § 135. t See Mar. Judg. p. 356 § 137. X See Mar, Judg p. 357 % 139. 48 KANDIAN LATT OT DEEDS AND TKANSrEBS. person executing; it, is in fact tantamount to a fresh execation aod delivering of the deed, though it would, no doubt, be better aud more safisfadtory that each witness should sign the insirument, in order to leave less possibiliiy of doubt as to the identity of it.— /iJ«' i*/*» 653.6:4.* Section 6. (From Solomon's Manual.) 1. Who may execute a Deed.— 2. Age at which a youth can execute a Deed. — 3. Requisites of a valid Deed, — 4. What is sufficient to make a Deed valid. — 5. Nature of Deeds. — 6. Ways in which a Deed becomes revocable. — 7. Donee when en- titled to recompense. — 8. Donee when not entitled to recom- pense, — 9. What Deeds are irrevocable. Who may execute I. A deed may be executed by any person possess- aDeed. ing property, provided he was of sound mind at. the tima of its execuiion. A man may transfer his landed pro. perty by det d to any person, and ia any manner he chooses — Sol- Man. p. 23. f Age at which a 2. A you'h, though his age does not exceed tea youth can execute a years, is competent to execute a deed, it he is sane at the l^e^d. time, and understands the nature of the transaction. Such a deed would be valid, even though it prejudiced his next of kin and was in favour of a stranger, but the donor must have good reasons for so disposing of his propsriy — Ibid p 23 { Requisites of a valid 3, a deed must be fully written out before it ia I'eed. signed ; if thi donor or vendor and his viitnesses set their names to a blank sheet of paper which was alterward& filled up, such a document would be invalid at law.— Hid p- 24. § What is suflBcient ^, la a deed of gift or final transfer, it is not eseen. to make a Deed valid, jj^j jj^^j ,jjg parties be mentioned by their exact or correct names so lung as the description is sufficient for the pur- poses of identification. Nor is it necessary that with such a transfer, the origi « .father to dispose of his pro- his property to obtain perty m order to obtain assistance and support. Such assistance. a requirement would not only be unreasonable itself, but is at variance with the general rules of the Kandyan Law, and opposed to numerous decisions. — .(.380, Jud. Com. Kandy, (M.) — Ibid. p. 1. § i. Donations for assis- 3, A Donation in consideration of assistance to be r:rcabirs"bject't° IT^^'l^ "".'^^ O".""--' ■■« ''y the Eandyan Law revoca. compensation. '*'^» subject m certain cases to compensation for assistance actually rendered- — Dodandenia vs. Koomare, Govt. Agt. Matelle, {U.) — Ibidp. 7 § 37. When Deed turns 4. In a case between Kandyan partie.Kandy, D- G , No. 19866. — This was an action 'brought iQ 1846 upon a Deed dated 18381 which deed -did not contain the signature of the Grantor but merely his mark, and was attested by a Notary of the District of fi'our Korles whereas the land mentioned in the Deed was situated in the District of Matella, and ought there., fore to have been attested {according to the Ordi- nance No, ,7 of 1834*) ^y a Notary of the District wherein the latid was situated. 1 he Court below non^ suited the plaintiff, but in appeal reversed and case re., manded to proceed in due course. " It appears from the Deed thai it is signed by the Grantor by a mark, and the mere fact of a Deed not being attested &c., by a Notary of the District does not invalidate the Deed by the Ordinance No. 7 of 1840, sec- 14.^' Per Stark. Be. vember 7, 1848. On the next triabday, the Proctor for plaintiff pro- posed to read in evidence the statement of one Nayda deceased, who was a witness ia a former case between the same parties and for the same lands, and which case bad.be«i duly produced by the Secretary. The Court was of opinion that before the statement of a deceased witness could be read in evidence, his identity must be clearly established, which not having been done in the present case the motion was disallowed, and the case having beea proceeded with, the plaintifE was non^suited. In appeal set aside and case remanded for hearing. " Legal evi- dence was tendered, — the evidence of a deceased wit- ness in a former suit between the same parties, and for the same lands as it should seem was rejected," Per OHphant. March 8, 1851 — Austins Rep- p. 113. Kandy.B. C, No. s6i2i.— The Libel states that the lands in dispute belonged to ist plaintiff, and that he transferred them to and, 3rd, and 4th plaintiffs upon the Notarial Deeds of Gift marked A. B. and C, for assistance to be rendered- Defendant being in the forci- ble possession thereof, the ist plaintiff prays that the and. 3rd, and 4th, be declared entitled to, and quieted in the possession of the said lands. Defendant denied shat these lands belonged to ist plaintiff, or that he ever exe- cuted the Deeds in favor of the other plaintiffs : On the day of trial ist plaintiff in his examination admitted that he executed the Deeds in question ; upon which evidence was called only to prove his title, arid the case for the plaintiffs was closed. Defendant's Counsel then moved Deed not invalid fol want of attestatioti, Deed requires proofi 2 Repealed by No. 7 of 1840, KAiTDISAN tiW OF DEEDS AND. TBANSPEUS. Deed requires proof anleas it comes from the proper custody. for a noD.suit on the ground that plaititifEs bad not proved the mos't materM part of their ease, nanaely the- Deeds. Plaintiff's (Jounsel in reply contended that ist plaintiff who is a party on record having admitted the Deeds, it was unnecessary to call witnesses to prove them, and cited Kandy D. Grease No. 20353 in support o{ his argument. The Court below was of opinion that 1st plaintiff's right and title to the lands had been established^ but in the absence of any legal evidence of title- in the other plaintiffs, the Court was not in a posi* tion to graat the relief prayed for in the Libel. " When a Deed or Insiru-ment produced,, purports to have been attested before one or more witnesses whose names are subscribed, one of them at least must be called; so rigid indeed is this rule, that it seems it is not even supersed- ed in the case of a Deed by proof of an admission or acknowledgment of the execution by the party himself.* Defendant is therefore absolved from the instance with costs." In appeal set aside, and case remanded to enable the 2nd,. 3rd, and 4th plaintiffs to prove their respective deeds, and to give judgment de novo. "The Supreme Court fully concurs with the judgment of the District Court as to the lands having formerly belonged to ist plaintiff, and his right to execute such Deeds ; but the Court cannot thereon now adjudge the lands to ist plains tiff in face of his own admission on the record, that he had transferred them to others. Nor can it decree the other plaintiffs to be put in quiet possession thereof under their Deeds, when no attesting witness thereto has been called to prove the same^ and their validity has been wholly denied in the Answer by defendant who says that they are not the Deeds of the ist plaintiff, who was not o( sound mind."^ Collective, ^uly i,i8^^. — Austin's Bep* pp. 181.182. Kandy:, D. C, No. 26342. — Plaistiff as vendee of Intervenients Dingiry Menica and Kiry Menica (the widow and daughter respectively of Poonchyralle deceas ed) claimed certain lands ; and with his Libel filed two talpot Djeds, one purporting to be in favour of Munich jolle the original proprietor, and tlie other from Manick- ralle to Poonchyralle (Kiry Monica's father). On the day of trial, plaintiffs' Counsel submitted that both these talpots being more than 30 years old, no proof of their execution was necessary, and therefore moved that they be received in evidence. This motion was refused * Starkie Evid, 3rd ed. vol. 1. p. 371.— Hoscoe Nisi Prius. p. 87.— PhiUipp's Evid. 9th ed vol. 2, p. 202. TBOM AUSTIN'S APPEAL KEPOUTS. fij because they ought to have been prodaced from the pro. per custody,* provided otherwise some account be given of them as to where they were found &o. f " Now it is here admitted that when Kiry Monica's father diedi she was a child of only two or three years of age, and that her mother Dingiry Manica had left the village and con. tracted another deega marriage, and thai Kiry Monica- was placed under the guardianship of defendant's father •who held these lands. The Deeds could not have been in Kiry Manica' s possession after her father's death, and some proof is clearly necessary to show how these docu" tnents came eventually into her possession especially aS plaintiff in bis Libel asserts that defendant's father during his life-time neglected to give Kiry Manica any share o£ the produce of the lands,— thus disputing her title. There being no such proof, and the evidence in regard to Kiry Manica's father's possession being contradictory, plaintiff is non'Suited.'' In appeal set aside, and case remanded for further evidence and judgment de novo,—' " The Supreme Court being of opinion that the Deeds tendered in evidence bv the plaintiff are receivable, com - ing as they do out of the possession of the plaintiff and Intervenients who claim title thereunder." Gollective. Novemler 28, 1856. — Austin's Bep. pp. i8_5-i86. Kandy, D. 0., No. 12'jo'j. —South Court, — In this If one acknow^edgea case plaintiff seeks to recover from defendant who was another's title by Deed his nephew, certain lands which he states were given by he cannot afterwards him to defendant four years ago (1835,) "P°n a Notarial sa^say it. Deed (a copy of which is filed,) for assistance to be render- ed,but which assistance, plaintiff states, was never render- ed- Defendant denies he ever got the lands in question in such manner, and states that they form portion of his hereditary property j and that the Deed referred to was executed without his knowledge, and must have been " got up" with a fraudulent object. He further pleads prescription. The Court below was of opinion that plaintiff's witnesses proved defendant's right to the land in dispute, and consequently dismissed plaintiff's claim. On appeal, the Supreme Court referred back the proceed- ings for further evidence on both sides and judgment de novo- " If the defendant was present at the execution of the plaintiff's Deed and received the same from him, it would itself be an act, from which an acknowledgmept of a right existing in the plaintiff, might fairly and natu- rally be inferred', to bar the defendant's claifli by pre- Starkie Ev, p, 618. \ t Resooe's ev. p. 20, 68 KliNBYAN liAW or DEEDS AISD TKANSrBllg. scription. The Notary and Witnesses should therefore be more clearly examined, as to what was said or done by the parties at the execution and delivery of such Deed. Though the defendant's father and the defendant are stated by the witnesses to have cultivated the field in dispute* yet it would appear that they got the same from the plaintifi. and it is not stated on what terms they held them, possibly it might have been in Ande only, or for performing service for the plaintiff. Tho possession by the defendant to the Mool-talpot and the tax^receipts since 1836, are not moreover inconsistent with the plaintiff's story of having conditionally transfer" ed to defendant in 1835, ^^^ ^^°^ by the Deed. filed." Per Carr. August 31, 184a. The Court below then heard evidence on both sides and was of opinion, " that the plaintiff had entirely failed to prove any Deed of tho kind was ever executed, and that even i/ executed, the same was never delivered to defendant, and it must be presumed therefore to be in the possession of the plaintiff. It is indeed a suspicious circumstance, that after having executed a Deed, the plaintiff should have withheld it from the defendant assigning as a reason for doin^ so that he would first see koiv defendant would render him assistance. With the exception of the Deed which has not been proved, there is no evidence of any other act ly the possessor {the de- fendant,) from which an acknowledgment of a right exists ing in another person could fairly and naturally he injerri ed, — for the Court cannot consider that the mere delivery once or twice of some rice by defendant to plaintiff considering their relationship, amounts to such an act. Judgment for defendant-" In appeal decree altered into " defendant absolved from the instance." Per Oliphant. February i, 1844. — Austin's Rep. pp. So-^i. Deed [under Procla- Kandy, D. C, No. 18 135 — The Supreme Court ination must be sign- thinks that without hearing the evidence as to the exe- ed, not Bubacnbed. ^^^^^^ ^f the defendant's Deed, no decision can be pro- perly made as to its due execution or not. The Procla. ination of 1820 * requires the party to sign and not to sulscrihe, and a Will may under that Proclamation be signed by a Testator at the top 3 f and it would be sufl< cient also under that Proclamation if the Testator ac' knowledged his handwriting to the witnesses, as the * B«pealed by Ordinance No. 7 of 1834, which again ff»» repealed by No. 7 of 1840. t HiUtm V. King, 3 Lev, 86, fROa AUSTIN S APPBit MaPORXS. ^ mere act or Jactum of signing need not be repeated."^ P'sr Carr. February 14, 1847. — Austin's B^. p. 92. 13. Kandy, D- C, No. 4707. — Where a woman Deed once execut- executed a deed conveying certain lands to her husband, ed though nominally (whose rank exempted his lands from taxes and services,) *""** ^^ ***'* ^*""' atterwards endeavoured to set the deed aside as not being and intended to operate as a real transfer, the Saprenae Court considered it clear, that inasmuch as she had declar- ed to the Revenue Commissioner that the transfer to her husband was final and hey and the power of her reclama^ tion, it must be held binding upon her. If she intended to make the reservation now contended for, her ob< ject must have been to defraud the Government of the grain tax and road service, but the law would permit no one to avail himself of his own fraud, f October 8, and Becember 5, 1833. — Austin's Rep. p. ai. 14. Kandy, D. C, No. 656.— Plaintiff admits that Person executing » he is the person who granted to the plaintiff in a former Deed in favor of case, the Talpot or Deerf on which that plaintiff brought his f^?*^^^ «a';'»o* «'?«'; ,. , ,^ , , t ■ J ... 1. tarn an action against action for the same land as now claimed, agamst the same 2^ t^i^jf^ jq his own defendant. Uader the circumstances the Court below person, held, that plaintiff's claim was inadmissible, for having transferred his title to another, he can have no right to come forward and claim the same property from the defendant, after the person to whom he had transfer- red the land in question had tried his right and title to it by due course of law against this defendant and had been non-suited, against which decision no appeal was made. Claim therefore dismissed with costs and in appeal affirmed. Per Bough. August 14, 1834. — Austin's Bep. p. 9. ly Kandy, D.O., No. 2p9Si.-pneManickrallem prescription doe. 1838 upon an unconditional Ueed of Gift, transferred cer- not hold good in a !«• tain lands to his son, the present plaintiff, who thereupon vocable Deed, entered into possession and continued therein till April '^j7> when the defendant by virtue of a Deed of Sale to him by the said Manickralle dated February iSj7, enters ed into possession and ousted the plaintiff. Hence this action. The defendant's plea was the sale by Manick. ralle ; but the plaintiff in bis Beplication insisted that inasmuch as Manickralle had in 1838 parted with the lands, he had no right in 1857 to convey them to defend, ant, and that the plaintiff by his intermediate possession of nineteen years had acquired a title by prescription in Lemayne v. Sterling. 2 Ve«, 451, t Mar, Judg, p, 199, lO iANUrAN LAW or UEEDS AND TRANSireBS. terras of the and clause of the Ordinance No. 8 of 183 + . On the day of trial the Intervenient {Manickralle) was examined, when he admitted the possession of his son from the time of the gift to the date of the sale to de. fendant. Hereupon the Court below decided that the admitted possession on the part of plaintiff for upwards of ten years previous to the sale, had given him a title by prescription, and that the power of revocation which existed in a donor by the Kandyan Law, did not operate to the prejudice of such title- In appeal, set aside and case remanded for hearing, " The Supreme Court does not consider that the plaintiff has obtained a prescriptive title, as it could not be held that a Deed of this kind was only revocable within ten years." Collective. November 3C, 1858. At the second trial the Deeds on both sides being admitted, and it also being admitted that the Deed of gift in plamiiff's favor was unconditional, the plaintiff's Counsel moved for judgment on the ground of prescrip. tion. The Court below held that " plaintiff having an admitted undisturbed and uninterrupted possession for ten years and upwards, is entitled by law (irrespective of any Kandyan custom or usage whatsoever, such custom or usage not being included in the explanation of the terms adverse or independent as set forth in the Ordinance) to the benefit ot the 2iid clause of the Ordinance No. 8 of 18.34; ^"d that Manickralle had no title to aive to defendant, in that he had no possession of the land of any kind whatever for ten yeais immediately preceding the sale. Judgment therefore tor plaintiff." i:ii appeal set aside, and judg.iient emered in favor of defendant. "The Supreme Court having in this very case on the 30th November decided that the plaintiff had not ollained an adverse prescriptive title, as it could not lie held that a Deed of the kind referred to was only revocable within ten years, it now feels bound by thai dtcision, and cannot allow the same to be questioned. Collective,, June ay, ib6o. — Austins Rep. pp 218219. Deed if revocable, '^" Kandy B C., No. a.5308. — Plaintiff claimed grantee entitled to certain lands in right of her deceased father Kalooa, and compensation. complained that the defendant took forcible possession thereof claiming title under a certain transfer from one Garroo dated id^g. That the said Garroo knotving thai; she had no right 10 make the transfer, subsequently (in i85[) revoked the same by another Deed, in which she acknowledged the right of plaintiff. The defendant pleaded that Garroo was^ the owner and had possessed MOK Austin's amb\l reports. aI; Ihe lands — that the transfer was made in consideration of services already rendered and therefore could not be revokedi — and further that the Deed of 1851 was obtain- ed by fraud and collusion. On the day of 'rial plaintiff's Counsel contended that the Deed by Garroo. to defendant was revocable, and that Garroo had admitted plaintiff's title in the subsequent Deed. Defendant's Counsel main- tained, that plainiifE's claim was adverse to that of Garroo who was XM party to the suit, and whose admission could not bind defendant ; and that^ Garroo-'s right to revoke the Deed of 1849 can only be tried in an action between Garroo and the defendant. Neither party calling wit- nesses, the Court below absolved the defendant on the ground that plaintiff had adduced no evidence either in support of her titiej or that she was the daughter of Kalooa. " The admission of Garroo cannot possibly conclude defendant. Plaintiff was bound to bring evi. dence in support of her title as laid in the Libel. Even admitting that Garroo- had a right to revoke the previous Deed, it can in no way assist plaintiff's case, — as she can only succeed on the strength of her own title to eject the detendant from the premises in q.uestlon." In appeal set asi/e, and case remanded for a new trial with liberty to amend the Pleadings- *' It appears to the Supreme Court that the plaintiff may set up title either as deriva* ble by descent from Kalooa, or under the Deed of gift from Garroo, or both. Tlie defendant can then deny plaintiff's title from Kalooa, and set up the D^ed in his iavour. To which plaintiff can reply that the deed was revocable,, and was revoked; and the defendant can rejoin that such Deed was not revocable^ or that if revok- ed he cannot be put out ot possession without being repaid the expense of asl^istance rendered by him ; and that the plaintiff's Deed is void as being fraudulently obtained ; and the parties can join thereon." Collective. May It, 1853. On the next trial day^ no evidence was called, nor yet had the Pleadings been amended,. — the plain uS's Counsel persisting that it was unnecessary,, inasmuch as his client was entitled to judgment as they now stand. The Court however disagreed with him. " Tke Answer specially denies, plaintiff to be the daughter of Kalooa under whom alone she now claims, and since she calls no evidence to prove such title, she is non-suited with costs." In appeal affirmed. Collective. September 9, 18^6— Austin's Rep. pp. 175-176. 17. Kandy, D^ C., Xo. 8644. -Plaintiff in her Libel Deed for the whole- claimed onepda of land by virtue of a gift talpot from land w valid for a gar V • 2 ItANKTAS thVr OF D'BEM ANB' TRtNSyEB.g. her deceased brother- On the day of trial she admitted that her brother only possessed a half of the pela, but that he executed the deed for the whole; as he considered himself entitled to it, although defendant possessed the other half for a very long time. She however now relinquished her right to that half, and claimed only the moiety of which her brother died possessed. Defendant's Proctor objected to the validity' of plaintiff's Deed inas- much as it purports to convey the whole /l^eZo' for which this action was brought* whereas it now appears by plaintiff's own showing that her brother had no right to execute a Deed for the whole : and therefore if that Deed be invalid for the whole, it must equally be so for a pari of the land in question, and consequently the present ac* tion cannot be maintained even for a part, as no evidence can be allowed to be adduced in support of such part only. Had the action been confined to that part,, a different defence might have been made. The Court below over^raled the objection. ^ Although the Deed purports to convey more than the donor may have been legally entitled to give away, it may be considered invalid only for so mach as the donor had no right to transfer, bat cannot be taken to destroy the right which he may have had to the remainder. The plaintiff is surely at liberty to relinquish any part of her claim, even on the day of trial ; nor does the Court think that in doing so (especially in the present case) the defendant's position is at all changed,' or that he is less prepared to rebut a claim for a half than he woald have been for the whoU- land, the ground of action being the same. The evidence which plaintiff is prepared to adduce in support of the Deed filed, would not vary the terms of that Deed ; and although they proved it to be a genaine Deed for the wliole pela, yet that would be no reason why the Court should reject their testimony in support of a title to a part only of that land." In appeal affirmed. " It is now ordered that the parties do proceed, the plaintiff being permitted to give evidence as by the Court below ordered. Ic should be made known to the Practitioners that the 8u* preme Court will decide upon all inteilocutory orders of District Courts without reference to the assent of par> ties.* So also in Criminal cases of appeal." October a_5, 1837 — Austtn's Bep.pp. 38-39. Where Deed is not i8' Kandy, D. C, ^o. Mg^^.^-Smth Court.— clear intention must Plaintiff claimed the lower five Za^cM of a field of two pe/of be ascertained. . . * Groenewegen de legibns abrogatis,— Digest lib. 42, Tit. I. C. 14. FROM Austin's aepeai. repoets. 73 in the whole, which he says defendant sold him, and of which he states he had been in possession since the sale. Defendant admits that he sold plaintiff two pelas, but that the field in question is two pelas apd five lahas in extent, the five /aA(W now claimed being what he had reserved for himself. The Deed filed hy plaintiff says, " I hereby sell the land belonging to me, to wit the field A. of two pelas in extent." 1 he Court below was of opinion that from the terms of the Deed the defendant intended to sell and convey the whole of the field, and therefore called upon the defendant to shew by evidence that such was not his intention. He however called no witnesses, whereupon the Court examined the Notary, who stated upon oath that he understood the whole of the field to be conveyed, otherwise the wording of the Deed would have been different. Judgment lor plaintiff, and in ap. peal affirmed. Per Oliphant. Jfanuary 31, 1844.— Austin's Rep. pp. 48-49. 19. Kandy, D. G , No. 21401. — On the day of trial, the Notary who attested a certain Deed, was called as a witness for the plaintiff to prove the same; but defendant's Counsel objected to its being read and admitted in evi^ deuce, on the groundsi ist. That the same was not exe> cuted in duplicate as required hy the Ordinance No. 7 of 1834 * which was then in force j and i^ndly. That at the time the Grantor signed the Olah, nothing had been written thereon, and therefore it was not a Deed. The Court was of opinion with respect to the first objection, that although the Ordinance directs all Deeds which re-, quire the attestation of a Notary, to be executed in dupli* cate, yet it does not declare that a Deed shall be void by reason of its not having been so executed. And with respect to the second objection the Court held, that as there was evidence that the Grantor acknowledged the execution of the Deed in the presence of a Notary and witnesses, that was a sufficient compliance with the Ordinance. Objection therefore over..ruled, and in ap. peal affirmed. Per Temple. December %i, 1849. — Ausa tin's Rep. p. 139. 30, Kandy,!). C., No* 28620.— In appeal remantfei for a new trial to let in further evidence. " The Supreme Court is of opinion that further evidence may be adduced to throw light upon the genuineness of the sannas. This evidence sboiild relate to the language in which the sannas is expressed, and its correspondence with the style Acknowledgment of debt without Deed before Notary and witnesses, sufficient. Proof of Sannas, Repealed by No. 7 of 1840, 74 I.^.VDYAV LAV 07 DEEDS AND IBANSPBB6. in use in the like instruments of the same period ; and ihe opinion of learned persons skilled in the Pali lan< gtiage should' be taken on this point. It should also bi ascertained whether the description of the highlands by boundaries as given in this sannat was customary ; and comparison should be naade with other sannases of un> questioned genuineness. The evidence should also shovr in whi>se cu-tody the sannas has remained, and should account for the loni» delay in giving; Potice of its exis. tence. Costs to «tand over." Collective. January i&, 1860. — Austin's Bep- p. a 07. Section 8. (From Seven & Siehel's Appeal Reports.) 1. All Deeds of Gift for services rendered and to be render- ed revocable. — 2. Deed of Gift for a portion of the Estat» reserving a substantial share lor himself and his heirs is irre- vocable even without a clause of disinherison.— 3. Donee's death during donor's lite-time, no reason for deed to become inopera- tive unless revoked. — 4. Deed though revoked by donor after donee's death, when irrevocable.— 5k Taipot deed when admits of proof. All Deeds of Gift I. D. C- Kandy, No 28626 —Plaintiff by deed for services rendered bearing date August 1846 granted twro specific portions and to be rendered re- ^j j^^j ^^ defendant,, and in F bruary l8ji,- granted the vocable. ^^^^ ^^ second plaintiff. This action was raised to recover possession of the lands, on the ground that the deed of gift was revocable. Defendant consented to five lahas of the land being decreed to plain iff, but contend: ed that the other poriions claimed in the libel were transferred to hion in paraveni in consideration of past assistance. Edema for plaintiff. All Kandyan deeds of gift are revocable, and therefore first plaintiff has a perfect right to revoke the deed he granted in favour of defend, ant. Vanderwall contra. The deed has two grants, one for services already rendered, and' one for services to be rendered, and must stand irrevocahle and be looked oa as a bill of sale in respect of the lands granted for services already rendered. IV H Clarke, D. J., gave judgment as follows : The Court having carefully considered the first plaintiff's deed of gift to 4@fendant, is of opinion that it m ust be IflOU: BSVIN & SIEBSIi's AfFSAX RliPORIa. 75 Tiewed as one instrament, and that its clauses cannot be severed. The intention of the donor was to convey cer- tain lands lor assistance*' rendered and to be rendered," and the Court thinks that the distinction ingeniously drawn by defendant's Advocate will not bold good. Bu', even supposing the two parts could be read separ- ately, even then, the grant referring to the lands given for past services is only a gift and nut a sale. True, con- sideration is in some sore specified, but to a deed ol sale, actual purchase and actual payment oi money is essential. The det-d terms itself a deed ol gift, " deed of absolute gift," and such it is to all intents and purposes. That by Kandyan Law such deeds are revocable cannot be doubted, and defendant can seek for compensation from his revokini; donor who has revoked, not verbally but by subsequent deed. There is no clause in the pre. Sent deed specially barring the donor from revocation, but only the usual Kandyan form of renunciation of right Such appears lo be the law as laid down in Armour pp. i8o, i8a * Marshall 322. See also Supreme Court decisions in Kandy D. C. 21344. ^nd »2504. The decree theretore must be that the isi plaintiff as donor, and 2nd plaintiff as his last donee do have and recover the lands claimed i:i the lib^l ; and that, defend- ant do pay plaintiff's costs, so far as they were incurred subsequently to November i6'h :8jj, it not; being clear that defendant knew of or was acquainted with the re- vocation. Against this judgment the defendant appealed on the grounds: (i) Consideration for past assistance, and the deed coniaind two distinct grants. (3) The author- ities cited by Court did not establish the rule that a grant of this kind is revocable (3) The intention of donor is so clear as to exclude his right of revocation. (4) It would be inequitable to deprive defendant of ihat portion granted to him for past services without com. pensation. In appeal affirmed, (a5th August, 1837) The Supreme Court fecis iiself bound to lollow former deci- cions which establish the doctrine that deeds as well for services pi eviously rendered as for those to be rendered in future, are by tue Kandyan Law revocable. (See Kandy D. C. 2240+ and 21344 (*5'h March, 1S5 ), 23886 (i2ih September, 1851), 21.318 (31st July, 18,4). H253 (Badu||a5ih July, 185+;, and 44171 (30th August, 1844).— £«;. & Sieb. Rep. pp- 32-33. * Perera'a editum, pp. 91-93. <0 KANDYAN LAW OF DEEDS AND TRANSFEKS. Deed of Gift for a z D.C Kandy, No. 33108,— The plaintiff claimed ^e^'^r'wn? a':„bBtt: T Y^ °' "1^'"" ''"u"' ""l P^'u^^l' inheri.aoce. from tial share for him and J.^^ Appoo, alleging that the other half belonged to her his heire irrevocable, sister, the ist defendant, the other defendant being mar' even vcithout a clause ried out in deega and having forfeited her right. The of disinherison. ^gt defendant pleaded a deed. A., dated lath November, 1853, from ber father ; and the 2nd defendant a deed B., dated 22nd September 1856. Smedley, D. J., held that the deeds were bad for want of a clause of disin- herison and entered up judgment for plaintiff. In appeal the judgment was set aside, and case remanded for a new trial, " to ascertain as nearly as possible what pro< portion of the grantor's estate was exhausted by the deed A. Was it a.'!, or nearly all, or a half, or a third ; or was it only a trifling part ? Similarly with regard to deed B. How much of the estate which Jay Appoo had on the day of that grant was comprised in that grant 1 If the whole, or nearly so, 01 a half, or a third ; or was it only a trifling part ?" (i8th July, i86i.) At the second trial Berwick, D. J., found that at date of ext^cution A., Jay A ppoo's property was of the value of ;^3 8 5, and that by deed A. he transferred pro< perty of ibe value of £260. He therefore held the deed A. valid. He further found that of the remaining pro- perty north £i3S> ^^ transferred by B. lands worth ;£64, leaving property worth £61 to himself and heirs. As this was a substantial and not illusory reservation, he held deed B- to be valid also. He states in his judg. ment ; *' it does not appear that the distinction between a total disinherison (or what is the same thing, a colour, able but illusory reservation of property) and a partial disinherison had been presented to my esteemed prede< cessor Mr. Smedley in argument. But if it were so, still I have no doubt that the Eandyan law recognized such distinction, and that it is only in the event of the first case that express words of disinherison are required in a deed of donation to a child. My own views on the point of Kandyao law quite concur with the views expressed by Mr. Murray, in his judgment in Kandy District Court esse 33379." Plaintifi''s case was dismissed. In appeal affirmed. (20th Movember. 1868.)— Sev. & Sieb. Rep. p. 146. Donee's death dur- 3. D. C. Kandy, No. 61455.— One Durealageder* ing donor's life-time Fonna, granted certain lands by deed of gift to his no reason for Deed to second wife and to his daughter by his first wife in equal unles^reyokeT shares, partly for past services, and partly to ensure a continuance of such assistance daring honor's life. The second wife died a few years before the donor, leayipg PEOM BEVEN & SIEBEL's APPEA.L KEPOETS. 7?) f>laintiS her son and sole heir at law who became entitled to her share o{ the lands Defendant maintained that inasmuch as the second wife predeceased the donor and the conditions of the deed were not fulfilled, the share of the lands gifted to ihe second wile reverted to the donor and on his death descended to his daughter, isb defendant. FanZangenlerg ioT plaintiff contended that as the deed was unrevoked and the gift was to the donee, her heirs and assigns in consideration of services rendered for a series of years^the property should pass to the donee's., heirs, she being dead. The principle was clear from the decision of the Supreme Court in Matale 0. /?. ipjj^. Legal Mis.p, y 8 Civil Minutes ijth November, j866. Eaton foe defendant urged that (_i) as the consider., ation was as well for services to be rendered, the death of the donee before the donor rendered the deed in« operative! (2) The Matale case did not apply, as the. decision there proceeded upon other grounds^ The District Judge CA- C, L,aw'rie)..,dismissed plain, tiff's action on the ground that the deed of gift became inoperative by reason of the donee's death during the donor's life-time. " Under. the, older Kaodyan law no. one could claim under a deed of gift, who had deserted the grantor and failed to render the cont.emplated,assistance up to the day of his death, for, a deed of gift was looked on as a quasi contract in which, on the one hand, the; donee tacitly engaged to render assistance for the rest of the donor's life j and on the other, the donor rewarded such care and purchased its continji^nce by a gift of land accompanied with imme.diate possession, but liable to be revoked. I't naturally followed that on the occurence of any event which, made it impossible for the donee to render further assistance, whether that event were deega marriage, death,, &c.i the gift fell even without a, formal rev-ocation against donor. It seems to me that this is a safe and reasonable rule to follow in all cases where the deed is in substance, and not in mere form, ai deed of gifi. The Matale case reported in the Legal Misdellany ioT i865p. j8, is not an authority on this point., Ihe issue was whether the deed of gift was valid without a clause of disinherison. One of the Judges suggested that the husband was his predeceased ■wife's heir, but no one seems to have raised the question ■whether the gift lapsed-on her death. Perhaps the terms of the deed excluded that. The chief difficulty I feel ia expressing an opinion which may be applicable to other eases is that deeds of gift are often virtually wills. 78 KANBTiN tick m DEEfiS Alb' TRAiJSFilKS. eXfitdted on death bed; where'thefe 'is no "feitpebtatioti W fiifthef assistance', and no intention by- the grantor that the 'deed Bh^t take effect befdire his death.- ' I arfl hd; sor^ ^heither iei such a case the rule I have spofceti dl' ■would' with propriety be adopted. Imag^ekhe esse tbat iti' some!- titive 6i epidettiic & iath^r attd steveiraPof hi^ faniily were ill, and he (or the aotary) preferred to jfraHt* tb-hirctiildi:eri^ve!ral' flefeds of gHt ¥fi tteiMtratfon oi asSistanSB^- ireddered Snd to be'rendeVed,' rather tba'h btt©- tefstaiiient afld-'tbafbhe! of his family^ -predeGeSSed him" by d few hotirs fed^ihg-childreo, ' I shdiMd heSitaie iit Strch a case to say 'tbSt ihs gift had' fallsnj-'ilncl waS-ndS'^vSiMw ble for the- predeceased childrea, becaastfi shbiiiapr&a.' sumifrthatlt-wS^ hl^ the dcydbPsmtentidn tlfet' iV-sheBiA so fall, not-beifig a personal legacy wbitife bferdBneid- with ital Conditions. - In the present cise, the deed seShas' to be really- a deed -of -gift for assistance^' and that the gift ftll' 6n the- 'jJredecease of- the grantor's wife. It- do not feel much cRfiiciiltjs from the clause^' and when J a'ai not, the ^d'^fflWijl>an^'S*wt the said two persons Sarangee and ©btee^or their descendants and heirs wl»omS0eve# ai-e hereby empbwejred to possess unintei'ruptedly firf'eVet as they itfay please,^' Kecause I So not read this as a' sub- stitution bf -faeirS of a-^briee: who -'shourd Vappen* ■fo-pf'ei decease.' - -Fffeaditaij Shev^ingttiat after the-dbBSr's de^lB the gfift Was of JtHte fee- i>f the property and riot bf ia ib^ Bfe-rent^" -'■ r '':' ..■'";.;■;;/ '' ' 'J^^^^i^r '■"■^•'■'--^ ' The plaipCiBT append oh the'griteds :— i. Thai on a caret lil peirnsal of the deed -wKfch 'Was liotrevoke^ by the^ dqiioV, it Would appear that a half share of" tEie lands was, granted to Sarangee in consideration "of assi^j ^ance that ba'd.been rendered for a period ^pf .26 year? anterior to the date of that deed/, and^ for assistaricejo.b^ rendered. '2." That "the grant was hbt personaLto iJar|n- gee, bttt wa§ agr^ant to-her,. her desceiid.ah'ls^ and hfiirs} and the appeljah't" Was therefore en titled t'p Judgmjetit \a terras of jtjie, Se,ed for a. half share of tli^ said lands cla'inj^ "ed by hi'm, inasmuch as/; the. ap/^pr by hoh-jeybqatlpn^of khe deed, cleariyjritended that tlie. proy isipn therf in sh^i^ld be jEuUy carried but," ,' V, - V. ^^ j,.:,, / , / . ' V'\ ,', 1, in' appeal -i^faij^e. and cas^. sent ba.ck for,;iurth^ ji^iagi-iatljefpliowing-ternif: '(JPer^ R::6f%i^<,,^-\j\ r Thei plaintiff claims under « deed -qf gif t ; 6X^*^ bl^OO, ^o^eteTniine'.j.fpTj.thptigh he lived, three. y.ear_s attef-'l[||' fife's deathj;he\neyer,att!empted to exerajs'e.sUcn po<«'i^.' Th^ gift does.nat appear to us fo.faljprepisefy iihctef aliy of the cases mentioned in P«r«ra'j.4''mo«r, p. plj^where cirputnstances under .>vhii:h,a revocable deed becphies, hull and vaid are set forth,; arid wre are not disposed, withp.Qc «xpress authority, to press the operation of Kapdyail'laA*. any further in,this.directiori> part.tcula.rly ih caseS; wher^ the donor ;bimseif,jipes not appear to have.iptetlded atty^ jevocation- ,trf the beiiefit \vhich he expressly conferred upoQ his wiife aodrheriieirs and descendant^._ The case^ iX-seBtiajbtLforriiwEtfoj^eatipg, in orde'r;:tP ascertain Xd^ l(t,hafe^g5epii^3^t^ plilntlf .iaentitfei^ .'jT^ gr£mt&5:ertaia=pypperty;, tp,|fie glajptiff^ jnojihei' and th^' ftist |efeRcJai{t Jo'intljjbiU thepjapti^^^^ gpep,i^,5fK!5tipi^s-'flf . some of^^^e ,. ,lfl|>«lf »i 4?n4 ^-^1 i.^ a*??,.'^--^! ^««¥ril*9\i3,4'Z^'i^l^^cB/€S'M^g?fo'S^ Deed though revok.- eer^ainclan^Si.ta l^is^,spa,C3lopfl§^^% Je|, ij;;y>^^^^ ed by donor afte. fe4fbr^^tiop.^f^a#^,„The^defet^daatf,hjsw^^^ frr^rocabt ' " §i»}4.reB»j ^maiPe^. ift jiQSSessiog.,'^! ^jtlje. la^ds^ .T,he 9lm^&,r^\!fiTtly,b^9T^ ^ctipn brp^^hVjeyoked Sfij ^^|d, 3;he n%Viea^qPfJt9?. ^cision ,^6,^0,^ ffrs|^ wfe^h^r the !d«(s4 J WMi ?f§V.oc9hle, ,apd, seeond^'j,^fl|t'WrJ f "JR ; Wf^f ^tmMl nt^ : ppescrrb^i , ,agaio3> p!FP,^'i|^. -,.'P^f r f*?!? fe»wieg4i%*he, JH,4tnep t ,pt, SmedUy, ,:^. X lp;ffiS|'case tbe iStoflee rJScadnaitted.jto liavq.rD«en,<^att^«orWU^^^ Urfiar^fcSftjthst^iMgff, lfis,,Jepthr prescription j^ptild, in -alj ordinary cases have run iniavpi^rof defepdaiitSj,and.eyeii ral rule are revocable during the life or the donM*-! Ijav^ atrfttif?, doubts, .whether _in such a case as tfee ' dreSeCit, ,\vhether .in such a case, as the > pf eSent, ■this _^^ hi i^ lt^iiayan"lSv^ the deed in question is noii a j^^vpcabl^e.deed.^ ^ -^ ."■ p(J KANDYAN LAW OF DEEDS AND TRANSPEKS. The d3ed itself sets forth that the plaintiff gifted the lands to his son, under whom the defendants clainii in consequence of his having " proved himself most obedient and dutiful." In plaintiff's examitiation on 4tfa January i8j7 before issue was joined, and which Jmust therefore be taken as part of the pleadings, the (plaintiff explains the circumstances under which he was induced to make this to his dutiful and obedient son in the following words :— " I gave these lands to him because I contracted a second marriage." It seems to me that this explanation in no way alters the consideration as set forth in the bond. It only goes to say, — " My son being dutiful and obedient, I gave the lands to him, as I was about to contract, or had contracted, a second marriage." The consideration still remains dutiful conduct and obedience i but the reason why at that particular time this gift was made, is explained by the plaintiff in his examination. The Kandyan law says — " If a married man, having resolved to contract a second marriage, thought proper to provide for the maintenance of his wife and child, or adopted child, and did accordingly, previous to the second man iage, execute a deed transferring thereby a portion of his lands to the said wife and child, snch deed shall be irrevocable.*'* It is true that the plaintiff ia his examina^ tion also says, I cannot say whether I gave the transfer before or after the second marriage; but this is not material, for it is clear that it was about the time, and ia consequence of the second marriage, either contracted or about to be contracted : and looking to the nature of Kandyan marriages, the mere ccrtiducting of a woman to a man's house in diga, or the man going to live in the woman^s house in iina, if the mati himself is unable to State whether a certain act of his own was done before or after the marriage, it is scarcely within the range ot possibility that reliable evidence could be adduced to fix the precise date ; but under any circumstances it would be proof for the plaintiff to adduce, and not for defendants. I am therefore of opinion that the deed upon which the defendants found their right is an irrevocable deedi and plaintiff is nonsuited with costs. In appea\ affirmed (29th October, 1861).— Bet;. ^ Sieb, Rep. pp. 114- 11 6. Talpot Deed when S- B- C. Kandy, No. 19487. — In this case the Dis- fldmits of proof. trict Court considered that defendant was not entitled to go into proof of a talpot dated June 1836, filed by him * Percm's Armour , p, 96, "FROM THE LEGAL MISCELLANY. 81 \tf\(h his answer as his title to the lands in claimj inas* mach as the same was not notarial, and therefore invalid under the provisions of the and clause of the Ordinance No. 7 of 1840, which was in force at the time of its alleged execution. On appeal the judgment of the Court below was set aside and the case remanded for hearing, the Supreme Court being of opinion that it was open for the defendant to prove his talpot valid under the 7th clause of the Ordinance (31st March, 18^5.)— fiey, isf Sieb. Rep, p. 5. Section 9. '{From the Legal Miscellanf.) i. All Deeds of Gift except to priests, whether conditional »r unconditional, revocable during the donor's life-time. — 2. Deed of Gift from husband to wife for a niOiety of his estate, irrevocable after his death. — 3. Clause of disinherison not in- dfepensable where a portion of the estate is only gifted away. — 4. Deed of gift from husband to wife requires no clause of dis- inlierison. I. Matala, B. C. No. 4271. — The grants filed ap- All Deeds of Gift pear to this Court to be Kandyan Deeds of Gift, which, ^^^^V^ to priests, excepting those made to Priests whether conditional or ttZn^^^X unconditional, are (like Wills) always revocable by the vocable during the do- donor in his life time, and are often made in contem- nor's life-timei plation of death 5 but such grants differ essentially from Last Wills or Testaments in respect to their transferring an immediate title or interest to the donee in the p'ro^ perty thereby granted : whereas a Will does not take efiect until the death of the Testator. ITntil proof on both sides has been gone into as to the execution of these Grants> and it be shewn whether they were deli* vered or not to the doneei and whether the donees were put into the immediate possession of the land granted thereby, this Court cannot, in the present stage of the suit, give any definite opinion as to what is the legal effect of these deeds.— (C) August 20, i844-— i.e^' Mis. P- 373- Ratnapura, D. C. No. 8 142. — It is impossible to reconcile all the decisions as to the revocability or non.> revocability of Kandyan deeds 5 but the Supreme Court thinks it clear that the general rule is, that such deeds are revocable, and also that before a particular deed is held to be exceptional to this rule, it should be shown that the circumstances which constitute non.revocability aispear most ele^ly: btirtfaecfacei of ?the deed^i^sdifi : Tllar words in'the-pt'esent deedias-toseryioes; l" ,:Q0Bii\asg:4 , lo- be ifftadgfedtisy the nJanee"; do not appear lo the SiaprtsBis^ ©ouit to" be -'aiifBtaently: ■ cbarsiaad strong.. iJa^J- i9V. iB66y.-^Leg. MUifpiii^^i^.^. ::■: s. .-- ..rrzs if.' .j Beed of Gift from •' '6.^ - Cmomda.&iC-'Mo.i.oi&^.'r-tPhiaUS'siAamtO: liusband to wife for a tteniofet)*, wbficb IS proTedrtn tavebehon^difea^her^aliR.: tnoiety of his estate, hUsband, is^lso ^ptportedtby dhevDeedof 0Ht irofflij deX htih/*bid».v?asVQia3bMia;hislifeq.dbtrashefeasdied: without any revocation of it, the gift can,;bes,sitsAii;ie(l^ See Burge, 275. Grotius Int. i. c. 4, "s. 6, p. 384. V. D. Linden, 214. ^ The objection to the want of stamp is waived j and the 8th clause of the Ord. v^eijoii of 1844 cannot apply to the plaintiff's claim under the Deed of Gift, because, upon it) herifight has aol ak:tu^ aSiyevisee^'heir-at-law, or as executrix or administratrix. — (C.) November i8ja. Leg. Mii. p. ^4f^ ■-'/ y '•- -:!•'; ■ -■ ■- !•'-■-:" - -'. - Clause of disinherit '.. ' 3, . Kandlj.'i)^ G^. ''^iS>:l^^Xp-—^\\\s}iss^..M^^ Bon not indiypensable ua;to fall within-llje-priiiqipte o£jJUfr}^t;:f^wxt\bt KqMy,^i where a portion of the j^ . 33 4 4o; : dedded: itt.rtAft .Supreme '-Cskri : en: tM ^d estate .s only gifted ^fe^^e^^-sdj? ^^-^-^^ .::v c: L, ...z :.;- ::^1. i.^ * Jt was there laul down, that a clause of diSiifliMi' ' i - '5 ':'/ ' . .'\ . S'oitf, was riof !ifilispen's|ble ^here? tfi'e Seed' =^fv^s a\#ay a ]'.' . ' . ^" ,/,.V,'^! ,1 pbrtioh onlybf thedbndr's.prqpferfy j'-and^e 'thin'k' ttta^: - ^;" - it appears frona" the -facts before ijsnha?^ a^ -portB^' iJnljP ; : . • .-^ :. -- ■■-..:■/ of the donor's property was' givW -'in tins x;a8e.-=Aa3' ■'--"'•'-■■■ ■ -- jiidgmerit entered f or "th§" - defehd'ant ' and' appeHant!?' Greasy, G.y:;-and TknipCe^ J:'^ 0 pf-iuKsiQh&ison. Jsrinoier p. lo^Seei 11^ c; :s sc-'i.'ioeb vc'.* i;,- c-ibncie'! J' ~\TmKple,':^i-1hA dories Sar,tbis^E(5kseoba«rt^opTes ideceSased:' the donors, did notietiieriacqdiredE staadedipriiit. fjerly^f th&wife descend; ?td.stifecJiatoBdf'-asoiaT thd caserief iTiridtfeafalesi ?] ' L. ; ?i".' rj Is-oij-r-rT^ c-d oJ fo-'si "■ '»lEBidMfaSrfsi«i-Thei wife's ia<%tH!ed iaml^, propeiiyi descerwiisutoiigr i^ldtemia-lptesferend; to her husttaod. . '' '■jfitd^^m0itt 5«'et>aBidft: ; and : .}adgmentv-i!Q.teced:£oi;' [ilaintiffi fdr tfae 1811410 qaestion^-'togetlKti.wiih .costs q£ ^tV ' l!hee6 was'-mrmecessky: ;fac bhe :clatts& of jdi^intt h6riso»i»:^eedeed- ia fayoc of ialu; Memca* sbs'i beiogj thiB':wtfe..-»f-'Gattl3rale..::.ti- uao -';.:... -%; -vr..>.'.;*M? ■■i-.',t '^ :See:^r9(»'0u»' jt>.: 1^9,' aadJ'tfrwa'j; ilrwottn />■*: ci94« rptettJ^i C.J, ,• ^e»BpZB>..^.. andS'/aat'aEfe: J?'.;, iftrQi'«wfer: ij* l8<56.ii,e|r;.^jy,3S^. jfSi 79. : ..:;• ;: -^ :. ; -- ; : ;,:! SEBTIGNnO. - ^'.-' '"■■ . (F'rom 't,brenz'"s Appeat Reports J . ■ i l.'.U3 , ; j> . .,j_- ...^ feanaySa- Deed 6f Gift thbtigh bototaiaing^a olausa renouncing the right of revocation, revocable. — 2.- A Kiuid^iili ZteediSf'^iftt'kL doisidaraiidn «f ^sBtaud Mt^e seryicea, with ai:ei}9ni;1atiii9j,,o£th«,fi^| of re.voeE(ti(^,-JBtrrevoe^l^ • j. ; r.:, 'X • ^^ ^^' k: "^'t^^ ''*?^^**r^*'' ^®!: ^f o*^* A KandyanDeed of plamtfift seated -in' her Libel ajat shej 'bn tbeCth-Sepi Gift though contain- fctnber: i'S^4v- by ©e6d' oi-Gif t, transtefi-^d^-^ertaia latfdS ing a clause renounc- tdtHe defeiiaaafi (being ^ her beeHa-maiYied bQSband)'j ing the right of revo- wbieh^ged *&e'iift^J*ar«fe? bti-'-the a5th i^priC 1856; cation, revocable. t^bbl'fyrdVbBed^-' Thedefendant'ki kis^ Aiiswer pleaded th^tt&e' |il&4at4ir had ^y the same' deed of the 6th't$j^p«i tenJberii85%, r*nounc^her:n'ght-'Gf "revoking tlie- giff^ as^eH^s-Sefr right by-Kand^;^ 'Law " to^aket, Cancel or Wrgak" the satne-j'^aijathat ths deed- with thei"4tnow» ledl'e'of the plaihtiff' tad ^ be^U -4e^0sit6d'- in- the Gut. xsheiry ft* bis^'deB**."'"'*" '■'- '■"V' : :.' v ; >'. :r.>.. i :•.•: tmi "On the a(?tt''Novi»ihb'er i8i;?,4>ef6re "'21 QiPaHifer, A; D.- J.*}- WnderimB- for the plaiintiff subgaitted- that trpoA'fhe'p'leadHa^Sy'and a<:cbrding Id th^'KaSdjfari-liaw, the plSffilSff-^as'-en^itle'd 4o 5ud|;*''eat. 'FerSnMHh Prec1di*'foriiBe aefenaant,- uifea that the* lSindyari'Ls# being '^ent 6^-'th^ questid&^ai^gd iti'^he present ^s^» ffefcofi^SS'nsist Bfe-liSdtd the^-OiVft^ i,^ j aad -tliat'^hfe de&ff,"*ioii«tiJiBg, asit ^Jids a ifclauSe^y^hfci&i thte»'aottV» T^bufacetf^all'^ghe^o rdvoke'the '"gifjf^-^niaslf" bte'^held to ■ ' ■ - ■ The judgmfenft dftte'GoBrt Below was as folloi^^si— ■^T:r ''Tf-ntbi cioart iJM'S^Dtoa that the K-aridYai iLa_wjs •eofcateBfegas B^ardsi tbe-qHestJoBrHiosir raised, and re- *Perera,'3 Edition, .,«ji" 84 KAND?AN LATT OF DEEDS AND TRANSPEKS. course must not therefore be had to the Civil Law to determine it. The Kandyan Law is that '* all Deeds of Gift, except those made to Priests and Temples, whether conditionai or unconditiooaU are revocable by the donor in his life time." Armour, p. 179 *• It is true that there are exceptions to this rule, and some deeds, other than those to Priests and Temples> are irrevocable ; but the exceptions are expressly mentioned by Armour, pp. i8o-i&i;f and the deed of the 6th September 1854. cannot be considered as forming an exception, it being simply a deed of gift from a wife to her beena-married. husband, which she has the power of revoking when. ever she may think fit. The Court considers that the plaintiff is entitled to judgment j and it is decreed that the plaintiff be entitled' to, and quieted in the posses, sion of, the lands in the Libel mentioned ^ and that defendant do pay costs of suit." Against this decision the defendant took the pre- sent appeal. Morgan, Q.A. {Loreaa with him) for the defendant and appellant. The District Judge holds that all deeds of gift in Kandy,. whether " conditional or uncondi- tional," are revocable- Bat if the clause of renuaciatioa was valid, the plaintiff could not revoke. A pecson may renounce any right which the law allows him to exer< cise. [Sterling, J. A power of Attorney is revocablq^. unless coupled with an interest-] That goes upon a different principle. Here,, by the Kandyan Law, certain deeds of gifts are revocable ; that is,, the law allows a donor the right of revoking a deed of gift» if so inclined; but here the donor by express convention renounces the right. The Kandyan Law is silent as to the effect of renunciation. Now the right of revocation is a right inr troducedi for the benefit of the donur ;. nothing can compel him to revoke. In all cases of benefit by the Dutch Law, the party intended to be benefited may re> nounce. So in English Law,, notice of dishonour may be waived [Steeling, J. A wife may renoance her right to dflwer or thirds..] See also Y.. d, Keessel's Thes. 264, 2 Barge, 147, A debtor may renounce the benefkium non numeratiB pecunice ; sureties the lenefidg. ordinu, divisionis. el excussionis i and all on the well-known principle Unicuique licet juri pra se iniroducto renundarfi I Pothier, 263 ; Chitty on Contracts, 570 ; Phillimore on Jurisprudence, 57 ; i Burge, 234. So suitors may • The citations from Armour are fromthefirst edition.—* Now see Perera'a Armov/r f. 90. + See Perera's Sedition, pp, 90-93, tftOM LOEENZ'S APPEAL EE^OMS. gS Bgtee to give up their remedy in Court of Law by a re-» ference to arbitration. It may be different in the case of a public or general law, which is binding on all, and cannot therefore be avoided ; but the present is a private right) not a public law. Armour says " in certain cases'' you cannot revoke, [Temple, J. referred to pp. 179, 180.]* In all cases, whether of assistance to be ren- dered or not, and whether the assistance has been ren.* dered or not, the deed is revocable j but 'yrhere the clause renouncing revocation is superadded, the deed is irre* vocable j clearly showing that it is the renunciation clause, and that alone, which renders a deed revocable* Rust, (Yanderwall with him), contra. We have to deal with exceptional cases. This is a voluntary conveyance. Till i8ai even an absolute sale was revo- cable. As to the clause of renunciation, ic has been de- cided in No. sj.ai;, B. G. Kandy (8th June i8j_;)j that it does not take away the donor's right of revoking. See also No. 23,886, B. G- Kandy (lath September 18 ji). The words there were " neither I nor any of my descendants can dispute the said gift either by word or deed, and the said donee can possess as parveny property." In No. 28,626, B. C. Kandy (5th August 1857) the words were " absolute gift — in future neither I nor my descendants shall make any dispute in word or deed, bat it shall be possessed in parveny posses- sion." The question of renunciation was expressly raised in the Petition of Appeal j yet the deed was held revocable. See also No. 19,064, B. G. Kandy (12th March 1846). [rBMPLB, J., cited No. 14,253 D. G. Badulla (5th July t8j4) J and No- 4.271 B. G- Matale (aoth August 1854)]. Morgan in reply. In 19,064, the words are " in parveny, aiid neither I myself, nor my descendants, shall dispute, and even if such dispute be made, it shall not avail/' This is the ordinary clause in all Deeds of Transfer in this country, and imply no renunciation of the right of revdbation. But the words in the present case c($ntain an express renunciation. Besides the clause that " I shall not dispute," there is a clause that " I shall not break or Cancel<" A dispute does not amount to a Catocfellation. In none of the other deeds now pro- duced does a clause similiar to the onp in our deed occur ; in none of them is there a word about " can- celiitig or breal^ing." In 19,064 the right to renounce * 8ee Petera'i Armour pp, 90-95< Ob KiNDYAN LAW OS DEEDS AND TKANSFEHS. was not brought into qnestiou. la 28,626 the Dstricfi Court did not put it on the ground in question ; on' the contrary the District Judge says, " there is no clause fa the Deed barring the right of revocation, but only the usual Kandyan form of renuaciation of right,'* viz. " that neither J nor ray descendants shall make any dispute ; that the donee may from generation to gene' ration possess for ever in undisturbed parveny, d'ling whatsoever he pleases." Armour is only a collection of eases,- but as the cases are put by him, they support our position. All gifts are revocable, whether given for consideratioa or not. The only question is, whether the donor has barred himself from revoking. Sed per Curiam- The judgment, of the Court be- low is a-ffirmed. — Lorenz's Bep. i8j8 Fart III. pp 24. 25, A Kandyan Deed of 2. Kurunegala D- C- No. 13,801. — Libel: — That Gift in conaideration the plaintiff, being seized of certain lands, did in 18 f8, of past and future ser- ^vheQ about to join her second husband in the Seven ciation of the right of ^-orles, deliver the lands to the defendant on a deed, revocation, is irrevo- to be taken care of, and the produce to be accounted for cable, to the plaintiff; — that she has since discovered that the deed was a deed of gift, though at the time of its ese« cation the plaintiff did not so understand it. Prayer,— that the defendant be ejected, &c. Answer • —That the deed was a deed of gift, and the defendant possessed the lands thereunder, aud was and is ready to perform the conditions thereof. Replication: — That the plaintiff was deceived intfr signing the said deed and being now dissatisfied there< with, it should be declared void. [ The deed in question, after reciting that the donor (plaintiff) had received assistance for three years past from the defendant (her only son), that he had paid & certain debt of her's, and that the , plaintiff expected future assistance from him, gave the lands to the de- fendant " to be possessed finally, as parveny.property,' and provided " that if the donor should ha {open to leave him, not being satisfied, he should (for the abovemeO' tioned consideration, and for the future services also, calculated at pd. a day), finally hold the said lands."} On argument at the trial, no evidence being called on the part of the plaintiff to prove the alleged deceit, the Court,below pronounced in favour of the deed, as a deed of gift, and gave judgment for the plaintiff. On appeal by the defendant, /)iaj for the appellant. The rale has never been questioned, that a Kandyan deed of gift for assistance FROM RAMANATHAN's APPEAL EEPORTS. 87' is revocable ; even where the donor has expressly re- nounced the right of revoking it. No. 29,890, B. C. Kandy * [Sterling, J. In that deed (here was no mention of future services.] The present deed assesses the value of the future services, evidently in view of a revocation, should the donor choose to exercise her cora- raon^Iaw right. [Temple, J. The words of the deed seem to amount to a waiver of the right of revoking. Sterling, J. The intention of non'revocation is clearly expressed] Marshall's Dig. 320 ; No. 24,^18,!). C. Kandy, gut Jfuly 1854 ; No. I4,'JJ3, D- C. BaduUa. Lorenz lor the respondent, was not called upon^ [Templb, J. The case fails directly within the rule laid down by Armour p. iSa.t Put an extreme case,, of a large sum of money paid by the donee on the faith of the gift. Cap the donor, in the teeth of the clause depriving herself of the right of revocation, take back the lands ?]—ior. Rep. i&jS-iSjy. Tart III. pp. 76-77. Section 11... (From Bama Nathan's Appeal Reports.)-, 1. Id a Kandyan Deed of Gift the disinheriting clause iai not absolutely necessary, if the intention of the donor is clear. —2. Clause of disinherisen is necessary to disinherit the legat heir. I, Rainapwa, D. G. No.. 10,690!. — Plaintiff, bys, In a Kandyan Deed right of inheritance from his father and by prescription,. Ta ^ckus^? l^no^t^ab" claimed certain lands which the defendants were alleged, sofutely^neceasary* if to hold forcible possession of. the intention of the Defendants denied that plaintiff was Setuwa's- """"^ son, or that he ever held his shares, and further stated' that the said Setuwct left no issue by his wife Ukku, to whom he gifted by deed all his shares to the land in q^uestion,. and that she adopted the defendants, and they- pleaded pres^criptive possession. Plaintiffs joined issue on the question of paternity.- and adoption, and avojdedtbe deed of gift referred to in, the answer of the defendants, by contending that, as- there was no special, clause in. it disinheriting hinx nothing therein should affect his right. * See ante, p. 83. t Perera'a Mdition, pp. 90-93.. CP KANDTA.N LAV OP DEEDS AND TRANSFEES. Qn evidence, it appeared that defendapts were t^^'i nieces^ whojn she adopted, with no ceremony' whatever, but simply took charge of them and brought them up. Plaintiff clearly proved that he was Situwa's: son by his first wife Bingiri- The deed of gift recited "nether I, nor ray heirs, executors &c. or any other person whomsoever shall in future dispute the validity of this gift." ' The District Judge (J)e lAvera) dismissed plaintiff's claim, holding that the deed in que.stion was valid as against the plaintiff, although he was hot expressly de^^ clared to be disinherited, and cited Perefa's Armaur, Ch. 6 sec. 7 and 13. — {pp. 96. 104.) On appeal Grenier appeared for appellant, layari for respondent. Gur. adv. vult. The Supreme Court held as follows :— Affirmed. — Plaintiff claims the land in question as of inheritance from his father Setutva, who in. his libel he alleges to have died about twenty years before suit. Defendants have traversed the paternity. On this point the District Judge's judgment proceeds on aa assumption that plaintiff' is the son of Setuwa, but in the view we take of the case, it. is unnecessary t^t we should' proceed upon that issue. After plaintiff's birth, Setuwa married Ukku and exe- cuted a deed in her favour, the execution of which was, admitted, and which, if valid at all, took, effjsct as a deed disinheriting Setuwa s heirs. By this deed Setuwa gifted to Ukku, " with the view of receiving from her future aid and assistance until my death," his land of paternal io' heritance, adding " all these aforesaid lands &c. have been hereby gifted to the said Ukku, consequently neither I nor my heirs, executors, administrators or assigns or &ny other person whomsoever shall in future dispute the validity of the gift.'' Ukku died about six or eight years ago, and defend- ants, who appear to have been in possession since her death, allege th^t thpy were adopted by her. The adop^ tion is traversed by plaintiff, but in the view we take of the case, it will not be necessary for us to decide that issue. From the clause last cited ia the deed iq que^tt()n, it is evident that the deed was intended to disinherit the heir's of the donor, and the consideratioii of the disin- heriting gift away from them is expressed to be the executory condition of receiving future aid from the donee till death. ?ROM KAMANATHAN's AfPBAL KBPOBTS. 89 We think, upon tl^e balance of authorities cited by Sir Charles Marshall, that a deed in these terms is valid, subject, a^ in the Kurunegala case cited at p. 3 16 of Sir C. Marshall's book, to an onus on the donee of prov- ing fulfilment of the condition. And if this action had * been brought by plaintiffs upon Setuwa's death, vie should I have been prepared to hold that upon plaintiff's antagonist ; lay the burden of proving that the condition had been : fulfilled down to Setuwa's death. But plaintiff's conduct ' in lying by all these years since Setuwa's death materially alters the position of the matter. Plaintiff admiis that he has been out of possession since Setuwa s death- For some 14 years during Ukhu's widowhood, and for some six or eight years since, plaintiff has Iain by and allowed others to enjoy these lands under the deed, the validity of which he now contests. And he only comes forward six or eight years after Ukku's death, when it would be very probably difficult for those claiming under her to prove affirmatively by direct evidence that l/kku had rendered Setuwa the necessary assistance stipulated for until his death. We consider this as raising a strong presumption that Ukiu did render that assistance, and that she could have been able to prove it, had plaintiff brought his action at Setuwa's death, wheo, if the deed passed nothing to ^Ikku, plaintiff's right became asserti-i ble. For these reasons the D. J.'s decision is affirmed with costs. — fama Nalk: Rep. 1877. pp 195. 196. (Present .'—Creasy, 0, J, and Temple, J.) i. Kand'^, Jk. Q. Jfo. 3439.5. — Plaintiffs, as issue of Clause of disinheri- one Siam Banda Coralle by his first wife, sued defend- son is necessary to ant, his widow, for an undivided moiety of certain lands ^g^j'^"*"®"* ^^^ ^^^^^ Defendant denied the claim of the plaintiffs and pleaded a paper writing or " deed of inheritance," dated 92nd August J 860, whereby her husband, Siam Bandai Coralle, '' made over and granted in praveney" to the defendant and her minor children the lands in question. The plaintiffs demurred to this answer as insufQ. cient, in that the paper writing pleaded did not (as was essential, under the Kandyan Law) contain a clause of disinherison in respect of plaintiff's share of inheritance. The deed ran as follows : — Know all men by these presents. Purport of a deed of inheritance caused to be written and granted by me E. W, R. Siam Banda Coralle late of and now residing at Hulongwiiowa in the Koheasea Pattu of 90 KANDYAN LAW OP DEEDS AND TEANSFEHS. Matela in the Central Province of the Island of Ceylon, is as follows : — That the field called &c., [names and boundaries of several lands being set ou', the deed proceeded] : these said high and low lands, houses, gardens and plantations, 1 the above named E. W R Siara Banda Goralle have made over and granted in paraveny to my wife M. Palingo Menilsa of &c., and to my begotten children (duly n^med) : to these six persons, with my good will and pleasure. That henceforth my said M. Palingo Menika and my said five children (duly named) shall render me every assistance during my life-iime; and after my death all the said high and low land-:, houses, gatden'^ and planta4 tions, my s lid wife Palingo Manika, Loku Banda, Calloo Band', Punchi Banda Muttoo Banda and Bandara Menika: these six persons and their descendants, assigns, and heirs and every of them are empowered to possess for ever, and do whatever they may please, and they are hereby made over ; and funher from this day forth, none of the heirs, administrators and executors of the estate of me, the said Siam Banda Coralle, shall have any power of title to the said high and low lands, houses, gardens and plantation'? or any of them ; and I have hereby covenanted that I have not hitherto done any act whatsoever whi-reoy this deed of inheritance shall be cancelled ; and for a deed in that behalf, I the said E.. W. R. Siaiu Banda (Jora)le have set my signature &c. The learned District Judge (SmedleyX held that the document purported to be a testamentary disposition, and as such was governed by Ord. No ai of 1844, cl. I. He was therefore of opinion that a clause of disinherison was unnecessary ; he accordingly oVer.ruled the demurrer.' On appeal, the t^uprerae Court set aside the order, and entered up judgment, on the^ demurrer, for the plaintiff, in these terms: — The Supreme Court is clearly of opinion that the instrument under which the defendant claims is a deed' of alienation, and not a last will and testament. The case comes within the authority of D. 0. Kandy, 27150,* which the Supreme Court considers to * The facts of this case, as yet unjeportedj are these : — No 27150' ^ "{ I°dejoti Unanse vs. Keerale. Plaintiff sued in ejectment, claiming the lands in question under a deed, dated Ist May 1848, which was worded as fol-; lows : — "^ Purport of a deed of paraveny, caused to be written an ment of the Court below in these terms :— We think it very ^lain that the deed A, upon which the plaintiff relies as his ground of title, was a convey- ance to him from the owner for a valuable consideration, of a very substantial character. Ho doubt it was at the time a past consideration ; but it was none the less a Valuable consideration. "indeed, it is quite easy to perceive that unless it be so considered, and unless the plaintiff is allowed to hold the property conveyed to him as the equivalent of, or satisfaction for, or at least as security for, that past ex- penditurs and advance of money lent for the benefit of this donor, which the deed purported to be given in consideration of, he may have now lost all means of re- covering the money so lent. The District Judge says in a note, which he has added to his judgment, that he looks upon the Statement of consideration in the deed as nothing more than an attempt, and an unsuccessful attempt, to disguise the true nature of the deed ; but the person who is thus supposed to disguise the nature of the deed is the maker of the deed himself. Surely, as against him, and volunteers under him, the deed must be taken to have that character, which he, the maker,, desired to give to it, and which as against them there is' the strongest .possible evidence that it did actually possess, namely, the recital in the deed itself, unre- butted by anything to the cotitrary. We need hardly add that counter statements made by the same person in the defeifdant's deed, after he had parted with the property, and for the purpose of justify- ing his dealing with it again notwithstanding, are not admissible, and indeed could be of no value as evidence for the defendants. It seems to us tha^ the District Court was m error in holding that the deed was a revocable deed ; and we think that the. plaintiff has establjsh^jij the claim which he makes m' the libel Sup. Court' Cir. 1878- Vol. 1. p'p-47>48. t4 KilfPTA-N LAW or DEEDS AND TRAKSPEBS. Present i-r-Cayley , O.J.—Bias and Berwick, JJ, (November 28, 1879.) If Deed revoked. ^- Stindy B. C. No. •J9T1.6.— Where the plaintifff donee entitled to com* ^^^ put ihto'pOMeSiidfl' of a portion of land, in the Kan- sensation dyan Provinces ^ by • the oivner under a deed of gift, and whilst in possession they brought it into cultivation and permwi^Mky i'mproved<\Ui and increased its value : and iilbseqy.en^lliy the originlikl. owner revoked the deed of gifi and ejected the- plaintiffs Jrom the said land. lielfL- by Cayley.C. J., cmii Dias, J., that (i/ the plaintiffs, the cbne^s lender the revoked deed, were entitled to compensation Jor the permanent improvements mQ.de by tk^m: and tfiat as no objection was taken to the forrnt of action, e^fJi^^ in the answer or in the court below, they were entitled to recover this compensation by the pre-i-. sent proceedings, which were m the form of an actio in pp'sonam. Held, also by th^ Collective court that they were entitled to this corfipensation without arty deduction for profits received. by thejn during their occupation. Held, by, Beiuiifk, J., that they were entitled to' this compensation, and to recover it by a personal action both under the Roman-Dutch Common Law and also by the Kandyaif, law- Held, further, by Berwick, J., that under the Botnan- Dutch Law every possessor without [title, is en. titlefl where ejected by the true owner to compensation fof' useful improvements, made by him,, and may recover this' npt only (ly retention of the land till he has recouped him^ self for this from the rents and profits ; but also by a perfQnf4 action. , And further, that if the possession has' been pmted with or lawfully lost, his only means of te- covering cortipensq,tion for improvements is by action. Tihe .pipintiils in their libel alleged that the Ae. fendant, by a deed of gift dated 30th May, 1871,' granted,, and transferred to the plaintiffs certain lands at Dimbula Udagama. That the plaintifiCs entered into possession of the said land and permanently improved the same, so thiat its value hasbeein ephaoiced by 1 _5oo rupees. Complaint.— \.hii during the coffee season of 1877- 78 the. defendant tpoK forciblie possession of the said land, arid did plu?!^ a,nd remove the coffee thereofi. , The plaintiffs' prayer wa? ap alternative one ; that they should be 'either put in, possession of the lapd, or' if declared not entitled to the land, that they should bfl FROM THE SUPREMK CCMTUT CIRCBlA!!, 95 .^warded 1,500 rupees as compensation for the pertAa- fieat improveiiiems'efiected by them duritig theit poss. ession of the land. The defendant, in his answer, admitted that the plaintiffs bad entered upon the land under the deed of gift referred to in thd libel, and that the Idiid had b'efen .cultivated and improved by them ; but set up his riglit to revoke the deed of gift, and to re-take possession of the land, and alleged that fhe plaintiffs had beeti stnlply compensated for the improvements effected by, them by the produce which they had reaiiz-'d. At the trial the District Judge held that the de- fendant was entitled to revoke the dped.of gitt and re- take possession of the land j but that the plaintiffs were entitled to compensation for the pernianent improve- ments effected by them, and assessed this compensa- tion at the sum of 600 rupees. Evidence had been called at the trial, but there was no evidence recorded to ^hew on whatb^is the Diatrict Judge had made his assessment. From this judgment the defendant appealed. On appea\ VanLangenberg appeared for the^Iain.6 tiffs and respondents. Cir. ddv, vUlt.' On the 23rd January the following judgnSetits were delivered. ' The judgment of Cayley, C.J-, and Dias, J,, by Cayley, CJ. — In this case thei plaintiffs, who are the donees of a htena situated in the Kandyan provinces pnder a deed of gift executed in their favour by, the dei fendant, allege in their libel that they entered into poss- ession and permanently improved ll;^e same, so that iti has increased in value to the extent of ,1,500 rupees, and they complain that they have been ejected by the de- fendant, whpreby they have sustained .dajftiage to the extent of 600 rupees. They then,, in effect pray either that they may be declared entitled to and be restored to the possession of the land, or, it not, tbat.the de- fendant m^y be dpcreed to pay to them the sum of 1,500 rupees for the value of thet improvements ; they also pray that they may be restored, to the possession of the land, until this sura be paid, and that the. defen- daiit may further be condemned to pay to them 600 rupees by way of damages and further mesne profits at th^ rate of 600 rupees per annum, so long, as the de-. f<^n4,^ut remains in possession of thy land- The dnj^f 9p KANDTiN LAW OP DEEDS AND lEANSFERg. fendant in his answer takes bo objection to the form oF the plaintiffs' action, but pleads, (i) that he resumed possession of the lands, because of the ingratitude of the plaintiffs ; by which \ye presume he intended to plead a revocation of the deed of gift ; and (i) that the plaintiffs did not expend as much as 1,500 rupees in the improvement of the land, and that they had recouped themselves for their expenditure by the profits which they had derived from this and other lands which had Ibeen granted to them under the same donation. The District Judge has decided that the plaiati^s are not entitled to recover possession of the land, but are bbtitled to compensation for the amount expended by them in permanent improvements, and this sum he has assessed at 600 rupees, for which be gives the plaintiffs judgment. '' The plaintifis do not appeal, so that no question arises now as to their right to be restored to possession of the land. The defendant has appealed on the ground that the amount decreed against him is excessive, and that from the cost of the improvements the value of the rent and profits of the land received by the plaintiffs should be deducted. As we have observed above, no ob. jection was taken in the' answer, nor is any objection taken in the petition of appeal as to the form of action, so that BO question as to the plaintiffs' right to sue for the value of these permanent improvements, after they have lost their lien by losing possession of the land, appears to us to arise ; ' for as no question as to the plaintiffs' right to sue has been raised by the defen- dant's answer, we do not think that this question can fairly now be raised ; for, if this point had been raised in the pleadings and decided against the plaintiffs, the plaintiffs would probably have appealed against the part of the judgment, which decides that they are not en> titled to be restored to the possession of the lands from which they had been ejected vi ei armis. The only questions, therefore, that appear to me to come before us for adjudication are, (1) what has been the amount expendedby the plaintiffs in profitable and permanent improvements 5 and (a) whether in fixing the amount payable by the defendant there should be a deduction of the value of the profits received by the plaintiffs from the land; With regard to the first ques. tion, it appears to us that the case must go back for a further hearing unless the parties can agree upon some sum. It appears that about six acres of jungle and p^tna have^been converted into a profitable coffee gar* FROM THE STJPEEMfi COURT CIKCXTLAR. 97 4en, and there should be no difficulty in arriving at a fair estimate of the* probable cost of such conversion. With regard to the second question, we may observe .that we -have had the advantage of perusing the. judg. ment about to be' delivered by Mjr, Justice Berwick, and that we fully concur with him in thinking that the plaintiffs, so loug as their deed of gift remained unre- voked, must be treated as owners of, the land with a good, though a defeasible title, and that during such ownership they had a right to enjoy the rents and pro- fits, and cannot, after the revocation of ,the deed, he called upon to account for them. i We accordingly think that the judgment' of the Dis< trict Court should be set aside, and the case sent back for fiirther hearing to ascertain how much the plaintiffs have expended in permanently improving the land ; for this amount (not exceeding 600 rupees) without any deduction for profits received by them, they will be en» titled to judgment, which will be entered up for them accordingly. The costs in the appeal will be costs in the cause and will stand over, pending the final deci- sion of the case. Berwick, J. — In this case, one arising in llje Kandyan provinces, the defendant has appealed against the amount decreed to be paid by him to the plaintiffs as compensation for improvements effected by them during their incumbency of certain lands granted by him to them under a conditional deed of gift, which l^e has revoked by resuming possession of the lands gifted, and ousting the plaintiffs without judicial proceedings. There is no appeal by the plaintiffs, and therefore it is unnecessary to consider either whether the deed was in its nature revocable at the caprice of the grantor without proof of any breach of its coaditions or any, judicial proceeding, nor whether the alleged dispossession of the plaintiffs without ' process of l^w was legal. Conse- quently, I remark with emphasis at the ou'set (with a view to what has to be afterwards discussed) that the plaintiffs must be considered for all purposes affecting the interests, either of themselves or of the defer^dant, as being out of possession not only <^e/actci but de jure, and the latter in lavvf ul possession. A'>P there is fiq appeal by the defendant appellant against the rigtit o( the plaintiffs to some compensation (the appeal pet,^tipn only concerns the amount) ; nor against the right . of persons in the plaintiffs' position to recover the value "f improvements by the ordinary process of an action ij^ personam, and such right not having been demurred to 98 KANDYtH JjIl'W OF DEEDS 4^D TRAHSFEKS. or contested, either in the court below or in the peti- tion of appeal, it seems t* me rather late to raise the question whether the only remedy competent to a per. son ejected by one having better title is by retention of the land till the amount is recouped out of the fruits, Or till payment by the owner, and not also by an action in personam^ I think that lipon the evidence the plaid- tiffs are entitled to compensation, and that the plaintiffs should recover compensation from the defendant l^ the present personal i^Ction in the manner pra,yed or id- tended to be prayed for in the second paragraph of the prayer of the libel (I do not now spieak of the atnount) : and I therefoi'e thinfe that the learned Judge' of the Dis- trict Court was right in decreejjtig this to thetn, and t also think he was right in not granting their neit prayer that they be restored to the possession of the land until payment thereof. It may be convenient at the outset to remark that, as the plaintiffs in the present case had a clear title to the land, tliough a defeasible one, when th^y made the improvements for \yhich they seek compensacion, their case is very different from that of a party without title •who has been ejected by process of law. It is to the latter case only that the civil law author! lies on the subject of the action de Rei Hudicatione apply. The present plaintiff is altbgether outside the scope of that action; his case is more analogous to that of a fiduciary under a fidei coi/nmissum, ^nd the,civ\l law allows, such a person to stle by a personal action for the value of im- provements, and does not limit hiiti to a lien on the land. Voet, ^6f i, 61, at the sentence, ^' nee per. peram ^. ......eo ejcceptd") on the very ground, as Gaill puts it, that the ordinary rule of the Bonian Law, '' fails in respect to expenses Which have been made by an actual owner. Brevitei* (he says) impensoe quae renl faciunt meliorem regulariter compensantur cum fruc. tibus, et sic nota casum in quo bonoe fidei possessdr fructus Sues non faqit.' Fallit pradicta re'gula in expen. sis a domino rei meliorata factis qua perceptione fruc. tuum non extenuaUttjr"— (Gaill, II., pbs. lai § 14) Now, the plaintiff in the present case was as muc^, dominus rei meliorate as is. a fiduciary under a fidei cbmmissvia). JBut even if the rules of the action B.ei yindicatio did apply to this case, their application under the Bdman Qutch law (whic& differs in this respect from the Houan Law)' would, in my opinion, entitle the plaintiff to an a$!tion for the value of his in^prdye-. FROM TJLE SBPR«MS COOm' dlS,CULA»l 99' Ments, subject to a «et-off for fruits received and certain limitations' XTododbtedly it is true that under the Roman Law the ooly mode of recovering Compensatioa forioiprovements on land made by a possessor without good titldt when the real owner had vindicated his title to it by the action de Rei Viadicatione, was by its Re- tention until either he recouped himself from the rents and proiitst or the successful claimant reimbursed him ; and so also in the case of the action by an heir to re- cover an inheritance from any possessor, no Cross action was allowed to, the latter to recover the valine of im- provements, and his only repiedies were by the equit* able plea of fraud (except to doli) and Be^tentiqn. £iut the Dutch and other filled systefus of jurisprudence rejected (his rule, and Voet says now on principles. of natural equity ■' it is generally ^dmittesd that not alone a bon^' fide possessor but even a mala fid@ possessor may recover both necessary outlay and also useful out- lay, so far as the subject has been bpt^ered by it, noa sola retentione sed et actione, ,les,t ot};i,erwise the owner should be enriched by another's lossi" — Voet gd Pand. 5. 3« § *3 '1 fine. This passage it i? true has reference to the case where thg recovery of an inheritance is in question : but the principle applies equally to other cases where property is recovered from its possessors by the true owners ; and aepordingly .Voet in the title de Rei Vindicatione, Lib. vi, tit. i. not only says at the end of section 3 1, that it is beyond all doubt that, after judgment the possessor ^njoys the right of retention for outlay, but in section 36, atter stating the old law that if a possessor has made any outlay on the thing he is condemned to gi^re up, " he has no action for restitution, but only a right of fetentidn a6 has been more fully stated in the title de Bereditatis Peti'tiohe." Hq adds at the very end of the paragraph the views of the modern jurists in these words : " Caitorum cutti ration! natural! repugnet, aliura cum alterins jactur& reddi locuptetibretn, etiam maiae fidei possessoribus consul! solet, ut utilium impensaruna habeant repetiticfnem'l : and the careful reader will perceive that he illustrates the two titles of the Digest De Hered. Pet. and Re! Vind., eaqh by teits taken from the otber, and so treats them as stand- ing on the same footrcig with respect to the point now in question. Reptitio comnjonly means recovery by' actions But in whatever sense it mfay be used in this passage, the question seems to me pla6ed perfectly be- yond doubt by one of the passages. Voet there cites ftom ©roenewegen. This passage (in G'toeneWegen" 100 KANDYAN LAW OF DEEDS AXU TEASSFEKS. ad Inst. 2, I. 30) is headed " ^dificans in aliens solo moribua nostris pro impensis habet actionem et escep. tionem" — and (at the word cum) runs thus : "Since (&c.,) therefore at the present time (hodie) one who kjioiwingly builds on another's land does not lose the value of the materials and the wages of the artificers; but may retain useful outlay net only by means of a pJea [meaning the exceptio doli which if successful entitled him to retain possession till eimbnrsed], but also may sue for them by action." In further corroboration of the view I atri express- ing, I again recur to the rights of a fiduciary restoring property held under a fidei commissum, to whom "non t^iitum exceptio et rententio ; verum etiam actio pro expensis per leges (civiles) data 6st." — Voet, 36, r, 61, In that case indeed it may be true enough that (as Voet elsewhere says) there is no question of either bona fide or mala fide possession : but (firstly) the old distinction between these Voet shews to have disappeared from modern jurisprudence as regards the recovery of utiles impenfae; and (secondly) I cannot con6eive any position more analogous to that of the donee of a revocable gift than that of a fiduciary in respect to his defeasible ownership, and his rights to reinnblirsemenl; for im. provements. I think ii at the least mucli more ana. logons than that of the " Possessor" in the action Rei Vindicatio ; and an analogy therefore by which we ought, 1 think, to prefer to be guided if there were any conflfct in modern law between them, which however I venture to think that I have shewn there is not. I have considered' the subject thus far as though' the Ayntten Kandyan customs were silent on it, but " though the particular case may not be found there, I think that the principle that shou'd govern it is not absent, but appears with sufficient clearness, and that i so far as concerns a right of action for improvements) It IS m perfect accordanca with what I have above held to be the Roman Dutch Law of the Maritime Provinces. In chapter VI.. sections 21, 22, and 25, of Perera's Armour, it is stated that a person who plants another's land with the proprietor's permission is entitled to full pecuniary recompense for his trouble and expense in case the latter exercises his option (among others) of resumibg possession of the improved ground (p' lie)- that a mortgagee is entitled to the full value of im- provetneiits made with the tn9rtgagor's permission when the proprietor redeems the estate from mortgage (p. 115) raoM THE STJPKEME COURT CIRCULAK. lOl ih^t ?ven wbien a person has without permission occu- pied . temporarily abandoned lands and built a house thereon, "the proprietor must pay the builder the valUe of the hoijse, tf the former objects to the latter femuv- ipg the materials J— and that if one has re-asweddlimis* e4 ap abandoned paddy field, with or without permis- SipD, and the proprietor of the soil claims the field " it mijist be relinquished 10 him> but he mtist remunerate the cultivator for the trouble and expense of restoring the land to cultivation." Clearly, these rights to re- mtipetation imply corresponding rights to action, unless SQme exception to the general rule is expressly made j but (here is pothing to indicate that the sol6 ttiode of Redress consists in retention of thtj subject matter or even that such retenlion could be allowable. The na,tm-al development of the principle of these cases would extend it to the case we have before us. I cm- not gnd anything in that work affirmatively indicalitlg i jus relentionis either by way of lien for the compen- sation due, or as i mode of selt'^-payment from the pro- fits. The right of retention is of course not incom- patible with an alternative right of action ; for the Roman Dutch Law makes them optional, but the K-andyai) law is silent a*; to any right of retention. For these reasons, I think that on the grounds of StroDg authority in the Roman Dutch Law, and of fair implication from the Kandyan law, as well as (to use the words of the civilian above cited), that of plain natural justice and reason, the plaintiffs inthiscise were entitled to recover by action their necessary and useful expetaditure on the land of which they have been deprived (probably capriciously or sjjileftilly) by, the relocation of the deed of gift in their favour. I think that they were alHo originally entitled to tetentioQ of the land until either they had recouped theojselves from the rents and profitSj or the revokinfj dpnor had reimbursed them. But this right I think they bafe now lost ; and that therefore the District Judge was right in reiusing to restore them to the posS' fssiott with a view to such reteUtion. Reteniio is a Wisrd of very precise meaning, and has only one mean* iog in our Law. It is the retention of that which is at the lime in our possession. It is the word in our law signified by the English law term '' lien" } and equally by our law and by that of England, a lien is gone, and also the right of lien, when the possession has been parted with. In the present ease the possession haa been parted with; and if the plaintiffs wish to re-estab- 102 KANUYAN LAW OT DEEDS AND TEAN8FIBS. lish their lien, they ought first to sue to be restored to the possession alleging that they had, And are entitled to a lien, and have been forcibly or fraudulently deprived thereof. But neither is the libel aptly conceived for this purpose, nor do the notions of the deprivation of a lien and of an action to recover it seem to have been present, to the mind of the person who drew it, Eow> ever, I hardly think it necessary to dilate on this point, for there has been no appeal by the plaintiffs, and even if they have ground for being aggrieved by the judgment in so far as it refuses to replace them in poss* ession, I think it would be ultra vires of the Court to give them this redress in the absence of an appeal by themselves. And that in the Court below was wrong io decreeing compensation (which, however I do not think il was) all we can do is simply to set aside the decree reserving all other rights to the parties. The sole questions before us are, it appears to me, two : first, does an action in personam lie to recover the value of the .alleged improvements \ second, if so, does the amount awarded by the judgment exceed what is yxsii On the first point I am of opinion that such an action d'>es lie ; and to that extent think the Court below right. On the second point I think the case should go back for reconsideration, and if ne<:essary further hearing and judgment de novo. ; because I cannot find that the leardi. ed Judge has proceeded on any accurate principle ia assessing the compensation. We have indeed Pvidence of the value of the land when it was gifted to plaintiffs, and of i's value when the gift was revoked : but noos of the amount actually expended by them, which is the cardinal consideration. If the plaintiffs are lo be con- sidered as mere " possessors" without title, then they are entitled to that amount only after deduction oi the rents and profits received, and subject to certain limit- ations which restrict the amount due to the extent to which the land has been permanently benpfited. and others which will be foundT laid down in Voet. 6, t, sections 37 and 38 s and 3 Burge 34, 35 II they are to be considered as having been owners for the time being like fiduciaries (of whom Voet says eo tempore quo impenderunt dnmini fuerunt rerum illarum in quas impensum est" — Voet- 5, 3, 83, in the sentence begins ning nee est.) — then they are not liable to suffer any set.off Irom the amount expended by them on account of the rents and profits they received. — Voet. ?6, t. 61, in. Jin. and Gaill in the place already chei,—Sup. Court Cir. 1880 Vol. III. pp. 31-34. tnOil (3fi£NIK&'s AFF£A.L BIFOKTS. 103 Section 13. (From Grenier's Appeal Reports.) Deed of Gift, containiDg no clause barring grantor from trMumption of property, revocable. Badulla D. C. No. 19360. — The plaintiff claims an undivided half share of certain premises, un^er bill of sale dated a 5th February, 187 a, which had been executed in his favour by JUeybrink, the husband of the second defendant, to whom the property had been gifted in i86a by his mother-in.Iaw, the first defendant. The action was for damages and for a decree of title as against both the defendants who, it was alleged, disputed plaintiff's right under the conveyance by May. brink. The ist defendant admitted her gift to May. brink and his wife (the and defendant), but pleaded ( that the lands in question had been given for their support and maintenance ; and (a) that after the mar- riage, Meybrink having ill treated and deserted his wife and ill.used the tst defendant, the latter had thereupon resumed possession of the property. The Keplication contained a general denial of the allegations in the Answer, save as to admissions ; and the case went to trial on the issue as to whether the deed of gift was revocable or not. The material portions of the deed which was a notarial document, were as follows ; — " That Henrietta Tissera (and defendant) having been married to Mr. John Meybrink, I the said donor (1st defendant) give and heridate them the undermeU" tioned lands, houses, etc., as a final gift with my good will and pleasure. All the lands, houses and fruit trees valued at 5^200 in consideration of the foregoing cir* cumstances have bees as a final gift given to the said Mrs. and Mr. Meybrink. Therefore after this, I, the donor, my heirs, descendants and administrators from generation to generation can neither claim nor make any dispute in respect of the said lands, houses, etc. From this day the said Mrs. Meybrink and Mr Mey- brink, their heirs and descendants are authorized to hold and possess the said lands and houses in any manner they like and do as they like with the same. I have before this done no act whatsoever against this giit- grant. Further, should any dispute arise in respect hereof, I and mv lieirs bind ourselves to interfere and iiettlti Ihtt same." Deed of Gift, aon- tainiag do clause bar- ring grantor from re- sumption of property, revocable. 104 KANBYAN LAV OF DEEDS AND TKANSFESS. '- " - ^ - - The District Judgp (Gibson) held as follows : " The facts of the case are these. At the end of 1861 or early in 1862, John Meybrink fparried tnd defendant, the daughter of the first defendant, who shortly after the solemnization, on the 13th M^rch, 1862, granted a deed of gift to Meybriqk and hjs wi/e« when she transferred to them jointly the specified { of Antalawe, a room in the house standing thereon, and a piece of groutid, 30 feet Tong and i a feet in breadth, adjoining the said house. John Meybrink ?n4 2a4 defendaiit continued to live together as man and wife, partly in Badulla and partly in Antalawagedera, till sad defendant was about tp b^ confined; when Meybrink took her to her parent's horfse, where she appears to have lived pyef; since ; and it would appear from the eyi^eace th^t after she gave birth to the child. IVIeybrjak gave up yisiting her altogether. In December tSjSj, one Mr. Stouter put Meybrink in 0a^rt to recover from Jiim ?t certain sum. for good^ sold ai^d delivered, an4 obtained judgment ; writs were issued and ^ of thej of Antalawe, vfrbjch had been given by ist defendj^Rt |o hint and and defendant, was sequestered, and qot ppl4 on account of ist defendant opposing it ;-r-ia coa^ sequence of this Meybrink got angry with 1st ^ fendant anc) her children, aud committed an assault fipoa them, for which he was tried before the Hctn'ble thp Supreme Court of Kandj, was convicted and sen' tenced to corporal punishment and to imprisonment Cor a term of t^o or three years. Qq bis being discharged from gaol, he went to take possession of the l^nd. but his possession was opposed by defendants. Subse- quently, on z6th April, 1872, he transferred the said Iknd to plaintiff, who goes to take possession of it, but is also prevented from so doing by defendants, and in consequence thereof, he, on the 22ad August, 1872, brought the present action. * * * The Court is of opinion that it is implied in' tlie deed of gift that Meybrink should support and maia- tain his wife, and it is very clear from the authority cited by defendant's counsel (Armour, page 9 1)* thalt if the donee fails to comply with any condition, wheiher such failure arise either from poverty, or, as ia this, originally from bis wilful neglect and subsequently 00 his having been deprived of his liberty, the deed be- comes null and void. Gross ingratitude, misbehaviour and violence to donor have also been proved against Meybrink, which also annul the deed. The Court con, * Perera'a Edition. aiders thai of itself the deed became null when M.ey~ brink so grossly misbehaved hirbself in assaulting first defendant and her children, and that there Was no ground t6 have the deed revoked by a Court of law. On these grounds it is considered that Meybrink'si transfer to plaintiff was illegal, as by his misconduct he had forfeited his right to the lands,'' In appeal, Ferdinands, for appellant. The deed feeing a formal gift of only a portion of the donor's estate was not revocable, AUstiiti p. 43. It was be. sides unconditional, And, being burdened with a war. i'anty clausei was intended to be absolute and final, a$ eJtpressly recited therein. The deed, moreover, had not been altered or annulled by any notarial instrument, and hence the legal title sit the date of the conveyance to plaintiS was ih his Vendor. Austin, p. t^g). Ondadtje, itir respondent. Meybrink having failed ib fulfill the inbplied coAditibn in the deed that he would maintain and support his wife, the gift became hull and Void. — Ai-mout, p. 91.* Further, the donof here had restimed possession in consequence of the donee's ill-usage, and no deed of revocation was ne- ^teaajy- — Armmir, p. 9a f Saldmdns, p. 25. Per Caylet, J.—*' Affirmed. This deed of gift." which was not granted in consideration of marriage and contains no clause barring the grantor from re< sumption of the property, appears to us to be revocable tnder Eandyan Law, and not to come within the class bi irrevocable deeds given by Arrrtour $ The resump- tion of the land by the donor in conseqaence of ill. llisage from the donee (both of which are fnJly proved)' is sufficient by Kaudyan Law to render the gift null and Toid. — See ArmoUr, p' 90. § We do not agree with the judgment of Mr. Juuke Cabr reported in Austin^ ^, t^g."—Gren. Rep. 1874. Part III. pp. 24- 26. * Perera's Edition, + Perera's Edititm. t Perera's Edition, p, 95; § Perera's Edition, 106 PROM d'otlt's kotis on kanbyan law. CHAPTER III. ON MARRIAGE. First feast, on the approval of the suit. Second feast, on the day the horoscopes of the bride and bride- groom are examined. Third feast, on the day the bridegroom's parents present the bride Tcith a suit of apparel. Section I. 4 (From B' Oyly's Notes on Kandyan Law.) 1. First feast, on the approval of the suit.— 2. Second feast, on the day the horoscopes of the bride and bridegroom are examined.— 3. Third feast, on the day the bridegroom's parents present the bride with a suit of apparel.— 4. Fourth feast, on the day the ceremony of the ligature takes place. — 5. Fifth feast, on the seventh day after the nuptials, when the ceremony of bathing the bride and the bridegroom takes place. I. [The following are the ceremonies observed by the higher and influential classes of the Sinhalese in contracting marriage.] On choice being made of a bride, the bridegroom's kinsmen give intimation thereof to some of the bride'a friends, who consult her parents or guardians and other relations, and if they approve of the proposed match, the bridegroom's friends are informed thereof, where, upon some of the latter pay a visit in form to the bride'* family ,>and having seen the bride and received assurance that the suit was sanctioned, they return, after being ti;eated with rice or betel. a. Afterwards a relation of the bridegroom goes to the bride's with presents of cakes, &o., and returns thence with her nativity or horoscope : this is compared with the bridegroom's to ascertain whether the union of the two persons will be happy and fortunate. If the natij> vities are accordant and compatible, an auspicious day^ is appointed for the wedding and the bride's parents or guardians are apprized thereof. 3. On the day appointed, presents of betel, cakes, fruits, &c., are forwarded to the bride's, and then the. bridegroom's father proceeds thither instate, followed^ by the bridegroom's mother, with proper attendance j aiid, lastly, comes the bridegroom. On the party ap* proaching the bride's residence, a brother atid a sister, or an uncle and an aunt of the bride, go out to meet them in similar form and state, and conduct them to the house ; when they arrive at the outer gate of the house and have stepped oa the cloth spread for them to walk uj^on into the interior of the house a cocoaafc is sm^sh' KANDYAN LAW ON MAHKIAGE. 107 ed into pieces in the name of Ganeswera, or the god of wisdom, and on the parties entering the apartments prepared tor them respectively, the ceremony of invoke iiig long life is performed, and the gods qf wisdom again propitiated by breaking a cocoanut. 4. Previous to the auspicious moment of solemn- izing the marriage, the bridegroom's mother delivers a valuable cloth Killireda Hela to the bride's mother, ■with another cloth and a set of jewels, and the bride's father gives a suit of apparel to the bridegroom. The happy moment being arrived, the bridegroom throws a gold chain over the bride's neck, and then presents her with a complete set of apparel and ornaments, and the bride being arrayed therewith, steps up along with the bridegroom on the Magulpofua, or wedding plank which is covered with a white cloth. The bride's mat. ernal uncle or some other near relation then takes a gold chain and therewith ties the little^finger of the bride's right hand with that of the bridegroom's left, and the covple then turn round upon the plank three times from right to left, the chain is then taken off, and the bride^ groom moves to a seat prepared for him. The Magui pata, or wedding plate, is then brought in, from which tbe director of the ceremonies takes rice and cakes, and making balls of them, gives the same to the bride and bridegrooHi, who make reciprocal exchange thereof in token of conjugality. "The giiests and the rest of the company are then served with victuals, betel and sandal. On the couple quitting the bride's to go to the bridegroom's house, they are accompanied by a kinsman of the former with proper attendance. On approaching the bridegroom's residepce, they are met by a kinsraai\ of the latter attended with talipots, torches, &c , who greets the bride's kinsman and conducts the party in. Here also a coconut is smashed on the ground in the name of Ganeswara, and the ceremony is repeated of wishing longevity. After suitable eniertainmetit, the;, bride's kinsman and other guests depart. 5. On the seventh day after the last m^nt^oned ceremony the festival of bathing the head takes place, "The young wife's uncle and aunt or other near relations, repair to the house of the new married couple in du,e style, and are lormally welcomed i the open space near the apartment alloted to them is enclosed on all sides and covered with cloths, a plank being placed on tbe ground within, the young couple stand on the plank side by side, with their heads covered with a cloth. New earthen pots filled with vvater are then brought in, Fourth feast, on the day the ceremony of the ligature talteij; place. Fifth feast, on tha. seventh day after the nuptials, when the ceremony of bathing the bride and the bridegroom t s k ^ • plaje. ids iiiOM. d'otlt's notes on kandyan law. and some person on behalf of the husband drops a rupee fir a gold pagoda into each of them and presents a gold ting to the wife's uncle, who, having awaited the aus- picious moment, takes up the water pots and empties them upon the heads of the young couple. After this Ceremony the visitors are feasted and permitted to depart .■ After the lapse of some days or months, the wife's parents pay a formal visit to the young pair, attended by followers, &'c. On this occasion they bestow, according to their means, a doWry on their daughter, consisting of goods, lands, &c., and after the lapse of some time again^ the new mairied cuuple pay a ceremonious visit to the kite's parents. The Washer employed to decorate the bride's house with white cloth on the wedding day, receives five ridits from the bridegroom j- he also receives five ridies tor spreading the cloth on the Mdgul porua, and the person *ho conducted the bride to the bridegroom's house after the marriage ceremony, pays five ridies to the Washei' he sexes of different caste", is penRi, especially the connection of a higher caste woman with a lower caste maa.— Saw. Dig p. 3_5- 4. Under neither of the above modes of marriage can there be said to be a community of goods between the liusband and wife. For. in a Diga marriage what- ever pruperty the wife brings with her in the shape ot dowry, and even what she acquires independently of the husband afier marriage, he has no power over; but the wife, in the abseuce of the hu-baiid, is considered to be the manage"- of her husband's affair«, and iherefnie under such circumstances she may luakc use of his pio- peity for the maintenance and benefit of the family. She may sell the produce for (his purpose and even mortgage the lands if necessary to procure suosislence though she cannot sell them ; but the husband can make no such use of ihe wife's property, witboat her special consent.— Saw. Big. p. ^a. 5. The husband can at his pleasure repu 'iate his wifej but the wife cannot separate herself Irom her hasband without cause, with the exemption hereafter mentioned. The wife with the consent of her parents can separate herself from her husband and thus dissolve the maiiiage without her husband's consent, or without any fault on his part. But the paren's of the wife who has been given to the husband by their consent, cannot take her from her husband without her consent so long as the husband conducts himself so as not to cause dis. grace to his connections. — Saw. Dig. p. 34. Should the wife be re|udiated jn a state of preg- nancy, the father has no right to claim the child, when of sufficient age to be taken under his care as the heir of his property j but if the mother refuses to give up the child to the father she trust support it by her own means. — Saw. Dig. p 34. If the wife separates herself from her husband without his consent, or contrary to his wish, he can either r tain the while of the children or constrain htr to take a ceitain number of them with hei, notes- ceedins; half their number. She is nut in this case entitled to anythi g from the husb;ind, however in., digent may be her circum.»tances. She mu«t even lenve her weariiig apparel which she had leceived, from ht-r husband, if that were but her only cloth. - Saw. Dig. pp. 33, 34- But if the husband repudiates his wife without a suffijien( cause, and she and her own family hoing in FROM SAWEUS DIGEST ON KANDYA.N LAW. Ill indigent circuiiistances, she has the privibge of either refusing to take any of the children with her, on her return to her paternal roof, or she can demand to have one or two of the children given up to her, to be entirely at her disposal even should slie forta another Diga connection ; and sucti children shall still be entitled to an (qual right of inheritance in their f.^ither's estate with the children he has retained with him, and can return and claim maintenance from him at any iime.— Saw Dig. pp. 33, 34- A husband is only liable for such debts of his wife, as have been contracted hy her from necessi'y, for the lu.iinienance of herself and her f.imily. The wife i< not Jiible for the debts of her husband, ez^ ci^pting such debts as have been cintract' d with her consent, and which she has sanctioned by making her- self f-ecurity for the same, i. e which she has. cnn^ tracted jointly with her husband, but the knowledge and sanction of both the parties imply tecurityship for each other. — Saiv- Dig. p. 3+. 6. The husband married in Binna has no privileges in his wife's houst; he has no power over her property, he may be expelled or divorced by the wife or her parents at any moment. But if the Binnu husband was called to the wife by her parents, in that case after the paren''s death, the Binna husband cannot be expelled from the house by the brothers of the wife without the wi;e's consent — Saw. Dig- p. 35. 7. The wife has the power of refusing to admit a sec'nd associated husband, at the request of her first husband, even should he be the brother of the first, and should the proposed second associated husband not be a brother of the first, the consent of the wife's family to the double connection is required. —Saw. Big. p. 95. 8- In the event of a separation or divorce, the wife can carry away nothing from the house or estate of her husband, but she is entitled to carry away with her all the property she brought with her, at her mairiage, as well as the property she may have individuilly acquired duMiig the coverture, any landed property she may have ori_ inally had or may have acquired during the coverture remains under her own managementj and at her own dis;>osal. — Saw Dig. p- ^3. 9. The husband is heir to his wife's landed pro- perty, which will at his demise go to his heir; but in the event of the wife having left a son, and the father conlrKCiing a second marriage and having isfue of the serond bed, in this case, on ihe death of th- fatherj the Where the tnarital power of the husband is limited. Marital the wife. power of Dissolution of mar- riage. Husband when heir to his wife's landed property, and when not. 112 KANDTAN LATT OS MABRIAGE. son of the first bed would Inherit the whole of his mother's estate, with a moiety of the father's eaate, while the children of the seeond bed would inherit the second moietj of the latter estate, but in the event o( the son of the first bed dying without issue, the children of the second bed would only inherit the moiety which descended to him of his father's estate, while his mother's estate would revert to his mother's family. — Saw. Big p. 8- A wife dying inteistate leaving a son who inherits h*-r property and thai son dying without issue, the father has only a life interest in the property which the son derived or inherited from or through his noother; at the father's death such property goes to the son's u'erine brothers or sisters if he have any, and failing them, to ihe son's nearest heiis or his mother's family. — Saw Dig p. 9- A wile dying leaving a husband and children, her peculiar property of all description goes to her children, and not to her husband. — Sail' Dig p, ij. A debt contracted by a Binna tiusband without the consent or knowledge of his wife, the wife was not liable to pay; a Diga wife is liable to pay the debts of her deceased hu>baud whether she may have inherited property from him or not; the husband is liable to pay such debts of his wfe as slie had contracted for the purposes of the f imily, but not such dehts as are un. iiecessaiily contracted and without the knowledge of the husband.— lyazi). Dig. p 17, A wife dying barren or without surviving children, all the property which she received from her parents reverts to her own parents or brothers and sisters and their issue, hut the husband inherits all the property acquireci during the coverture, but that only ; property acquired under a former marriage or when single would go to her nearest of kin in her own family ; but fniling brothers and sisters and their issue, the husband comes in before the wife's uncles and aunts and their issue, —Saw, Dig. p ] 6. Parents and Chil- 10. It is stated unanimously by the Chiefs who dren. have beein consulted, that a person having the absolute possession of real or personal property has the power to dispose of that property unlimitedly, that is to say, he or she may dispose of it, either by gift or bequest away from the heirs at law. — Saw- Dig p, i. When a man dies intestate, his widow and childr?n fire his immediate heirs— but Ihe widow, although she FROM giWERs' DIGEST ON KANDYAN LATT. Hi has the chief control and management of the landed estate of her deceased husband, she has only a life in- terest in the same, and at her death it is to be divided among the sons, excepting where there is a daughter or daughters married in Binita, these or rather their chiU dren, have the same right to a share of their father's lands as their brothers. — Saw. Dig. p. i. Daughters must accept the husbands cho<:en for them by their parents, or in the event of their being; dead', by their brothers, and must go out with them in Siga, hat in the event of such a husband turning out bidly, disinheriting her children and compelling the wife to return to her father's house, the brothers in that case are bound to make provision for their unfortu- nate sister and her children out of her father's estate •—Saw. Dig. p. 3. Daughters, while they remain in their father's house, have a temporary joint interest with their bro- thers in the landed property ot their parents, but this they lose when given out in what is called a Diga mar^ riage either by their parents, or brothers, after the death of the parents. It is however reserved for the daughters in the event of their being divorced from their Digd husbands, or becoming widows destitute of the means of support, that they have a right to return to the house of their parents and there to have lodging and support and clothing from their parent's estate — but the children born to a Diga husband have no right of inheritance in the estate ot their mother's parents.— Sdw. Dig. p. i. A daughter having a Binnd husband in the bouse o-f her parents, her children have the same right of inheritance in the estate of their mother's parents as the Children of their mother's brothers, but if the children of the daughter having a Binnd husband inherit any consider^ able landed estate from their father, in that case theit shares of their mother's family estate would be propor- tionally diminished. — Saw. Dig. p. 3. A daughter married in Binna quitting her parents' bouse with her childern to go and live in Diga with her husband before her parents' death, forfeits thereby iot herself and her children a right to inherit any share of her parent's estate, (she having at the time a brother or a Binna married sister) unless one of her children be left in her parents* house.— Satt;. Dig p. 3. The daughter being the only child of a man's first or second or third marriage will have equal rights with her brothers of the half-blood in their father's estate even if given out in Diga, — Saw. Dig. p. 3, 114 KANDYAN iAW OP MARKIAeE. The only daughter of a deceased brother or Sfster having had a Binna husband, is entitled to her parents' share of the family estate, nor does she lose her right to such share by being married in Viga, unless she shall have been given away in Biga marriage by her grand- father or grandmother ; in this case she would lose her right of inheritance — but her being given so away by her uncles would not deprive her of her right of in. heritance in her grandfather's or grandmother's estate, provided she shall duly perform the public service or Rajakaria. — Saw. Big. p. 4. When a man has children by different wives, his landed property should be divided into two or more shares, according to the number of wives by whom he has children, and each family should have one share without reference to the number born of each bed, that is to say, supposing a man to have two wives, the first wife's family consist of three children, and the second wife's of one — the three children of the first wife ■will have one moiety of the estate, and the only child by the second wife the other moiety. — Saw. Big. p. 4. Two half-brothers associated with one wile are heirs reciprocally to each other in preference to brothers of the whole blood. Suppose A leaves two sons by his first wife and two sons by his second wife, and at his death his property is equally divided among the four sons, but if one brother of the first wife becomes the associated husband of one wife with a son of the second bed, in that case these two half brothers would inherit from each other, unless the association had been entirely dis- solved before the death of one of them. — Saw. Big. p. 10. "Where an estate is enjoyed undividedly by two or three brothers having but one wife in common, on the death of one of the husbands and the wife, or in the event of the wife being divorced after the death of one of the husbands, the children being the issue of the joint connexion can claim the share of the deceased father to hold it independently of their surviving father or fathers after such a joint connexion as that stated above ; and after issue, should one of the brothers quit the joint connexion and take a wife for himself alone, and have issue also by her he dying intestate, his share of the family property should be divided between the issue of his first wife which he had in joint con- nexion with his brother or brothers and the issue of his sole wife, each a moiety ; nor has the brother who Ciipriciously detached himself from a joint connexion isfter i;ssue borp un,der the same, the power of depriying FROM SiWERS' DIGEST ON KANDTA.N LAW. 115 his first family of the whole of his share of the family estate. A moiety at least of his share should reinaia with his first family, begot under common connexion of him and his brothers with his first wife. — Saw. Dig, PS' . . Where an estate is enjoyed undividedly or others wise by three brothers, two of whom being married to one wifsi while the third brother has a separate wife ; in the event of one pf the friendly or associated brothers dying without issue, the other brother with whom he had the joint wife shall be his sole heir ; the brother having a separate wife shall have no share of such demised brother's property of any kind. — Saw Dig, p 5, The acquired property of one associated brother goes to the other associated brother, the decease^ having no issue, but the property which the deceased associated brother had acquired from either of his parents would revert to that parent, and a man dying without issue having an associaied husband with his wife, that associate being a cousin or a stranger, the associates are the heirs of each other reciprocally to the property of all kinds which the deceased may have acquired during the association — but not of the property which the deceai>ed may have received from his parents or brothers or sisters, or has inherited in any way front his own family. — Saw- Big. pp. 5. 61. Should an associated husband die leaving children by a former single marriage, the children of (hat mar^. riage would be his heirs, excepting to the property acquired during the association, such acquired property would go to his associate. — Saw Big p 6 A son detaching himself from his family and forming a Binna marriage in another's house, does not lose bis right of inheritance in the estates of his parents., but if he neglects asserting his rights in this respect, in his life time, his children would have but a weak and doubtful claim on the estate of their father's parents for their father's share ; generally speaking, sqch claims are considered to be destroyed by the neglect of the father. — Saw. Dig- p. 6. The same rule as above applies to a son adopted by an uncle or aunt or by a stranger, to inherit the property of the adopting parent— the son so adopted does not thereby lose his right of inheritance in the estate of his parents who begat him, but a daughter so adopted, would, unless she were an only child, lose her right of inheritance in her parent's estate, the same us if she b^d been giveri oiit in Biga.—Saw. Big- f.. 6- 116 KANDYAN LAW OF MAHKIASE. A son becoming a Priest, thereby loaes all right of ittheritance in the property of his parents, because to take the robe is to resign all worldly wealth, nor shall he be restored to his right of inheritance by throw- ing off the robe after his father's death unless he shall hdve done so at the request of his brother, or by the unanimous request of bis brothers, as the case may be; in that erent he will have a right to that share of his parents* property which would have fallen to him, had he never taken the robe, but should one brother with< out the consent of his other brothers being laymen induce the brother being a priest, to throw off his robe, then that brother shall provide for the Siturala out of his share of the property, solely. The Siwrala shall have no right to demand any portion out of his other liay brother's share. But should a priest be stripped of his robe for some violation of the rules of his order, or from caprice throws it off, he has in neither, case a fight to inheritance from the estate of his parents.— Saw. Big. p. 7. The mother is heir to her children, even to the partienif property of her deceased husband, through them, but if she dies intestate, the estate will revert to her husband's family, whose parveny property it was j •^\\.\x this exception, if the mother has children either by a former or subsequent husband, these children being the uterine brothers and sisters of the childien through whom she inherited the estate, will inherit the same from her ; and children of the same mother by different fathers, are heirs reciprocally to each other after the children of the whole-blood have failed, but if the mother has been divorced by any of her hus- bands, the children born to other husbands cannot in. herit the property of the children whom she had borne to the divorcing husbands. — 8aio. Big. pp. 8. 9. An linmarried daughter acquirmg property and 9ying intestate her property goes to her mother ; failing th'6 mother, to the father j and failing the father, to her brothers and sisters of the whole.bloodj if there be but one such brother the whole goes to him, if there are Several brothers they shall share equally j failing brothers and Sisters of the whole-blood to the brothers and listers uterine of the half-blood, and failing them to tha brothers and sisters of the half-blood by the father's side, and failing them to the maternal uncle, failing him to the maternal aunt, and failing the maternal aunt, to the maternal grandmother, failing her to the mater, nal grandfather, failing him to the paternal uncfe, and FROM SAWERS' DIGEST ON KANDYAN LAW. IIX failing him to (he paternal aunt^ failing the paternal aunt to the paternal grandfather, and failing him to the paternal grandmother^ failing the paternal grand- mother, to the maternal uncle's sons and daughters and failing them to the maternal aunt's sons and daughters or grand-sons and grand.daaghters, and failing them to the paternal uncle's sons and daughters or grand-sons and grand.daughters, and failing them to the paternal- aunt's sons and daughters,, or grand>.sons and grand, daughters.— Saw Big. p. 17. The assessors unanimously state that the mother is the heiress to the acquired property of all kinds oi her children dying unmarried and without issue, and that the same is entirely at her disposal,, but should she die intestate, the property would go to the brothers and sisters of the whole^blood equally,, and failing them to brothers and sisters of the half-blood utrine!, — Saw. Dig p.. 17. A. parent is not liable to pay the debts of a child unless that debt had been contracted for the benefit of his parent*^s family; a father could not be seized for his son's debts. — Sa^v- Dig. p, icjt. The debts of the deceased must be paid by those- who inherit his or her property according to the value of their respective shares — the money and paddy or grain debts should be paid by those who inherit the lands, but if the moveable property of the deceased be large in proportion to the landed property, the heirs of the moveable property must pay a sh-are of the debt in proportion to the value of the moveable property.— Sou/. Dig p. i8- It is a pious duty incumbent on sons to pay their parents' debts,, although they may not have inherited any property from them. The sons, and failing sons, the daughters,, could be seized as skves for the debts of parents after the death of the parents — Saw. Dig. p. 18. The family of a man or woman which has been separated and apportioned off,, when such man or woman shall have made a second marriage, the mem- bers of such separated family shall neither have a right to share in the estate of their parent at his or her death, Bor sh^U tbey be liable for the debts of their parents contracted after the separation, the issue of the second marriage shall inherit the whole estate and be liable for the debts, but the separation must have been com- pleted and indubitable. — Saw- Dig. p. 18. Property given to a concubine or acquired by her if she dies iate state and without issue,, follows the same Brothers and sisters. 118 KANDYAN I/AW OP MAKRIAGB. rule of inheritance as the property of an unmarried woman, but if a concubine or a prostitute leave issue they inherit their mother's property. — Saw. Big p. i8. A man dying intestate leaving neither widow nor children, his moveable property goes to his parents, failing them, to such of his brothers and sisters who have rendered him Support and assistance on his death bed, and failing them, to his next of kin or those who have rendered lu'm assistance ; excepting in cases where the property is - ore than amounts to a fair recorapence to the stranger who has rendered the deceased assist., ance, in this case the stranger must be satisfied with a compensation out of the deceased's property, and the remainder goes to the next of kin as above, and failing parents, or sisters, or brothers, the nep lews and nieces inherit according fo the share their parents would have been entitled to ; and in this respect the children of brothers and sisters have equal rights, and failing sisters and brothers and their children, the property of the deceased will go to the uncles and aunts or the issue on both the mother and father's side, that is to say, one half to the kindred on the father's side, and one-half to the kindred on the mother's side, but this rule applies only to the acquired property of the deceased ; for whatever he got through his mother will revert to the mother's family, and what came from or through the father will revert to his father's family. — Saw. Dig. P- 15- The property of a deceased person goes to the crown only after no kindred can be found to inherit. — Saw. Dig p. i6- 1 1. The right of inheritance of uterine children of the halfublood is postponed to that of paternal uncles and aunts and their issue, except in respect to the mother's property j for example) Lokoorale marries Kallu Etena and has issue Tikirale. Lokoorale dies, his widow is taken for wife by Sirimalbamy and baa issue. Tikirale dies., and his properly, which he in- herited from his father Lokoorale, reverts to the brothers or sisters of Lokoorale and does not go to the i Sue of hirimalhamy, though tl ey are of the half- blood with Tikirale, beine: children of the same motljer ; but this su[. poses Kallu Etena to be demised ; for, the moiher surviving is the heir of her childien, and in that case the propeity of Tikirale would become absolutely the property of his mother Kallu Eien i and entirely at I er disposal.— Saw Dig p. lo. Ihe property derived from toe lather goes to the FHOM SAWERs' DIGEST ON KANDTAN LAW. 119 halLbrothers on the father's side in preference to the half-lrother by the aiother's side j as for example, A has by his first wife a son and by his second wife another son, then A dies and his estate is divided ; his widow forms a second marriage and bears children to ber second husband and dief, the son of her fiist husband then dies without issue j his share of A's estates goes to his brother of the half-blood on the father's side, viz; the elder son of A in preference to his mother's son by her second marriage. — Somj. Big. p. 10. In respect to the father's property, the right of inheritance of the half-blood is postponed to that of the brothers and sisters of the whole-blood ; for ex- ample, A lias by his first wife two sons and a dauf'hter and by his second wife two sons. Tbe falher being dead on the demise of one ot his sons of the first bed vitbout issue, no part of his property would go to the children of the stcond bed or half..blood, but tl'e brother and sister of the whole- Llood would inherit tlie whole of the deceased brother's property, but in failuie cf the brothers and sisters or their issue of the wbole-blood, the brothers and sisteis of the half, blood are the next to inherit. — Saw. Dig. p. g 13. Nephews or nieces o I tbe whole blood (the children of a brother or sister of the whole-blood) suc- ceed before nephews and neices of the half-blood (the children of the brothers or sisters of the half-blood.) ^Saw. Big. p. II. JVephcVfs and nieces of the whole-blood succeed before brothers ot the half-blood — Saw Big. p. ii. 13. A widow, whose husband has 1 ft no issue, is entithd at her husband's death to the whole of her husband's moveable property, including money, gra,in, goods, slaves and cattle, unless the three last mentioned have been heirlooms of her husband's family, i e., which be had inherited or received with the landed estate of his ancestors, but all goods, slaves or cattle acquired by the husband during the coverture by pur- chase or by gift trom others, the wid' w is entitled to, but she is not entitled to any share of the produce of the slaves or cattle being the original stock of the hus- Band's family.— Saw. Bjg p. ii. On leaving her husband's house the widow is ei titled to carry with her hII such property as she is entitUd to by the above article, but if her husband's faraily.lands have been burthened with debt or mort- gaged dy her husband's ancestors, the widow mu«t Nephews nieces. and Widows widowers. and 120 KANDYAN LAW OF MARRIAGE give up as much of the moveable property as will amount to half the sum necessary for the disburfhen- ing or dismortgaging the landed property of the de- ceased husband, but if the deceased hu band had him- self burthened with debt or raortgaged his family estate, then his moveable property is liable to the last article to be disposed of for the liquidation of the same, in which case the widow could get nothing, if the debt of the deceased exceeded the value of his moveable property to which she is entitled. — Sow Dig. p. 22, , The widow has no right to dispose of her bus- band's lands contrary to what thi3 law directs, although she has the usufruct of them, unless she was specially authorized by her husband that he might thereby secure to his relict the dutiful obedience of his children. This is a common ease. — Saw. Dig. p. 23. But if the barren widow be the husband's paternal aunt's daughter, or his maternal uncle's daughter, slie inherits next to full brothers the acquired lands. — Satir. Dig: p. 23. If a widow, without being opposed by her de- ceased husband's family takes a Binrm husband into the house or her deceased husband to assist and prd^ tect her, the children by her first husdand, may, on coming of age, expel the second husband and childreii of their mother by her second husband, they however cannot expel the mother ;. but if the half-blood uterine are allowed to remain in the house,, they, in failure of issue of the children of the first bed, would inherit the property of the children of the first bed Saw Dig. P- 39- Seetion a. (From Marshall's Judgments.) 1. Husband and wife. — 2. Parents and children.— ife Brothers and sisters. — i, Nephews and neices. — 5~ Widows and widowers. Hnsbaad and wife. I. The husband is heir to his wife's landed pro^ perty [but see further in this par. this position contro* verted] which at his d^ath goes to his heirs ? but if the wife leave a son and the father marry again and have issue of the second bed, in such case, on the death of the father, the bun of the first bed would inherit the IHOM Marshall's .fUDaMEK^a, J2l whole of his mQther*s estate, while her chiLdren of thff Becond bed would inherit the other moiety of the latter estate, and ia the event, of the son of the first bed dying without issue, the children of the second bed would enly inherit from him the naoiety which had desoendedj fp him of the father's estate, and his mother's estate would revert to his mother's family. This, adds Mr. Sawers. is the opinion of Doloswala Disawa of SaSra. gam. But the chiefs of Udarata are unanimously of opinion that the husband is not the heir to his wife's landed parveny estate which she inherited from he^ parents, nor to her acquired landed property, that oa the contrary the moment the wife ^es the husband loses all interest in her estate, which, if she had left DO issue, reverts to her parents or their heirs, and that {hough the wife is entitled to the entire possession of her deceased husband's estate so long as she continues, single and remains in. his house, yet the husband must quit his wifes eatate thp mpnjjent she dies. — B/lfir, jud&, P- 339 §8 1. If a wife aud children are obliged to quit the hus* band's house from the means of subsistence failing to be sufficient for the whole family ; this does not pre- judice the tight of inheritance of her or her children to the property of the husband, — Mat. Judg. p. 343 §s 93- 1. "The eldest son has no right to a better shard Parents and child of the estate of his ptarents than his other brothers and ren. his sisters having Binna, husbands.-^^ar- Ju^dg- p^2j § S?-* " Daughters while they remain in tb^ir father^ hou^e have a temporary joiat interest with their brothers in the landed property of their parents ; but this they, lose, when given out in Diga marriage by their parents, or by their brothers alter the death of their parent8."i] [But not, it would seem by half brothers ;; for in a case in which this q,uestion arose, and in which the Judicial Commissioner of Kandy,^ doubted whether the being married out in Digoi would operate to the disherison of the daughters, though he entertained no doubt that such a marriage by the whole brothers would have that effect j. eleven chiefs were consulted and gave their opinion that the daughter did ;zo^ forfeit her right of inheritance by being so disposed of. No- 6,754. Batnapura 26th Oct.< . '. it __, * See Sofv. Big, p. 3. + See Saw. J?ig, ^. 1, i22 kiNi)IA.k LAW or MiBjitAfeE. ober i8j3i metitioiied infra : par. 68, for anothsr point ; see also par* 65 as to un6leS giving their nieces out iii i)iga. " It is howevel', reserved for the daughters id the event of their being divorced from their Diga hiis. dands, or becoming widows destitute of the means of support, that they have a right to return to the house of their parent's estate: But the children, bora to a JHgd husband, have no right of inheritance in thei estate of their mother's parents.' * This last poBitionl is to be taken as opposed to the rights of sons and of daughters married in Biritia. As r6garda cdllaterals and more distant relations, 'vtre shall see that the chil- dren of Bigd married daughters have in many cases li preferable claim — Indeed the exclusion of iMgd married daughters themselves would seem only to haive re» ference to sons, and Biniia daughters,- themselves ■would seenii only to haVe reference to sons and Binrid daughters of the sanie bed ; for we shafll see presently par : 59 that Biga married daughters being the oa\j issue of that bed have joint, if not an equal right with their half brothers to their father's estate. — Mar, Judg, P- 3»7 § S3' " Daughters, befot'e marriagfe or returning f^om a Biga marriage, have an et][ual claim idr maintenance from the Share of all their brothers, although' of the whole or half blood, that is to say, from all the shared into which ttteir parent's estate may &ave been divided." t — Mat.Judg. p. 331. § 60. A daughter being the only child of a niiaa's first 6r 8e<:ond or third marriage, will have equal rights with h6r brothers of the half blood, in her father's estate, even if given out in Bigd. This rule is quali« Aed by the chiefs who say that where there is an only daughter, or only daughter of one bed, thoas;h such' daughters would have abSoltfte or parveni/ rights id their shares; they would be entitled to shares infedor to those of their half brothers ; commonly one half aS much. — Mar. Judg. p. 331. § 59. " The only daughter of a decea'sed brother or of a' sister, having had a Binnd husband, is entitled to her parent's share of the family estate, nor does she lose her right to such share by being married in Bigd marriage by her grand'.fathei' or grand^mother, ia whioh case she would have a right of inheritance, but fcer being so given away by her uncles would not * See Saw, Dig. p, 2, t See Smi, Big, p, S, Mo'^ MAitsMAJii's ;rubiiiiisi)i!s. 123 aejjHve her of her right of idheritante iti bar grand' father's or grand' mother's estate, provided she duly perform (or cause to be performed) the Sdjacaria * i ' Vide Supra : pard : 53 tls to the effect of being e,\veii but in Digd hj brothers oi: half brbthersi— itfar. ^udg. If, howevisr, a daughter. 'Who has been giveii out ita IHg!d, should afterwards return to the hbUse of her parents, with the consent tif her faUiily, and then marry a Binnh husband; the issue of this conriexioti will have thcs sara^ right 6f inheritance iti the estate of thisir iUateriial gi-and^fdther or grand.mother. as the issue of her Uterine brothers- — Mdr. Jfudg. p. 328. § 54. '' On failure of the issue of sons, and of daughters inarried in Binnu, a Digd married daughter Woald Succeed ; but if she be dead her father's brdthei-s suc^ (seeded before her children ; and again, if the brothers be dead, the Digd daughter's 6hildi'en succeeded beforfe the children of her father's brdtherg "f — od this point Mr. SaWers observes there appiears to be a Considerable degree bf Uncertaint;^, but the bhiefs seetU pretty linanittioUsIt of opinion that Where two brdthei'S have JJOSsbSsCd the faniiiy estate undividedly the One brother would succeed td the other in preference to the other daughters tuat-ried in Diga ; bat when the f arUily estate has been divided and so possessed by the two brothers; the children of a Diga married daughter Would succeed to their maternal grand-father befdre their g'-and- fatli^r's brothers ; (and even in the first instance, thdt is, Wiiere the brothers have possessed the estaite Un^ dividedly) the children of the DigU married daUghter, if ibejr became destitute; but not othef-Wise, Would have i right to claim support ffotA theit' maternal grand^father's estate, though the ParVeny right to Uiat estate woUld hb in (heir grand^Uncle (maternal grand^father's brothers). — Mhr. ^udg. p 3*8. § 55. A daUghte^' having a Binna husband in the hbifse of her parents, hef children have the same i^ight of inheritance to the estate of their mother's parents, as the children of their mother's brothers; but (f tha children Of the daughter having a Bin7ia husband in- herit any considerable landed estate from their father, in that case, their share of theii' mother's family estate Would be propiortionably dimiaiahed.— Mar. Jud.g. p. 328 § 56. * See Saw. Dig. p. i, f See Saw, Dig. p. 2; J24 lAUDTAN VkV OT MAERUa*, The same custoiq reflates the succession to tlie mother's as to the father's estate, and daughters having brothers have no superior rights; of inheritance ia their Viother's> landed property to what they have in their 1 father's estate, with this exception, however, that when the parents have each an independant estate, the daughters, whether married in Diga or otherwise, have parveny rights to equal shares with her brothie^s in their piother's estate. — M'*''- Judg, p 332 ^ 6j, It appears from Mr. Sawers' notes,* to have been a disputed question how the landed property of a per-^ son haying children by several wives should be divided betitreeu the children, many of the chiefs gave their opinion that the property should be divided into two or more shares according to the number of wives by whom the deceased has left children and that eacb family should have one share, without reference to the nutnber born of each bed,j but the majority of the chiefs vhoi were consulted seemed of opinion that the property should be, divided equally among all the: child, ren pf the different beds,, share and share alike; and the two. JtoUowing cases are given by Mr. Sawers as being cited by two of the chiefs in support of the latter opinion " Meweneweufe Mttdimse died intestate in tbe ^^ndyan King's time, leaving two sons by his 6rst ■wife, and one eon by his second wife, both wives being alive, but dwelling ia separate WallaifiVes.. The case came before the King who decided that the lands should be equally divided among thjee brothers, share and share alikei, the widows having theiE lifft interest i;eserved to them, in their respective children's sh^.rQS,^ the case was renewed under the present Government,^ in consequence of one of the two sons of the first wife leaving died without issue, upon which the son of tli& second wife sued for a fresh division of tbeii late father's property, or rather that his deceased haU brother's share should be divided between himself and the surviving brother; But it was decided by . the resident and chiefs, confirmed by the Governor, that no fresh division should take place, and that the share of the deceased brother should go wholly to his brother of the whole-blood." Again, " Kaickdgahapittiai Moh(^ ^lle. left by his first wife one son, by his second wife two sons, and by his thir4 wife two sons and a daugh' ter, and when the children came to contest about a division of the property, the lands were divided equally * See Sdw. Dig. p, ^ FROM Marshall's judgments. 125 among the four sons> and the daughter was left to be supported out of the share of her two uterine brothers." This rule of division [per capita rather than per stirpes'] certainly seeirs the most consonant to natural justice and has bten acted upon by 8. C j — In one case the deceased had left a son and daughter by his first wife, and one daughter by his second wife, the Court of Ratnapura adjudged the estate to be divided equally between the three children- The Court of the Judi^ cial Commissioner decided that half the estate should be divided between the two children of the first nnar- riage, and that the other half should go to the daugh^ ter by the second marriage. The S. C., before which the case was ultimately brought, after adverting to the conflicting opinions entertained by the chiefs on this point, decided in favour of the equal division among all three children, observing that " as far as this Court had been enabled to ascertain, the right of authority, founded both in opinion and precedent, is in favour of division among all the children of different marriages equally J that this practice would certainly seem to be more consonant with the principles of equitable distri.. button ; that in the present case there was no reason founded on justice, why the daughter of the second marriage should enjoy a portion equal to that which was to be divided between her brothers and sisters, and that the justice of such distribution become, of course, stronger, when the children of one bed were still more numerous as compared with the other." No. 6754 Ratn»ini(Jn of the Assessora in'.tbe Court of Madewelletetirje fur the foUdwing reasons^, lnde.J3ehdenily bf'the'state df destitutrpiiiil v/tuch;rt appears thaft'-i;he"plaintiff nbw is; and which »ri'tselT wou^ etititje'^Iier to, srfme assistance from fch6 estate of her 'ffefceysed pa.rents, it appears that, though ishe was riiarried in Piga^ she always ke^t itp a close connec'iori with her lather's house, in which -incleed three of her childreh were born, arlother Reason -is j that, the defendant, althnbgh he andert'Ook to assert Sh his ans^Ve'r that the plaintiff bad refceived a sTiare of t^e,paternal lands \^hich he even specially described^ 3et,has not shewn that she did receive any part tbere- oTj^again it appears that the father, on his dteSth bfed, gave one Tal'pot to the de'^eiidant, and two others to hf^ wjfer what has become, of those t^o latter olas does not appear, 'but . it i^ not improbable that One of thepa may have bepn iritended for the plaintiflF, more! especially Considering the'fveqaeticy of hei-'-vlsitS to the paternal residence." No. _^9o Madev^elleteilne, 3rd s4i\y, i8'j4- — Mar. fiidg. p. 329 § 58'. . '"'•'■ '' ./a daughter, by conduct which brings disgrace lipoti l^r family, would destroy her paryeny right of inheri- tance in the est^tp of her parents, but still she would have a ri^htot support From the estate of her parents and'coqld dpmand-jtl^e same at law from rthe brothers. — ;jV/ar. ^j«^g!,:p 3,,3J;_|,,62 * . ., If 'a daug^lrter bear cbildren , iti the hoiise of her Jjiiitents,,.,jvithout bavfn,g "an/acknovYledged biisband> stjch children would h^ve a doubtful or weak claim to any share o;f their maternal ^ratidfalhef's' property, arid must depend chiLfly on the good will of their lincle dr Uncles for support, apd a^provisiqn ,out of the grand.* father's estatq. — Mar. Judg- p. 33C'§'6i.t *' Daughters must accept the husband chosen for Ihjeln by their parents, or in the event of thd parents betRg deqd by their ^brothers-, , and must go put. with si(igb hpstiguds 'mjDiga; but m the event of sudh hiis- b^gdjftuf ping out badly, disinheriting his children, an^ CQmj?^0ing. the wife ^^p, Return tp-^er father's house^ the btrqthers are bound to make provisions for their uri-i fOttiaaatie sister aq^her children oiit of her'^athtfr's estate'''— i/ar. y^'^'-,/'- 33,1 jj<5^.i ' ',',, , ",,, , „" , * See Saw. Diy. p.,S. „ + Ses.jSaw, fiig. p„i, r, » 130, KA.NDYAN LAW OP MAEEIAfiE. " Grandchildren, (whether the children of a. son or daughter) have the same right of inheritance to their grandfather's estate that their deceased parents would have had, if he or she had survived ; that is, they are entitled to hia or her share,, and great grand, children in like manner iaberit through, their deceased; parents." — Mar. Judg. p. 33a § 64.* " If a daughter have unauthorised intercourse with a paramour in her father's house,, the children of such intercourse have no right of inheritance in their maternal grandfather or graadmother's property, but if the father be known, and the childrsn be acknow. ledged by him, they would have a claim of inheritance on his parveny property, provided the paramour were of equal rank and degree with the mother."— il^a^ Judg. p. 332 § 66.\ Uterine brothers and sisters, though born to, several fathers, have all equal rights of inheritance to their mother's peculiar estate." — Mar.Judg.p 336 § 74. J " A son becoming a priest thereby loses all right of inheritance in the property of his parents, because. to take the robe is to resign all worldly wealth. Nor shall he be restored to his r'ght of inheritance bjt throwing off the robe after his father's death, unless he shall have done so at the request of hi* brother, or by the unanimous request of his brothers, as the case may be, in yrhich event, he will have a right to that share of his parent's property which would have fallen to him, had he never taken the robe. But should one brother, without the consent of his other brothers, being laymen^ indijpe the brother,, a Priest, to throwt off the robe, then that brother, shall, provide for the Seioralle out of bis own share of the property solely ;. anA the Sewralle shall have no right to demand any portion of the shares of his other lay brothers. But should, a priest be stripped of his robes for some viola* tipn of the rules of his ordgr, or should he throw it off f icom capriqe, ho has, in either case, a right to sub-«. sistenge from the estate of his parents. '§ I.n a case Iroof, Ruanwellp the Plaintiff claimed lands in right ol his associated fathers, four in number, all of whom, were dead ; it appeared that after, the death of the Plaintiff's mother, some of the fathers had, married a, second wife^ the defendant, who had, remained in, * See Saw. Dig. p. 4. $ See Saw, Dig. p. 6. \ See Soflo. Dig. y. 4, § See Sav, D'9- P- 7> raoM MA.RsnAt,L's judgments. ISi possession of the lands since the death of her last suf- viving husband,— that the Plaintiff hid become % priest in the Maiitime Provinces, and had been for some years absent from Lis own Cfuintry, during which period the widow had performed the Rajakarea and that he had lately returned, thrown off his priest's robes, and instituted this claim. The second and tbird Assessors were of opinion that the plainiiff was en* titled, as heir to his fathers: The D. J. and the first Assessor considered that the defendant ou^ht to retain possession for her life, and that at litr death the land& slfioa'd go to the plaintiff,, and it was so decreed ac^ cordingly. And on appeal to the S. <\ ihis decision was affirmed. No. 22^48 Ruanwelle, 2^tLi May, 1835. — Mar. Judg. p. 337 § 77. The foregoing rules of the Law of inheritance must be understood to apply only in cases where the caste of the parents has been equal, for the children of ai wife of inferior caste to that of the husband, cannot inherit any pait of the jftaruera^ or heriditary property o£ the father that has descenoed to hi/n from his an... cestors, as long as a descendant, or one of the pure blood of those ancestors, hiwtver remote, remains to inherit. But the issue of the low caste wife can in- herit the lands acquired bytleir father, whether by purchase or by gift frcm strangers ; and shculd no provision of this kind exist for the children of. a low caste wife, they will, in that case, be entitled to tem- porary support from iheir father's heiiditary property" —Mar. Juftg- p 33^ § 78.^ " Failing immediate descendants, that is, issue of, his own body by, a wife of his, own or of higher caste, a man's next heir to his landed property (preserving the widow's life interest] is his father, or if the father be dead, the mother, but for a life interest only," [this. Irmitaiion to a life ia'erest seems, however, to be in contradiction to what will be stated in par. 82 and 85^ by which the tnother is stated to be absolute heiress at law to her children dying without issue, and to. have the power of disposal of the father's parveny^&it&te,. which she inherits through them] " and on the same conditions on which she holds her deceased husband's estate, viz-: in trust merely for her children [and this, limitation to a trust, or life interest,, seems to apply to the father equally as to the mother, in the case of * S^e Sav/, ffig, p. 1, l32 KiS'ljIAN LaW of JIAKIUA&K. acquired'piopertyj if the father and matlier be both d|t;ad, the brother or brothers and their sons, and fail, ing brothers and their sons, the sister or sister's ^ons succeeded.— A/dr. Ju.dg. p- 338 §79* The mother is heir to her children even in thp parveny property of her deceased husband through ihem. But if she die intestate, the estate will revert, to her husband's family whose parveny property it was,' AVith this exception, that if the mother has. chiidrenj either by a former or subsequent husbandj these chiU. dren being the ultimate brothers and sis'ers of tli^ children, through whom she itiherited the estate, will inherit the same from her 5 and children of thesaai,? mother by different fathers are reciprc^ally heirs to each othcTj after the children of the w-hnle, blood bjve failed. But if the mother has been divorced by any of her hu-bauds, the children born to ot'ner hu,sbjnds tannot inherit the property of the children whom she bad borne to the divorcing husband. — Mar.. Judg- p 339 § 82 t , > If a wife die intestate, leaving a son who mherlts, iier property-, and that.son die wi'iiout isspe,; the father ' has only a life interest in the property which the son. derived from or inherited through his mother. And at.' the father's death such property goes to the. son's literirie brothers or sisters, if he hive any, and, failing them, to the son's nearp^t heirs, in his tnother's^ family,, —Mar. Judg p. 340 i 83 i " V' ' ,' With respe«;t,to the^tather's property, the right of inheritance of the half blood is; postponed to that of brothers arid slaters of the whole',blood., For example. A has by his first wife two sons and a daujhtet, and by his secoiid, wife; two sons, and dies. On the death of one of the, sons of the first bed without isstie lio , part of his property would go to the children of bis Becpnd bed, or half blood ; but the brother anfi sistef of the whole, blood Would inherit;, the whole of the deceased's . property. On failurei , however, of the brothers.a[i4§istecs of the whole blood aiid their issuer the brothefs aijd sisl;ers of the h^Tit blood are then tOjj itiheri^..^^faf, ^!i4g. p. 340, § 84 § ' , t iii$b^..loliojving,bis said to be the exposition of D^lo^gU except m respect to the mothei's property. For examplei Lokuralle marries Kallu and has issue Tikiralle, Lokuralle dies and his w'dow is taken to wife by Sirimalhamy and has issue, Tikiralle dies ^without issue] and the property which he intierited from his father Lokuralle reverts to the brothers and sis'^ers of Lokuralle, and does not go to the issue of Sirimalhamy, though they are of the half blood with Tikiralle, being children of the same mother." Thi<, however, goes on the supposition tha' Kallu the mother is dead, for as the mother is the heir of her children (par : 82) the properiyof Tikiralle, if his mother Kallu, had survived him, would have become her absolute property, and entirely at his disposal.— A/or, ^udg p 340 § 85.* If a son acquire independent property in his father's life time and die, leaving i-sue, before his father, his property goes to his widow and children. But his father if destitute would be entitled to main- tenance out of the estate of his deceased son, but would have no deeper interest in it, nor could he ob- ject to the widow and children of his deceased son Rejling the .estate, though such sale would destroy the means of maintaining him. If the son leave an only daughter, the father would have the right to possess the acquired estate of his deceased son, but he could pot dispose of it, in any way prejudicial to the parveny right of inheritance of the daughter to her father's property.— ik/ar. ^arfg. p. 343 § 9^- Sisters have a right of maintenance from their parents' estate in the event of their becoming destitute by the misfortune or bad conduct of their husbands. Jsfor is this right destroyed by the sale of the parental estate by the brothers, for any person purchasing such an estate, without the concurrence of sisters who may have such claim upon it, would be liable to the sisters of the seller for the same support out of the estate as their brother would have been bound to afford them, jn the event of their becoming destitute, and the same obligation would be upon the holder of the estate, in the event of its passing from the brother's son to his uteiine brother by a different father. — Mar, ^udg. p. 343 § 9+ t Ii a person die childless, but leaving parents, brothers aud sisters, the property which the deceased inay have received from his or her parents reverts to * See Saw. Dig. p. 10. T See Savi. Dig. p. 12. 134 KANDYAif LAW OF MARRIAGE. them respectively [if from the father, to the father, if from the mother lo the mothe] ind his acquired pro- perty, whether land, caf.tle or goods, also goes to his parents, but only the usu'ruct of it. The p irents can- not dispose of such acquired property by sale, gift or bequsst, but it must devolve on the brothers and sisters, who, however, have only thesime degree of in- terest in their deceased brother's acquired pi'operty that they have in their deceased parent's estate, ult^. n)a'ely it is divided equally among the broihi^rs of the whole blood of the deceased, or their sods according to what would have been their father's share; failing brother's sons, it goes to sisters of the whole blood or their sons', failing them, to the brothers of the half- blood, u'erine, and their children ; failing thera, to the sistera of the half' blood, uterine, and their children ; failing both brothers and sisters of the half-blood uterine and their children, to brohers of the half- blood by the father's side and their children, next to sisters of the half-blood, by their father's side and their children, next to the mother's sister's side, that is to say, the mother's sister's children [see the latter part of par. 91] failing tbem, to the mother's brothers and their children, next to the father's brothers, and their children, and, failing thera, to the f.ither's sisters and their children. — Alar, jfudg. p- 344 § 96.* The father is not iiii heir of the property of his children born in Binna marriage, which they have acquired through their mother ; the maternal uncles or next of kin on the mother's side being the heir to such property, but the father will succeed to such chil Iren's property otherwise acquired.— Mar. Judg. p- 3 4.4. § 97.t If a man die leaving relations on his mother's side, but none on his father's side, his father's land will pass to hi-i mother's family, his widow, if he left o"e, having a life interest in the property. — Mar. jfudg. p 345 § 99 T Sannarses and title deeds of all descriptions by the possessorsot wiiich lands are held ^^ Pat la condoe.s,'' by which the family designation or title is preserved, as also all articles received as royal gifts follow the des- * See Thorn. Inst. Vol. 11. p. 648. See also Saw. Dig. p. 13. t See Thorn. Inst. Vol. 11. p. 649. See also Saw. Dig. p. U. X See Thorn. Inst. Vol, 11. p. 649, See also Saw, Dig. p. 14. FROM Marshall's judgments. ^^° Cent of the land, and are considered the common pro' perty of the heir- — Mar. !fudg. p. 345 § 100.* Persons incapable of mtieiiting are ist such as have assaulted and struck or wounded their parents; iiidly such as have been discarded by their parents for shameful conduct; but mental or bodily infirmities do not disqualify from inheritance. — Mar. Judg. p. 3 f J wru II- ■ J j-'--j ji Brothers and Siatera. 3. Where an estate is enjoyed undividedly or ■"'" otherwise by three brotbers, two of whom are married to one wife, while the third brother has a separate wife, in the event of one of the family or associated brothers djing without issue, the other brother with whom be had the joint wife shall be his sole heir, and the brother having a separate wife shall have no share of such demised brother's property of any land. — Mar. y"dg. p 335 § ;o. + The acquired property of one associated brother, dying without issue, goes to the other associated brother j but the property which the deceased had received from either of his parents would revert to that parents and associated brothers, being cousins or strangers in blood to each other, are reciprocally the heirs of each other, if either die without issue, to the property of all kind which the deceased may have acquired during the association ; but not to the pro. perty which the deceased may have received from his parents or brothers or sisters, or which he may have inherited in any way from his own family. — Mar. yudg. p. 335 § 7'- § Should an associated husband die leaving children by a former single marriage, such children would be his heirs, except to the property acquired during the association, which property would go to his associate. — Mar. Judg. p. 335 § 72. || The chiefs are agreed that a sister's son had not a preferable right to the brother's daughter, unless he * See Thorn. Inst Vol. 11. p. 650. See also Sow. Dig. p. 14. t See Thorn. Inst. Vol. 11. p. 650. See also Saw. Dig. p. 14. t See Thorn. Inst. Vol. II. p. 638. See also Saw. Dig. p. 5. i See Thorn. Inst. Vol. 11. p. 638. See also Saw. Dig. p. 6. il See Thorn. Inst. Vot. 11. p. 639, See also Saw, Dig, p. 6. jgg KANDTAN lAV OF MAEKIAGE. has been adopted by his uncle, and therefore that faiL ing a brother's son the property should^ be divided between the sister's son and the brother s daughter. But should the nephew have been neglected while the uncle was instrumental in procuring a Binna husband for his niece, and appearing otherwise to take a paternal solicitude about his niece, in such case she would be her uncle's sole heiress rather than the nephew, being a sister's soa.—Mar. Judg. p 338 § 80.* The property derived trom the father goes to the half brothers on the father's side, in preference to the half brothers on the mother's side, for exiimple ; A has a son by his first wife, and another son by his second wife, and dies, and his estate is divided, his widow marries again, bears phildren to her second husband, and dies, her son by A's children inherits in preference to his mother's children by her second husband. "Mr- Sawers adds that Beligama D. Nilleme alone holds the contrary to be law, viz: that uterine children haye a preference to the brothers or sisters of the half' blood by the father's side, though the pro. perty may have originally been the fathei's paryeny.' — Mar. Judg. p 24 1 §86 t "Two half brothers associated wilh one wife are heirs reciprocally to each other in preference to brothers of the whole blood- Suppose A leaves two sons by his first wjfe, and two sons by his second wife, at his death his property is equally divided among the four sons. If a son of the first bed becomes the asso- ciated husband of the same wife with a son of the second bed, these two half brothers would inherit from each other, unless the association be entirely dissolved before the death of either of them."^-A7ar. Judg. jS. 341 § 87 I " disters of the whole blood, though given out iij Diga, succeed in preference to brothers of the half blood — Mar, ^udg. p. 34.1 § 89 § To an estate coming from the mother the R»ater- nal cousin will succeed hefore the paternal cousin, as will appear decided in the following case of Beyakelena* * See Saw. Dig. p. 8. T See Thorn. Inst. Vol, 11, «, 644. See also Saw, Dig, p. 10. X See Tlwm. Inst, Vol, 11. y. 645. See also Saw. Dig, p. 10. § See Thorn. Inst, Vol, 11. p, 645. See also Saw, Dig, f. 12. PROM MAKSHALL's JUDGMliNT3. 137 wela Uruinse v. Boange Nilleine. The f;ct-i of that case are staled to be as follows : Watapola Muhatmea, having a hu->band in Binna had three daughters, among whom her estate was divided; the eldest mar- ried Dehigame Angemulle hiilleme, and had a son who succeeded lo his mother's property, but becoming a priest he consequently had no issue, the Plaintiff claimed the share of this son on hehaU of the temple, which claim was of course set aside. The defendant claimed as son of the third daughter, (f'atapola Mahal' mea ; a tliird claim was set up by a cousin of the last proprietor, the Priest, by the father's side, Dehigame Angemulle Nilleme, and the claimant's father having been brothers, and he contested that as the property had been the absolute property of his cousin, the priest, and as he the claimant was the paternal cousin of that person he had a preferable claim to be his heir over the defendant, who was only maternal cousin to the priest. But the chiefs who sat on the trial, as well as those subsequt^ntly consulted, were unanimousi- ly of opinion that as the land in dispute had come to the son of Dehigame Angemulle Nilleme, through his mother, it must revert to the descendants of the first proprietor ffatapola Mahatmea, viz : to the defendant, and the issue of the second and third daughter of 'Watapola Mahatmea- Sir John D'Oyly's notes say " If a man die without father or mother land derived from either reverts to their relations respectively withia three generations, 'and in failure of such it goes to the crown."— Mar. Judg. p. 34' § 9°- . The chiefs say tbat if a deformed sister for whom a suitable match cannot be got in Diga, get herself a suitable husband to live with her in Bmna ; the brothers must give up to her a due portion of her parents' estate according to the number of children ; which portion she can dispose of as she thmks fit, but should she die childless and intestate her share reverts to her brothers and does not go to her husband — Mar. Judg. p 34+ § 95- When a person dies intestate, leaving no nearer relations than first cousins, called brothers and sisters, his or her acquired properly goes in equal shares to such cousins by the father's and mother s side, that is to say, to the children of the father's brothers and to the children of the mother's sister or sisters, share and share alike— Heir- Judg. p. 345 § 98. 138 KANDYAN LAW OF MAREIA8E, {T^phews and Niecea, Widftws and W^dpwera 4. " Nephews and nieces of th e whole blboj sucoei'ded before the brothers of the half blood."— Mar. Jfudg. p. 341 § 88.* Nephews of tbe whole blood, being sons of the several brothers, share alike in the landed estate of an unci* dying childless, without respect to the numbers of each brother's family. *' Thus, if one brother leaves one son, and another brother three son?, the lands of the third brother dying without issue would be divided into four shares, one to each of his four nephews, But if one of the first mentioned brothers were still alive at the death of the childless brothertSuch surviving brother would take a moiety of the childless brother's estate, and the other moiety would be divided among the children of the other deceased brother. At the death however, of such last surviving brother, if he should Oct have disposed of his moiety of his deceasecj childless brother's portion, by sale,^ gift, or bequest, a fresh division of the childless brother's estate will take place among his nephews or their respective heirs, as if his brother had not survived iiim, that is, th? nephew's side, all share alike in the estate of their deceasei^ childless uncle ; Mr. Sawers adds : " It is held that the children of brothers are the nearest of kin to a maa after his own children, and that the children of his sisters are of the same affinity to each other that the children of brothers are to each other ; and that they cannot intermarry, being in fact called and considered brothers and sisters ; but it ia held that there is so little a^nity of blood between the children of a brother aud those of a sister, t'neir custom makes their intermar* riages the most approved connexion. The eon of the eldest brother has a sort of vested right to have for his ■\yife his cousin, the eldest daughter of his father's' eldest sister, and the connexions of the most respect" able families often run in this way, from generat;ion to, generation."— ifar. ^adg- p. 342 § 91. 5. When a man dies intestate his widow and; children are his immediate heirs, bat the widow;, though she had the chief control and management of the landed estate of her deceased husband, has only a life interest therein and at her death it is to be divided among the sons, excepting where there is a daughter^ oir daughters married in Binna ; these or rather their children have the same right tp a share of th^ir ^ee Saw, Dig. p, H, FROM MAMHALL's JUDGMENTS. 139 father's lands as they ; — but on this subject Mr. Saw^ ers atjds under the head '' widows." The widow has na right to dispose of her husband's lands contrary to what the law directs although she has the usufruct of them, unless she t»e thereto specially authorised by litv husband as a means ot securing at least the dutiful obedience of his children ; tliis is a common C!Se, but 11 a widow, being barren, be the husband's paternal aunt's daughter, she inherits the acquired lands, next to full brothers." As to the widow's power to morf gage the land, in certain cases, vida infra, on the sub- ject of the debts due and mortgage ; far ; 146. — Mqkr. Judg. p. 324 § 48.* Soon after the Kandyan districts came under the appellate jurisdiction of S. ('., a case was bi ought upi in appeal, in which this limiialion of the rights of the widow to a mere life interest came in question, A widcw, finding herself excluded aliogether from the estate of her late husband, insiituled a suit against the representatives, and on thiir admitting her cliiim as widow, obtained a decree nth June, 1824, by which certain fields, forming about one-sixih of theesiate, were awarded to her in full ownership ; and in this decree the heir acquiesced, without appeal. In May I 829,' the widow, in consideration of assistance, trans- ferred these fields to one of her children by her deceased hqsband, to the exclusion of the resi, and on her death in 1833, the present action was brought by the excluded children, contrary to Kandyan law. The Coijirt of the Jijdicial Agent considered it unnecessary to bear evidence, and decided the case on the docu. ijients produced, viz : the decree of 1824, aid the deed of 1829. The first Assessor was of opinion that the widow bad obtai;ied an absolute right to the fields and, could therefore dispose of them by will. The second Ast-essor considered that supposir)g the widow to haye obtained an absolute right under the decree, still she oiJgbi to have shewn in the deed of tratister, spiiie reason for disinheriting her other childrep, or should, at least, have expressed her inteiition so to do- The Judicial Agent was of opinion that the meaning of the decree must have been, that the widow should get no more than a life interest in the field.^, which at her death ought to revett to the heirs generally, and that though a distinct share had been assigned to htr, it *■■ See Sa^o. Dig. pp. 1. 14. 23, 140 kandYan law or jiarriaCE. could not have been intended to give her the power of alienation, as her husb nd had died intestate. It Was, therefore, decreed that the Notarial deed should I'e set asidf) and that th- land in dispute be held by all the sons in Tattoomara. like the rest of the property.. The S. C , however, on the case coming before it in appeal referred the case back to the D C, to receive proof of the Notarial instrument [vide supra : par : 112] of jth May, 1829, unless it should be admitled by the plaintiffs, and also proof of the assistance and support rendered by the delendant to the tnother of the parties, in fulfilment of the conditions of that deed. There is nothing " the judgment observed" in the decree of 1824 to limit the right~of the widow to a life interest, unless, therefore, such a decree would have been contrary to law, there is no reason to con- strue it in that limited sense. The general rule, it is true, is that a widow has only a life interest in the estate of her deceased husband, but then she is sup- posed lo have the chief .uperintendence and control of the whole estate for her life. Now here she was deprived of these advantages and was obliged to sue her sons for her portion as the means of supporting herself. They admitted the justice of her claims, and accordingly the court awarded her, not a life interest in the whole estate, but a part which it appears she had possessed before, and that part was decreed to her without restriction or limitation. If the sons had been dissatisfied with this unqualified award they should have appealed against it. — Not having done so, and having admitted the justice of their mother's claim it must be taken as an actual division and separa^ tion ol the share so allotted, and therefore that she had the right of disposing of it, or at least of directing to which of her children it should go. For it is to be observed that she does not attempt to alienate it from the family of her late husband ; the answer to the ob- jections of the second Assessor is, that she does give a reason for so disinheriting the other children, or rather for the preference which she gives to the defendant, by saying, in consideration of support rendered and to be rendered &c. [As to the power of disposing pro- perty away from the heir-at-law, see the following paragraph.] If, therefore, the defendant shall appear to have really and bona Jide fulfilled his engagement of supporting his mother, he ought to be considered entitled to retain posse^isioii of the land in question ia FROM Marshall's JTJDGMENia, 141 pursuance of the Notarial deed, supposing that instru- went to be duly proved. Evidence was accordingly gone into before the D, C, and the deed and assistance being both established, the S. C, on the proceedings being returned, with the evidence so taken, decreed that the defendant be confirnned in the possession of the land awa 1 ded to him by the deed from his mother. No. 7044, Ratnapoova, 2t5th October, 1833, and a3rd July, 183+.— jl/ar. Judg. p- 3+a. § 49. " A widow, of a bus band dying childless, has the same life interest, and that only in the husband's landed property, whether heriditary or acquired, as the widow of a husband haviog issue, but if the widow be a second wi'e wiih issue, and there be issue by a former wife, the widow or widows must depend upon the shares of their children, and if the share of one of the widows should be insufBcient for her and their support, the widow shall have a temporary allowance out of the other share." — Mar- Judg- p ^16 § 50 * " A widow lo^es her right and life interest in her husband's estate by taking a second husband, con- trary to the wish of her first husband's family, or by disgraceful conduct, such as glaring profligacy or adultery, or by squandering the property of her de' ceased husband : any one of these acts being proved against her by the cliildren would subject the widow to expulsion from the house of her late husband, and deprive her of any benefit from his estate." — Mar. Judg.p 3%6 § ji.t " A widow having the administration of her de- ceased husband's estate may, during the minority of her children, mortgage the landed property, if neces^ sity require it. But this must be clearly to satisfy the necessary and urgent wants of the family, other., wise ihe children might not be held liable to pay the debt ; but in all cases, where the children are as much as 14 or ij years old, their consent is necessary to reader such mortgage valid against them and their lands."— A/ar Judg. p. 3$^ § 14'.! ' " A widow may appoint a guardian for h'er childor children, with the right to inherit such children's pro- perty, in the event of their dying in minority and without issue, but such guardian, appointed by the * See Saw. Dig. p. I. t See Saw, Dig, p. 2, X See Saw. Dig. p. 33, 142 KANlWfAN iAW OF MAEBIACH!. mother, will not inherit the property, which the ward inherits through his or her father, which will revert to the father'is iam\\y."—Mar. Jud'g. p. SS^ § '24> Section 4i. (From Thomson's Innsi/itutes.) I. Marriage not valid unless registered,- and parties are off age, — 2. Exception. — 3. ProhiHted marriages. — 4. Require- ments of a lawful lifiarriage. — 5. Gtounds of divorce.— 6i Children how ligitimated. — 1. Husband, and wife.— 8. Pa- rentaand children. — 9. Brothers and sisters. — 10. Nephew*, and nieoeB.^ — 11. Widows and widowers- Marriage BOt valid un- p. No f ul ure marriage shall be valid unless regis- lies Trf ofage.' ^""^ *'"' '^'"''^ and solemnized in the presence of the registrar for the district,, and at such house or other place as the Governtnent Agent shall from time to lime direct ij, )v nor to which the male party is under sixteen years of age, or the female under twelve years (§; 3.)— TAom Inst. Vol. II. pi 6o^.f 2. All existing marriages, if con'racted accord* ing to the laws,- institutions and cusloins in force amongst the Kandyans, are valid (§281) — Thorn. Insf, Kol. II. p. 61 7. J 3. No marriage is valid where either party is directly descended from the other : or where the female is the sistep of the male, either by the full or the half blood,- or the daughter of his brother, or of his sister by the fall or the half blood,- or a deseendant from- either of them, or the daughier of his wife by another father,, or his son's, or grandson's, or father's,.or grand* father's widow ;- or where the male is the son of the brother or sister of the femafe by the full or half blood, or a descendant from either of them, or the son of her husband by another mother,. or her deceased. daughter's,, grand-daughter's, mother's, or grandmother's hus' batid. Any marriage or cohabitation within the above enumerated degrees is i-neest, and punishable with im^ * See SaiB. Dig. p. 22. f See Ord. No. 13 of 1859 5 2 and 3. t The 29th Section is repealed by the Ord. No. 8 08 1861. See Thomson Vol. 11. p, 619, Ezeeption, Prohibited marriageB. JEOH Thomson's ikstetutes-. tss prisontnent with or without hard labour for a period not exceeding oneyear (§ 5) Thorn. Inst- Vol. 11. p. 6jo. Aiiy marriage, civil or religious, during the life of a former husband or wife is void, except where the party to the second marriage has been divorced, or ■*here the first marriage shall have been decreed void. (§ 6).— Thorn. Inst. Vol. 1 i.p. 6[i.* 4. The father, if living, of any male under twenty- one years, not being a widower, and of any female under sixteen years,, not being a widow j or, if the father shall be dead, the guardian or guardians of the party so under age, lawfully appointed,- or one of them j, has authority to consent to, and to forbid such future marriage}, and sBch consent is required for the maniage of a party under age, unless there is no person autho.. lized to give consent. If the father, or the mother,, guardian, or any one whose consent is necessary to the marriage, is non compos menti» or not in the Island,. the person desiring to marry may apply to the judge of any court of record within the district in which such person resides, who may determine such applica'- tion in a summary way : and if the marriage proposed shall appear to be proper, the judge may certify it tc be so, and- the eerii&cate, unless set aside in appeal, is- as effectual as if the father, mother, or guardian had consented to the marriage. (•§ 4.). — Thorn. Inst. Vol. is. p. 6io.t 5. No suit for divorce can be maintained, except upon the grounds of adultery by the wife after mar- riage, or of adultery by the husband after marriage^ eomoiitted with any person within such degree of eon' sanguinity as aforesaid, or of adultery by the husband' accompanied with gross cruelty, or on the grounds of compllBte and continued desertion for the space of five years. The court may decree the dissolution of any existing marriage (unless the same shall have been registered, as provided by the 29 ih clause) on proofi that the parties to the suit mutually consent to such- dissolution (§ 3 1). — Thorn. Inst. Vol. 1 1- p. 61 7.+ 6. Every marriage contracted- or registered under the Ordinance renders legitimate any children pro., created by the parties previous to their marriage ; and * See Ord. No. \3 of 18S9 § 5 and 6. same Ord. , t See Ord. No. 13 of r859 § 4. t See Ord, No. 13 ot 1859 i 31. See also § 33 of the Requirements of law- ful marriage. Grrouuds of divorce. Ghildren mated. how legUi' 144 KANBTAN LATT OF MARRIA«E. mich -chi'dren are entitled to the same rights as if they had been procreated after marriage, provided that the children have not been born in adultery. (§ ja),— 'Thorn. Imt. Vol. lu f. 6i8.* Husband and "Wife. 7. The husband is not the heir to his wife's landed parveny estate which she inherited from her parents, nor to her acquired landed property ^ that, on the -contrary-, the moment the wife dies, the husband loses all -interest in her estate, which, if she has left ■no issue, reverts to her parents or their heirs 5 and that, though the wife is entitled to the entire possession of her deceased htisband's estate, so long as she con* tinues single and remains in his house, yet the husband must quit his wife's estate the moment she dies.— Whom. Inst. Vol. 11, p. 643 t A. wife dying barren or without surviviag -children, all the property which she received from her parents reverts to them, or to her brothers and sisters, and their issue. The husband inherits all the property acquired during the coveitu'e.; but the property acquired under a former marriage, or when single, would go to her ■nearest of -kin in her own family^ but, failing brothers and sisters and their issue, the husband comes in before the wife's uncles or aunts and their issue.— Thorn. Inst. Vol. 11. p. 653. J If a wife and children are obliged to quit the hu9.i band's house from the means of subsistence failing to be S'ufiicient for the whole family, tliis does not pre- judice the right of inheritance of her or her children to the property of the husband. — Thorn. Inst. Vol. 11. p. 647 § If a Beena husband contract a debt without the consent or knowledge of his wife, she is not liable to pay it. A Biga wife is liable to pay the debts of her deceased husband, whether she have inherited property from him or not. The husband is liable to pay such debts of his wife as she has contracted for the purposes of the family ; but not such as have been unnecessarily contracted, and without the knowledge of the husband.— TAoTO. Inst. Vol. 11. p. 6j5.|| * See Ord. No. 13 of 1859 § 32. + See Mar Judg. p. 339 § 81, see also Saw. Dig. p. 8. t See Mar. Judg. p. 348 § 108, see also Saw. Dig. p. 16. § See Mar. Judg. p. 343 § 93, see also Saw. Dig. p. 12. II See Mar, Judg. p. 351 § 117, see also Saw, Dig p, 18. FROST Thomson's ikstitctes. M^ 8, Tbe eldest son bas no right to a better share of the estate of his p .rents than his other brothers and !■*'■«"'" *^* "Mdren, his sisters having Binna husbands, — Thorn. Inst. Vol'. 11 p'. 630*. If, however,.a daughter, who has been given out in Uiga,, should afterwards return to I he house of her parents, with the Gonsent of her family,, and there marry a £i7;Hffi' husband,, the issue of this eonnectiow will' have ibe same right of inheiitanee in the estate of their roaternnl grandfather or grandmother as the /issue of her uterine brothers. — Thorn. Inst Vul- it On failure of the is=ue of sons and of daughters married in 'Bmna, a D^ai married_ daughter would! succeed j. I ut il she be dead, her father's brothers sue. eeeded before her children ;. and again,, if the brotliers- be dead,, the D^,a daughter's children succeeded before- t'he children of her father's brothers. On this point,, Mr. Sawers observes, there appears to be a considi^r- able degree of uncertainty ;;but the chiefs seem pretty unanimously of opinion that where two brothers have possessed the family estate undividedly, the one brother would si eceed to the other in preference to the other daughters martied in Tliga ;,but where the family- estate has been divided, and so possessed by the two brothers,, the children of a Diga married' daughter would suc- ceed to their maternal grandfather before their graodt father's brothers J and, ev«n in the first instance, that is, where the brothers have possessed- the estate un- dividedly, the children of the UigamHrried daughter, if they btcome destitute,- but not otherwise, wt uld- have a right to claim support from their maternal grandfather's estate, though the parveny right to that * See Mar Judg. p. 327 § 52, also Saw. Z)jg. p. 3.. + See Mar. Judg. p. 328 «j 54-, also Saw. Dig p. 2. U-t is as well to notice here that, the rule of succession un- der the Kandyan law which the Supreme oart now recog- nizes is per stirpes', the doctrine of suooession jyer capita, having long since been overruled. Ihis, however, oaly ap- plies to'jjaif ij»ai inheritance, the maternal being governed by (he old doctrine J361' crt??»to. — Ed,]. [Note BY. Justice Thomson.]— The plaintiff, as only child' of A by his first marriage, is entitled to inherit one half of the lands ; and the children of his second marriage are en- titled to inherit the other half thereof, subj.eot to his widow's claim to maintenance from auch latter half, even if; A is to be considered sole proprietor, from prescriptive right, to his brother's share. (4375, D. C. Colombo, No. 6, 2o- Julij, 1844.) H'C KANTIYAN t,kV ttF MA11UIAG15, ■estate wcmld be in their giand-unde, maternal grand* feather's brothers.— r^w. fnst. Pel i i p. 632.* A •daughter having a Binna husband in the house ■oi her parents, ber children have the same right of i'nheriiance to the estate of their mother's brother* ; but if the children of the daughter having a Binna hu-band inherit any considerable landed estate from tlieir father, in that case their thire of their mother's familj estate would be proportionatrly diminished. — Thorn. Inst Vol. 1 1 p. 633,t A da'Ughiei: married in Binna, quitting her parent's house with her children to yo and live in Biga with her husband before her parent's death, loifeiis thereby, for herself and- her children, the right to inherit any share of her parent's estate [she having at the time a brother or a Binna married sistei], unless one of the children be left in ber parent's house. Four of the Chiefs, Mr. Sawers adds, are of opinion that the daughter previously married in Binna may reserve for herself and her children ber own and their claim on her parent's estate, by visiting him frequently and ad. ministering to his comfort, and especially by being present, nursing and rendering him assistance in his last illness ,- and this would especially be the case where there were two daughters and no sons, either in re-establishing the right of one to the entire estate against the other daughter married in Diga, or . for half of the estate if the other daughter be married in Binna. But if there should be a son besides these two daughteis under the above circumstances, and he living at home; in that case the son or bis heirs would get half the estate, and the other moiety would be divided between the two daughters, or their heirs. But should the son have been living out in Binna and the parent have been depending on his daughters and their husbands for assistance and support, in that case he would only be entitled to one^third, and the daugh. ters or iheir children to one^third each.— TAom. Inst. Vol. II. p. 6si.t A daughter, being the only child of a man's first, or second, or third marriage, will have equal rights with her brothers of the half blood. in her father's estate, even if given out in Diga. But where there is an only daughter, or only daughter of one bed, though * See Mar. Judg. p. 328 § 55, also Saw. Dig. p. 2. T See Mar. Judg. p. 328 § 36, aUo Saw. Dig. p. 3. X See Mar. Jndg. p. 329 § 57, also Saw, Dig. p. 3. ?ROM Thomson's institute. 147 such daughters would have absolute or parveny lights in their shares, they woul 4 A son becoming a. priest thereby loses-.all. right of; inheritance in the property of' his parents ;. because to- take the robe is to resign all worldly, wealth. Nor shall he be restored to his right of inheritance by-; throwing off the robe after his father's death, unless he shall have dbne so at the request, of his brother, or. by the unanimous request of his brothers, as the case may be ; in which event, he will have a right to that share of his parent's property which would have fallen to him bad he never taken the robe. But should one brother, without the consent of his other brothers, being lay.raen, induce the brother, a. priest, to throw. off the robe, then that brother shall provide for the Sewralle out of his own share of the property solely j and the Sewrcdle shall have no right to demand any portion of the shares of his other lay. brothers. But should a priest be stripped of his robes for some vio- lation of the rules of his order,, or should he throw it off from caprice,. he has, in either case,. a right to sub.;, sistance from the estate of his psireats.— Thorn, Inst^ VoLii p. 6^i.f The foregoing rules of the law of inheritance apply, only in cases where the caste of the parents has been equal ; for the children of a wife of inferior caste to that of the husband cannot inherit any. part of the- parveny or hereditary, property of the father that * See Mar. Judg. p. 336 § 76, also Saw. Dig. p. 7. t Sie Jtf (w. /udg. p. 337 5 7.7i »lso Saw^ JHg, g. 7^ FROM Thomson's isstitutes. ISli has descended to him from his ancestckrS) as long- as a descendant, or^ one of tbe pure blood o& t*iose ancestDrs, howevier remote,, remains to inherit.. Bui the issue of: the low-^CHSte wife can inb< n't the lands acquired by their father, wb ther by^ purchase, oh by gift from strangers-;, and shi uJd no provision oti this kind exist for- the children of a low-caste- wife,, they will,, in that case, be entitled to temporary support from their father's hereditary, property. -tT!Aoj«. /»i/j. Kol. II p, 641.*' Failing immediate descendants, that is, iatue of his; own body by. a wife of his own or of, higher caste, as man's next heir to his lan-ded propjerty (reserving the-- widows' life interest) is his father, or, if the father be dead, the mother 5. bu-t for a life interest only [;his- limitation to a life interest seems, hawever to be io-. contradiction to what will be. stated in. Pf 9 by which the mother is-stated to be absolute heiress at law, ta. )ier children dying withoat i.^sue, and. ta have the power of disposal o! the father's parveny estate, which.. she inherits through them], and on the s^rae condi. tions- on which she holds her deceased hu«band's estate, viz,: in trust merely for her children [and this- limitation to a trust or- life interest seems to apply to,, the fatben equally as to the mother, in the case of acquire d. property] 'J if the father and. raother.be both; dead, tbe brother or brothers- and their, sons, failing, brothers and- their sons, tbe sister or sister'^^sons Bucr- ceeded.^T^biw. Inst FjoL- 1 1 /i_. 642. f\ A sister's son has not a preferable rigid to the-- brother's daiighler,_unless hehas-heen adopted by-his- uncle j,and therefpre that, .failing a brother's son, the.- property shouJd be divided bnween the sister's ton., and the brother's daughter. Eat should the. nephew, have been neglec'ed while the uncle was initrumental in procuring a Biana husband for his ni ce, and appear- ing otherwise to take a paternal solicitude about his^ niece, in such case she would be ler uncle's sole heiress rather than the nephew, being a sister's- son. — Thorn. Inst. Vol- 11 p. 642.^ * See Mar. Judg. p. 338 J 78, also daw Dig. p. 7; T, See Mar. Judg. p. 338 § 79, also Saw. Big. p. 8. ■ t See Mar. Judg. p. 338 |.80, n\so Saw. Dig,^- 8. [Note BY Jdsticjs Thomso,n]. By the Kandyaa law, nephews and. nieces of tbe whole blood succeed before nephews and nieces,, as well as brothers even, of the half blood. (Sawyer's Digest,, p. 27 : 971 Z>/ C, Seven Carles, October 261h, 1836 : Morgi. J). 101.) 452 KANDYANLAW OF MAaRtiGEi The mother is heir to her children, even in th* parveny property of her deceased husbafld, through them. Bat if she die intestate, the estate will reirert to her husband's family, whose paiveny property it "was J with this exception, that, if the mother has •children, either by a former or subsequent hatband, these children, bs'ing the ultimate brothers and sisters Of the children through whom she inherited the estate, tvil inherit the same from heif. And children of the •same mother by different fathers are reciprocally heirs to each other, after the children of the whole blood , although she has the usufruct of them, unless she be thereto specially authorized by her husband, as a means of securing, at least, the dutiful obedience of hia children ; but if a widow, being barren, be the husband's pater- nal aunt's daughter, she inherits the acquired lands next to full brothers* — Thorn. Inst. Vol. up. 628.* A widow of a husband dying childless has the same life interest, and that only, in the husband's landed property, whether hereditary or acquired, aa the widow of a husband having issue ; but if the widow be a second wife with issue, and there be issue by a former wife, the widow or widows must depend upon the shares of their children ; and if the share of one of the widows should be insufficient for her and their support, the widow shall have a temporary allowance out of the share. — Thorn. Inst, Vol. 11 p.62g.f A widow loses her right and life interest in her husband's estate by taking a second husband contrary to the wish of her first husband's family, or by dis-* -graceful conduct, such as glaring profligacy or adultery, or by squandering the property of her deceased hus- . band. Any one of these acts being proved against her by the children would subject the widow to ex- pulsion from the house of her late husband, and de. prive her of any benefit from his estate. — Thorn Inst fol. 1 1 p. 629 I * A widow is entitled to the moveable property of her deceased faasband ; and her own children cannot call upon her for a division until her death ; but the children of a former marriage of the husband, may claim their share. (Sawer, 14 ; Marehall, p. 345, par. 102 : 14828, D. 0. Badulla, 13 August, 1858.)— See Mar. Judg. p. 324, § 48. t But if she has been left in a state of destitution, and has received land from a brother for her support, having a legal claim for assistance from him, her re- oeceiving a second husband at hia bands was a natural and snfScient consideration for the gift of the land to her, at least for her life. (6332, Gov. Ag. Korhegalle, Morg. D. 5.)— See Mar. judg. p. ;326 § .50. :^ If a woman has become divorced from her bnsband, or ia a widow destitute of the means of support, she wonld have a right to return to the house of, her parents, and there to have lodging, support, and cloth- iog from her parents' estate ; but when she fails to pro- 160 KANDTAN LAW OF MARRIAGE. When a man dies intestate, his widow and children are his immediate heirs;* the widow having the custody aod administration of the property as long 34 she lives in her husband's house, conducting her> self with prudence and circumspection, and doing nothing to cause shame or disgrace to the family, nor squandering the property. Provided the widow thus conducts herself wiih propiiety, her child-en cannot call for a division of the property till her death, or till she quits her deceased husband's house ; but the children of a former marriage of the husband may claim their shares. The widow is entitled to no more than a like share as one of the children. — Thorn, Inst- Pol. 1 1 p- 6jo. But she is besides entitled to what was con. sidered her own wearing apparel, jewels and orna. nients, commonly worn by herself and given to her by her husband ; also to all the property the may have. brought wiih her or her marriage, and what shp may have acquired hersell in the shape of presents^ gifts or bequests, or what she may have purchaseii ■with the produce of her own hands, or gained by trade. Cattle are considered to belong to that des- cription of moveable property of which she- is entitled to an equal share with her children, out of her hus« band's estate.f A widow, whose husband has left no issue, is entitled, at her husband's death, to the •whole of his moveable property, including money, grain, goods, slaves, and cattle, unless the three last mentioned have been heirlooms in her ha&baod's family; that is, what he had inherited or received with the landed estate of his ancestors. But all goods or cattle acquired by the husband during the coverture, by purchase or by gift from others, the widow is entitled to a share of the produce of the slaves or cattle, being of the original stock of the husband's family. On leaving her husband's house, the widow has a right to carry with her all such pro- perty as she is entitled to as above sta'ed. Bui if duce evidence to this effect, she will have no suoh claim. (7901, D. 0. Kandy, 14 Sept. 1886 ; Mora. D. 96.)— Sea Mar. Judg. p. 326 § 51. * (NoTB Bi Makshall, 0. J.)— The following are Mr, Sawer's Memoranda of the Kandyaa Laws which re- gulate the sucoassion to moveable property.— ilf or. /wdj). p. 345 § 102, also Saw. Big. p. 14 + See Mar, Judg. p, 346 § 102, also Saw, Dig. p. 15, FROM ibomson's institdies. 161 her husband's family lands have been burthened with debt, or mortgaged by her husband's ancestors, the widow must give up as much of the moveable pro' party as will amouDt to half the sum necessary for the disburthening or dismortgaging tbe landed pro^ perty of the deceased husband : and if the deceased husband had himself so burthened or mortgaged his family estate, then his moveable property is liable, to the. Ust article, to he disposed of for tbe liquidation of the same ; in which case, the widow would get nothing, if the debt of the deceased exceeded the value of his moveable property to which she would piherwise be entitled. — Tfionf. Inst.VoL li. p. 6j9.* At the death of the widow, the moveable pro. perty is to be divided equally aimong the children,' except the daughters who haVe already received their BharfS on bein^ given oiit in marriage. — "thorn, Inst. Vol. 11. p. 6^2.f In the event of there being no children; the widow inherits the whole of the household goods, grain in store, and the cattle which have been acquired, to- gether with the increase in the husband's stock of estate subsequent to tbe marriage. The property," however, which the husbafnd had inherited from hia parents is generally claimed by his nearest kindred^ and the widow has no share of it. — Thtiin- Inst. Vol. II p. 652. J A widow, having the administration of her de.' ceased husband's estate, liiay, daring the minority of her children, mortgage the laiided prbperty, if neces-.' sity require it- But this riiust be clearly to satisfy the necessary and urgfent wants of the family, other- wise the children might riot be held liable to pay the debt. But, in all Cases T*here the children are as much as fourteen or fifteen years old, their consent is necessary to render such mortgage valid againsfc them and their lands.— rAom. In'j*. 7oZ. ii. p. 667 § A widow may appoint a guardian for her child of children, with the right to inherit such children's property, in the eVent of their dying in minority andf without issue 5 but such guardian, appointed by thd * See Mar. Judg. p. 346 § 102, also Saw. Dig. p. 22. + See Mar. Judg. p. 347 § 103, also Saw. Dig. p. 15. X 6ee Mar. Judg. p. 347 § 104, also Saio. Dig. p. 15. § Sfee Mai: Judg. p. 359 § 146, also Saw. Dig. p. 33, ;^62 KASDYAS LAW or MARRIAGE. tnothe", will not inherit the- property wbich the award inherits through his or her father, which will leveft to the father's ia,v^ily.— Thorn. Inst. p. 657.* loheritauce to proper- ty regulated by the nature of parents' mar- riage. Different kinds of mar- riage. Marriage in Binna, • Section 5. (From Solomons' Manuel.} I. laheritance to property regulated by the nature of parents' marriage, — 2. Different kinds of marriage. — 3. Mar- riage la Binna. — 4. Marriage in Diga.— 5. Requisites to marriage. — 6. Corporeal capacity, — 7. Prohibited Marriages, — S'. PdilgaWy, Poliandry and Concubinage. — 9. Illegal marriages. — 10. Consequences of marriage. — 11, Commu- nity of goods none, — 12, Dissolution of marriage. — 13. Sepa- ration and maintenance. — 14. Separation a mensd.—l5f Death of Wife. — 16. Death of husband. — 17, Kandyan mar- riage Ordinance; — 18. Disposition of property, 1. [In the Kandyan Districts] inheritance to property of any kind by children is regulated princi- pally by the nature of their parents' marriage. — Soh Man. p. 7. 2. Marriages among the Kandyans are of two kinds, generally, known as Binna marriages and Diga marriages — Ibid p, J. 3< A Binna marriage is a contract by which the husband after marriage resides in the house of his wife and is supported, by her, or her relations.— 'liiii p. 7-t This occurs generally where the woman is an heiress and the man in less affluent circumstances, or where the family of the bride has fev^ or no sons.— Iliid. p, y. la a Binna connection the wife is the head of the family, and she alone can regulate the management of the household. :{: The whole property, moveable aad immoveable is subject to her will, while the husband has no control over any portion of it during her life time. He is besides bound to obey her and is subject to all her whims and caprices. She may even order him out of the bouse at any time that he happens to incur either the displeasure of her parents, or what is more frequent the jealousy of herself. § By forming • See Mm: Jndg. p. 352 § 124, also Saw. Dig. p. 22. t See Saw. Dig. p. 34, also Perera's Ax'mourp. 6 § 2. X See Saw. Dig. p. 37, aXaQ- Perera's Arnimir p. 10 S 12, § See Perera's Armour p, 10 § 12, also Saw, Dig p. 37. FROM .SOLOMONS MASTTEl. 163 an alliance ia Binna, a son does not lose his right to a share of his parems' property, — Soi- Mm- p- 8.* 4. A Piga marriage ia where the wife le^ives ber Marriage ia Dlga, parents* place oE abode and takes up her residtnce ia the ho.use of Ler husband. This is of the same nature or marriages amongst Eurppeans and is more common of the two in the ^andjan provinces. \a a I)iga mar- riage, the husband is sole manager of the estate. The wile has no voice in any matter, bijt is bound to let him have the fulldisposiiion of the property. — Ilii. p 7, By marrying in Diga a woman loses her right of mherit-ance to the property of her parehts ; but she acquires instead, new rights from the patrimoney of her husband. — Ibid. p. 8. f 5. The eariciion of the pa^eats to, the alliance Req^uisites to marriage, WIS necessary to constitute a legal marriage ; andj where the parents were dead, the near relatives of the parties should ha,ve approved of the anion.— Ibid. p. 8, At one time no liandyan marriage was considered, \alid unless it had b.een preceded, by fi.ve feasts, which. were given at different times, from the day when the. bride was solicited till the seventh day aftei; the ceje' bration of the nuptials : such as, (i) the formal solid-. ta.ti.on of tti.e bride by the bridegroom, or exchange bi^tween the heads cf the families on both sides of the- messages established by custom, (2) that the horos. oopes pf the parties were examined and found to pro-. gnostigate a happy union, (3) that presents were made by the bridegroom to the bride, or by the family of the former to that of the latter, (4) that the wtedding feast took place when the bride quitted her faithei's house tp reside in her husband's or received her husband into, ber own residence, (5) that the ceremony of pouring water on the heads o£ the bride and bridegroom by some near relative took place on ths seventh day of the nijptials. — Ibid p p.J As these ciicumstances coqld be observed, only by the wealthier portion of the community, they were a/t^r time not considered essential and f^ll into disuse. JVIarrjages were thus considered good,, if ihp parties to th9ni were pf the same caste, social respectability and rank ;, if tha consent of the parents or guardians on both sides bad been obtained ; and if the relations of * See Perera's Armour p. 56 § 9, also Saw. Dig. p. 6. T See Perera's Armour p. 5 § 2, also Saw. Dig- p. 34. + See Perera's Armour p. 5 § 3, also Savi. t>ig. p. 34, 1'64 KANbYAN LAW 01" MAREIAGE. the parties to the third or fourth degree couatenanced and sanctioned the unidn. When there was any doubt of the man and woman being of equal rank the matter was decided by proving inter marriages between the ancestors of each of the parties. — Sol, Max. p. 8. But the want of this sanction on the part of the i-elatives of the bridegroom, or the omission of the wedding ceremony, or the fact of the bride's family holding a lower rank, would not invalidate the contract, if the . parties, happened to be of the same caste, and if the woman had been publicly acknowledged as the man's wedded wife. This applies to the case of a man whose parents are dead at the time of hia mar- riage. — ibid. p. S- The validity of a marriage solemnized before the passing of the first Kandjfan Marriage Ordinance No. li of 1859 is proved by adducing evidence of the usual ceremonies having taken place. — Ibid. p. 9.* Cor|toreal capacity, (5. Marriages could be entered into by young tiien above the age of sixteen, and, as it would appear, by females of any age, with the consent of their pa- rents or guardians, though a young man is allowed in certain cases to marry without the consent of his rela' tives. Women could never contract marriages unless the parents^ relatives, or guardiani) had sanctioned them. The fact of a woman having obtained her majority made not the slightest difference — the parents or guar. dian's consent was indispensable. — Ibid. p. 10. f Prohibited marriages. y. Among Kandyans some marriages were pro» hibited on account of consanguinity, affinitj, or olhec causes. — Ibid. p. 10, (a) Marriages between pefsons who were more closely related to each other than first cousins were absolutely void. — Ibid. p. 10. (b) Marriages between the children of two bro* thers or of two sisters, — Ibid. p. ro. A. man who married a woman within the degrees of kindred prohibited by the law, or had any inter' course with her, were liable to be punished' for incest* Ibid. p. ro. But marriages between the children of a brother * See Perera's Armour p. 5 § 4, alao Saw. Dig. p. 33. See also. No. 12 P. G. Kegalla, under the Marriage Ordinance, decided in appeal, 8th September, 18&3.— Examiner, October 3, 1863. t SsB Perera's Armour p, 2, alao Saw, Dig. p, 23, YBOM SOLOMOifS MAKUEL. 166 •&ad tl>e children of a sister were very common, ,and were by the natives considered the best matri menial alliances that could be made.-r&ol. Man. p. lo. * 8. Poligatny, Poliandry and Concubinage were allowed amongst the Kandyana with certaia restrict iions.—Ilvd.p. i2.t (a) A husband married in Diga could bring as many wives to his house as he thought proper wibboat the consent of his first wife. (U) The wife of a man married in Diga could not take a second husband to herself without the consent of the first spouse. The w-ife could not be eompelled by lier husband to receive a second asso- ciated husband, even where the latter was the .brother ot the first. Besides which the consent of the wite'd family to. Each a connexion was required, where the second, associated husband did not happen to be a brother of the first. — Ibid. />. n. { (c) Concubinage was looked upon as almost of equal force as lawful marriage. If the woman was of the same caste as the man, and if the man himself or his family did not take some decisive step to break up. or protest against theconnection, it would be consider- ed a lawful marriage, and the issue oi'ii have all tho privileges of legitimate childrflD. — Ibid. p. 12. § But casual intercourse by a married man with the wife of another would not be considered a mar- riage. And if in such a case the man were, to die, the woman with whom he had intercourse would not be acknow'ledged, or have the rights of his widow. — Ibid. p- 13- II 9. If it happened that a man formed an alliance againbt the wishes of his parents or guardians, or with a woman below him in caste, or was notoriously of bad repute, such a marriage was not considered lawful nor was its issue deemed legitimate. In such a case, the children could not claim anything which their father inherited from his ancestors. They would have a right only to the property which he had * See Perera's Armovr p. 8, also Sq,w. JDig. p. 37. t See Perera's Armour p. 7 § ff, arid ;3. 9 § 10, also Satt, Dig p. 37-38. t See Pel-era's Armour p. 9 § 18, also Saw. Dig. p. 37. § See Perera's Armour p. 7 § 6, alao Saw. Dig. p. 38. Il See Perera'i Armour p, 7 § 5. Poligiim'y, iPoIUndry and Coacubiaage, Illegal marriagsi, 166 KANDTAN LAW OF MAKKIASl. himself ac(|uired by purchase, or otherwise indepen. dently of his parents. And in the same way, a woman who married a man ef a lower position for- feited all her rights to her pravenr or ancestral' pro^ perty.. But she was always entitled to claim mainien- ance from her parents, or, tf they were dead', from the brothers,, sisters, or, other relations who succeeded t» the property which she would have inherited but for her marriage. It was the praetiee under the Sandm- an Sovereigns, where a woman nnarried a man of a lower caste,, to sentence her to staffer capital puaish. ment y but the sentence of death was in most cases mitigated to one of perpetual slavery. — 8ei. Man. p. 9* CoDMqttMoei of VOX' i*- ^here is a very great difference between the lisge, consequences of marriages contracted in Binna or Digs in the Kandjan territofy, and the consequences of those contracted by Europeans and Burghers in tha Maritime provinces. By the English and Roman Dutch Law, all the property belonging to the wife at the time of marriage becomes vested in the huflbaqd, and is placed at his absolute disposal, unless there exists an ante-nuptial contract to limit his powers. But in Kandy the husband has no control! over the property brocight by the wife on her marriage in the shape of dowry, or which she acquires during coverture by her own personal exertions, nor has the wife coq' trol over that of the husband. The husband or wife cannot sell or encumber any portion of the estate of the other party, or dispose of it by last Will without his or her special consent and sanction. Nor is the husband bound to pay any debt contracted by his wife before marriage, or on her own account daring covers ture ; but he is liable for those debts which the wife had contracted after marriage under circumstances of necessity. The husband is not bound to answer claims preferred against his wife ; he may decline to act as defendant on her behalf, or even to prosecute any claim which she may have against another party. But if the husband were absent from home and the ivife and family reduced to great necessity, she is looked upon at law as agent and manager of her hus> fraud's affajrs, and may hnortgage the lands or sell their produce to procure subsistence for herself and her children. The wife can possess property in her own * See Perira't Armour p. 8 I 7» aUo Sws, Dig. f, 3li Se» alsQ AwHin p, 235, EROIP SOEOMONS* iTANTIEl;. t6T »ight, mortgage and encumber it at her plfiasure ;:she ma^' ^contract witb third parties without her hus- band's knowledge or consent and sue them at law in her own name ; she may contract with and sue her husband himself,, and if successful may, according to Marsha!!^ even issue writ of execution against his property. The wife's property is not liable to be seizi ed m execution for debts contracted by the hu^bandl before or after marriage, unless the wife had given her sanction to her hu- band's contracting such debt, on had bound herself as surety for its payment, neither js the wife's property, inherited! or acquired,, liable to be confiscated on account of her husband's treason, ^gainst the State.— goi. Man. p, lo.* . 1*. In short.- the general principle is that there no^e""""""^' °' ^°°*^ IS no commtmity of property between husbands- and wives in the K.an 4QWry. She will,, however, be entitled; to the property, moveable or immoveable,, which she may have acquir' ed during the coverture through her own exertions independently of. her husband'. Jn cases where the .husband repudiates his wife without a sufficient cause,. she is entitled to remove from his house all the wear- ing apparel which may have been presented to her by him. But if the wife left the husband against hi& wishes, she would have no right to any portion of her property, not even to her wearing apparel,, however idestitute she might be.— ISid. «. i a. 1 o^ »■ j • , * ...t' '• + , . ,. , Separation aud main- i'3, A woman married in Diga, who is divorced teuaoce. by her husband without a sufficient cause, is entitled to maintenance from him ;. but if she voluntarily left him, or if the reasons which led to the dissolution of * See Perera's Armour p. 10 § 12, also Saw. JMg. p. 37. -ff See Perera'a Armour p. 9 §. 11, also Saw. Dig. p. 34» J See Perera's Armour p^ 13 § 17, alsoiSai*. Dig. p. 35i \i68 'KARbYAi- LAW OT MAKBIA"6E. the marriage were satisfactory, she will have no claim ijpon him. In the same way, if the parents removed her from his house without a just cause, or if she ■cleserted him or left him against his wishes, the hus- band willnot be obliged to provide for her main, tenance. Should a wife he divorced frotn her has- ■band, when in a state of pregnancy, and her family be in indigent circumstances, any gangsabe to which she tnay appeal will award her a sniiable maintenance from her husband, until she gives birth to the Child, and the •child attains an age when he could be given over to the tiusband. But should she, after the child has at- tained a sufficient age to be taken under his care, refuse to give him "Dp to the father — which she may do if she pleases — then the wife will have to support the child herself. A woman who has left her husband will not be entitled to maintenance from him if, after the divorce, she contracted a second marriage. If a womaa abandoned her husband, carrying away with her any ■children that may have been born to hira> then in the event of his death before her return to his house, she will not be entitled to claim for herself maintenance IrcMu the parents of her late husband^ or any portion ■cf the estate for her children as long as she retains Ihem in her custody. But, if on the death of the huijband, she gave up the children to her husband's parents, and if she did not afterwards contract a b^coiid marriage, then she will be entitled to maia^ tenance from hei father and mother-in-law. — SoL Man, p. 13.* If a woman married in Diga leaves her husband against his wishes, she is not entitled to demand the custody of her children j but her husband can, if he wishes, either allow hor to remove a certain number wiih her, or, where she is Unwilling, can compel her to Inke them. She cannot, however, be forced to take charge of more than ball the number born to hitn. But if a man married in Diga repudiates his wife without a sufficient cause, she may either refuse to take any of the children, or can demand to have one or two of tliem under her management. 1 he children who, in such a case of divorce, accompany their mother to her new lesidence, will not thereby lose their right of inheri* * See Ptf era's Armour i\ 1-4 § 19, 20, also Saw. Dig.p- Sj-36. PROM SOLOMONS MANTTEL. 169 tance to their father's estate. On the dissolution of a Binna marriage, the children will remain with the mother and shall have no claim for maintenance on their father. If a man and woman were first married in Diga, and afterwards removed to the woman's resi.> dence where the marriage was changed into a Binna counection — then, in the event of a divorce, the hus. band may either lemove the children born to him x^hile living in Diga, or he may allow them to remain with their mother ; but in either case he must provide for iheir mainteiianct-. — Sol. Man. p. 13.* 14. A temporary separation between husband and wife will not be considered a divorcp. If owing to domestic differences she quitted his bouse, intending to reiurn after some time; or if she was obliged to leave his house when he was suffering from any con. tagious or infectious disease, and if the husband died bdiore her return, she would be looked upon as his lawful widow and enjoy all the rights and privileges of one. — Itid. />. 1 4 f 15. The husband is not the heir to the landed property inherited by her from her parents, nor to any property acquired by her before marriage. But he inherits everything acquired by her during the cover- ture. On the death of the wife, the husband loses all interest in her ancestral estate, which if she has no issue reverts to her parents or their heirs. The wife is entit4ed to a life intertist in her deceased husband's acquired property, but the husband ceases to have any claim on his wife's ancestral estate the moment she dice. — Hid p 14. J 16. A widow has a life interest in the landed property acquired by her husband during coverture, whether she has children or not. If there are two widows, both are entitled to life interests. A widow loses her right to her life interest by gross misconduct, profligacy and extravagance, or by contracting a second nidrriage against the wishes of her first husband's * See Perera's Armour p. 14 § 18, and p. 15 § 21, also Saw, Dig. p. 35, 36. t bee Perera's Armour p. 15 | 23, also Mar. Judg. p. 343 S 9a. + See Perera's Armour p. 29 § 34, also Saw. Dig. p. 9. and Mar. Judg. p. 340 § 83. Austin p. 66. Test. Case No. 338, 1). 0. Kandy. Test. Case Mo. 13.736, D. C. Kandy. No. 47,197, D. U. Kaady. Leg. Mis. No. 662i, D, O.Ratnapura, Separation a mtnsa. Death of wife. Death of husband. 170 KASDIAN LAW OP MARRIAGK. family. The widow has the control and management of the acquired landed property of the deceased during her life, but has no right to dispose of any portion of it by sale. At her death it must be divided equally among the sons and such daughters as are unmarried or married in fiinna. If a widow dies without chil' dren, all the property which she received from her parents reverts to them, or to her brothers and sisters and their issue. The husband inherits the property acquired during the coverture ; but the property ac- quired by ber before marriage or during a former mar- riage, goes to the nearest of kin in her own lamily Failing brothers and sisters and their issues, the hus- band comes in before the wile's uncles or aunts and their issue.— So/, ilfara. p. I j* Kandyan Mairiaga 17. Marriages under the Ordinance No. 3 of OrdinaDoe. 1870 will be valid, if the man is sixteen years of age and the woman twelve, and if the consent of the parents or guardians has been obtained. The parties must give twenty-one days' previous notice, when tha Registrar shall cause due publication of the marriage to be made by affixing copies of the noiice at his ofBce, If any opposition is made to the marriage, the Pro- vincial or Assistant Provincial Registrar must summon the parties to the marriage, as well as those who op. pose it, and after hearing them and their witnesses decide whether the objections are valid or not. if sufficient cause for staying the marriage is not shewn, the Registrar may at any time af'er the expiration of the twenty^one days register the marriage. Ma'riag^S may be dissolved on the following gounds (i) tduliery by the wife after marriage (2) adultery by the hus- band coupled with incest or gross ci uelty (3) complete and continued desertion for two years (4) inabiliiy to live happily together, of which actual separation from bed and board for a year shall be the test and (j) nrutual consent. The Provincial R 'gistrar or Assis. timt shall, if he is satisfied of the existence of good cause for the dissoluiion of a marriagp, order that it be at an end, and it will then be held to be dissolved wi'h- , oiit prejudice to the children of such marriage born subsequent to its dissolution. Polgamy i'* declared * See Petera's Armour p. 16 § 24, also Saw. Dig. p. 1, I*' Mar. Judg. p. 324 § 48. Morg. Dig. p. 2. Austin p. 210 § 186. Crouilher p. 84. No. 7,044, D. G. Ratiiapnra Nu- 6,754, £), 0', Hatnapura, FROM SOLOMONS' MANUEL. 171 iUe^al and any person convicted of the offence is liable to be imprisoned with or without hard labour for any pieriod not exceeding three years. The ternn moveable property includes furniture, cattle, grain, staves, clothes and jewelry. If a man died intestate, his moveable property is inherited by his widow and children. The widow has the full administration of the property as long as she lives in her husband's house, and conducts herself with pru. dence and circumapection. Her children cannot call upon her for a division of the property ; but the children of a former marriage can, when she will inherit the same share as a child. She is however entitled to the wearing apparel, jewels and ornaments given her by her husband, all property brought by herself on her marriage or acquired by her by purchase or gift during her coverture, it' there are no children, the widow inherits all her husband's acquired properly.— Sol. Man. p. ao. * On the death of the widow, the moveable pro- perty is to be divided equally among the children— the only persons exempted being daughters married in Diga. The eldest son does not inherit more than any other of the children. If a man dies iniestate leaving neither widow nor children, his moveable pro- perty goes to his parents : it no parents are living, to such of bis brothers or sisters as may have len- dered him assistance or support on his deaih bed- Failing brothers and sisters, nephews and nieces would succeed ; failing them, uncles and aunts. One half of the acquired property goes to the heirs on the father's side ; the other to the heirs on the mother's side. Property inherited by a man from his father will on failure'of heirs revert to the taiher's family and the same with property received from the mother. On failure of the issue of sons or daughters married in Binna, a Diga married daughter would succeed. If she be dead, her father's brothers would succeed before her children. If the brothers be dead, her children would succeed in preference to her father's brother's children. If no heirs can be found to in. * See Saw. Dig. p. 14. -Mar. Judg. p. 345 § 102.— Perera's Jcrmour j9. 16. § 24. 172 KANBTAN LATf OP MARRIAOE. hf'rit a man's property, it escheats to the Crown.-~ Ibid, p- 20. * It IS a rule of Kandyan law, that the debts of a deceased party must be paid by those who inherit his or her property according to the respect ive shareR, In the case of sons, the payment ot their father's debts, whether they inherited property from him or Dot, is' enjoined as a sacred duty, but this obligaiioo cannot be enforced in a court of law.— :8oI. Man. p. 21. t SEcnoN 6. (From Morgan's Digest.) 1. Majority according to Kandyan Law.— 2. Husband and wife. — 3. Parents and children. — 4. Brothers and eia- ters. — 5. Nephews and nieces. — 6. Widows and widowers. Majority occording to I, Where a party died in the Kandyan district Kundyuu Law. leaving a child, who was stated to be a miopr. the Supreme Court directed administrgtion to be granted to him, if he were of proper age, on which point the Disiiict Court was directed to require proof; and per Carb, J.— " If the applicant be a minor, the Court should, under rule i8 of sec. iv. appoint the party nominated by him, or some proper person selected at its discretion, to be a guardian to the applicant and grant a limited administration durante minore cetate\o such guardian. The applicant would be entitled to obtain full administration of the said estate on attain' ing his proper age of manhood and discretion, which, according to Kandyan Law, woald be at sixteen years of age, when he would be capable of marriage and competent to execute deeds, and answerable at law lor debts and contracts entered iuto by him. — Morg, Dig. P- «05 §423 ('856). + 2. Belore the secondary proof can be admissible of the contents of a deed, the Court should have satis- factory proof upon oath of its having been surreptiti' ously taken b^ defendants (who plead that it neveir • See Saw. Dig. pp. 2, 3, U— 18.— Mar. Judq. p. 328 § 56 and p. 347 § 105. t See Sew. Dig. p. 18.— Jl/ar. Judg.p. 115.— Nell C.B.p. 167. - Rntnupura D. C. No. 869. T No 1712 U. C. Matale, (C.) Nov. 26, 1836, (R, St. C)— See Ord, No. 13 of 18.^9 § 2 aad 3. PROU morgan's oxassT. 173 was made) ; or else of the loss thereof ■ and that due diligence had been made in searchittg for the same. The vague recollection of the District Judge or Secre- tary, not on oath> that an application was made about the loss of such a Deed by plaintiffs will not supply sucb omission. In default of such proof to support this alleged transfer \)y Deed, the custom of Saffra- ^a,m as to the ri^jht of surviving husband to inherit the landed property of his di ceased wife, by Binna marriage, should be ascertained, Boloswella Dessawa, and the other chiefs, appearing to have expressed opposite opinions thereon as stated in Mr. Sawyer's Digest. The adoption of the second plaintiff would also prob. C»r. Vol. yi, p, 85. FROM Austin's appbal reports. 177 Section 7. (From Austin's Appeal Reports.) 1. Husband and wife. — 2. Farenjbs and children. — 3. jtSrothers and sisters, — 4. Nephews and nieces. — B. Widows and widowers. I. Matala D. 0. No. 19472.— The following is Husband and wife. the decision of the Supreme Court : — "In a former case, the defendant's father sued the husband of the present plaintiff during coverture, for the lands which are the .•subject of the present action. In that suit, theplaiintiff's husband, in his defence, set up a claim to the lands ia his own right, and independent of his wife the present plaintiff. He, however, failed in his defence, and the lands were decreed to the plaintiff in that case. In the present action, plaintiff rests her claim entirely in her own right, and independent of her husband. The defendant has pleaded the judgment in the former case, with other grounds of defence. The Court below has found that plaintiff has established. a title by prescription, but that the former judgment is bmding ag;ainst her, on the ground that as she might have been a party to that suit, the record is consequently evidence against her.* Now this is true as regards the lessor of a plaintiff in an action of ejectment, in which the defendant obtains judgmen^. t Buch judgment may at any time be given in evidence against the lessor, for the possession of the lessee is his own possession, and his otun title has been in issue. But not so in this case. By the Kandyan law there is no permanent community of goods be- tween husband and wife, and their respective estates remain distinct from each other. The husband in the former suit claimed the lands as his own, indepen- dent of his wife, and the title of his wife was in no way put in issue. The Supreme Court, therefore, considers that the present plaintiff is not bound by the judgment against her husband, and that therefore she can maintain this action, and the Sup- reme Court agrees with the Court below that plaintiff has proved a prescriptive title. Judgment for plaintiff • 1. Starkie, 260. t 2. Bacon's Abrid, 616. 178 KASDYAN LATT OJ MARKIAGE, with costs." Per Temple, December 14, 1847,— Austins Bep. p. J 09.* Kandy B. 0. No. i^^^q.— South Court. — In this case the question was whether the husband or the full sister ot deceased had a preferent right to a land, which the latter had acquired during coverture. The judgment of the Court below was as follows: — "The District Judge has been unable to find any judgment on the point which arises in this case, which is one of- great inaportance, nor can he find any other adthori- ty that can be considered in point, than the one from Mr. Sawers' t cited by the defendant's Proctor, to the effect that the husband inherits all the property acquired by the wife during coverture. Until better advised, the District Judge must consider the au- thority above cited to be the Kandayan law on the point at issue. Plaintiff (the sister) is therefore non-suited." In appeal affirmed — " the decision bearing upon the point appear to be collected in Mr. Armour's work." — Per Carr, Oct. 10, 1884.— Austin' Rep. p. 66 J Kandy B. 0. No. 19306. — Plaintifif, as widow of one Appo Vidane, claimed certain lands for herself and on behalf of her three minor children. In appeal : <' The point in issue in this case is, whether plaintiff was the wife or the conculine of the deceased Appo Vidane, and it should be open to the defendant to prove that she was of lower caste, which would raise a presumption against the alleged marriage, unless the plaintiff could show a due recognition of her as the deceased's ixAJe, and it was also competent to the defendant to show by other evidence that she was his (the deceased's) concubine j and it she should be of lower caste, she would only be entitled to acquired property, and not to her husband's parveny ; and in this- event, it would be incumbent on the plaintiff to prove that the property sought by her to be recovered is such as she is entitled to.''— Per Temple, Aor. ao, lij^^.— Austin's Rep. p. 108, Parents and children. a- Kegalla D. C. No. 5414.— Held in. appeal that where a man formed three separate marriages, * &e6 Perera't Armour, Sec. 12. p. 10-11. — also Saw. Dig, p. 34 and Sol. Man. p. 11. + See Saw. Big. p. 16. $ See Perera's Armour, Sec, S3, p. 2S,—Saw, Big. p, 8,— Mar. Judg. p. 339. § 81. FROM Austin's appeal reports. 179 leaving issue by each marriage, his property would have to be divided into three separate portions, the children of each marriage being entiiled to one-third. Per Varr, August a6, 1841. — Austin's Rep.p 25.* Eandy D. 0. No. 17,509. — In this case the Supreme Court decreed that plaintififs were entitled to one half of their father's lands, and the defendant to the other half. "The late father of the parties having left issue by two marriages, his estate shuuld ■be divided into two equal portions, and defendant being the only child by one marriage is entitled to a moiety of her father's estate, and would not forfeit such right by her diga marriage in favour of her brothers or sisters of the half blood. There appears to have existed a difference between the Saffragam and Oodooratte customs on this point, as by the Saffragam customs a daughter of the half blood would never forfeit by any dlga marriage, her right to inherit a share of her father's estate in favour of her brothers and sisters of the half blood; whereas the old Oodooratte customs made a distinciion in such cases as to the rights of the daughter where she had been married in diga by her father, and where, she married in diga subsequent to his decease. Yet this distinction never extended to the mother's estate ; and even in respect to the father's estate, it does not appear to have been adhered to or acknow- ledged by the Kandyan chiefs (who have been examin- ed in the Supreme Oourt as Assessors and as wit- nesses to the custom),— the more liberal custom hav- ing generally prevailed, viz., that the daughters of the half blood do not forfeit by any diga marriage their right to inherit their parents' estate in favour ot their brothers or sjsters of the half blood." — Collective, June 34, 1843. — Austin's Rep.p. 8y. Matala D. 0. No. 19,159. — " The Collective Court is of opinion that where a proprietor leaves issue by two marriages, his property must be divided into * See Perera's Armour, Sec. 12. p. 68. and Sec. 13. p. 74.— also Saw. Dig. p. 5. § I.— Mar. Judg. p. 331 § 59.— Sol. Man. p. 19 § 2.— and Lor. Sep. Vol. II. p. 27. _ [It is now a settled point in Kandyan Law, that the divi- sion iaper stirpes, and not per capita, though Armour (Perera'a Edition) on page 75, Marshall on pages 332—334, and an old judgment of the Supreme Court of 1853, reported in Morg. Dig. p. 2 § 8 are in favour of the latter. This, however, applies only to paternal and not maternal inheritance.— Ed,] 180 XAKtltAN LAW or UARntAOB. two equal portions, and the issue of each marriage is entitled to inherit a moiety. And furthermore that the plaintiff being the rnlly child of the first marriage does not forfeit her right to a moiety of her parent's estate by her diga marriage, in favour of her brothers of the half-blood, who are entitled only to the other moiety." — OoWecii-e,/tt«e 24, 1843. — Austin's Rep. p. 105. Kaniy B. G- No. 20,898. — In this case plaintiff claimf^d a half of the lands of bis deceased father Kalooa. It was admitted that plaintiff was Kalooa's issue by his first wife, and also that defendant was his second wife by whom he left four children, who were all minors. The Court below concurred in the opinion expressed by the Assessors, that the division of the estate should be per capita, which is in accordance with the old decisions mentioned by Sir Charles Marshall * In appeal reversed.— "The Judges consider that the decision of the Collective Court in the Mateila case f ought to be followed, sind that the point was fully considered and decided in it, and also in another cise from the late District Court of Kandy North X heard at the same General Sessions. The Digest of Sir Charles Marshall has been referred to as favouring' rather the rule of division per capita than per stirpes. That portion of the Digest, however, was not published until after the above collective decision, and the Judges would entirely incline to such rule of division as being most consonant to natural justice, if they could view it as an open ques- tion, and would consider the result of the vaiious conflicting decisions fully justified such opinion, which however they cannot now do. The rule that a diga daughter inherits exclusively when she is the only issue, and a moiety if she is sole child of the first marriage, although there may be several childrea by a second marriage, may be referred to as strongly in favour of the rule of divisio.i per. tirpes. There seems, however, to have been a difference on the point between the Oodooratte and Saffragam customs, and much difference in practice has occurred, which renders some Legislative provision desirable.'' Col- lective, June II, 18 ji. — Austin's Rep. p. 122. * See Mar. Judg. p. 332 § 68. T See No. 19159 above, J See No. 17509 above. FROM Austin's appeal repokis. 181 Kandy D. C. No. 23620.— Sarana was tke onginal proprietor of a certain land- He had a sister called Possamba, and a daughter (who was married to plaintiff) Rangkiri: At Sarana's death, the daughter succeeded to the land ; and on the death of the latter, her daughter Belinda (born to plaintiff) became entitled to the same' She, however, also died shortly after, and her father ia this suit claims the land as sole heir-at. law. The defendants are the children of Possamba (RangMri's paternal aunt). The court below held that the father was the heir-at.law of his child. In appeal affirmed. Per Oliphant. March 18, i8j4.— Atistms Sep. p. 155. Eandy D. C. No; 24094.— The following is the judgment of the Court below :— " It is admitted ist. That the lands mentioned in the Libel had belonged to Kiria Duraya. mdly. That Kiria JDuiaya left three sons, of whom Ookooa, the plaintiff's late hus' band, was one. 3rdly. That Ookooa left a son Kira who died. Plaintiff therefore . as heiress of her son Kira is entitled to one'tbird of the lands, and to participate in the produce thereof, though the ist defendant as the widow of Kiria Duraya is entitled to have the control and management of the lands> The 1st defendant in her examination this day, has admitted that she resisted plaintiff's claim to any participation,— the Court ia therefore of opinion that she should pay the costs of this suit." In appeal af&rmed. Per Carr. September 16, iSjit-^ Austin's Rep. p. 163. Kandy D. C No. 706 —In appeal decreed " that Plaintiff is entitled to, and that she he put in possession of one-half of the field of which her father died possessed. There seems now doubt from the evi- dence, that Plaintiff was really married in binna, for besides her own witnesses, one of the defendant's witnesses deposes to that effect, and though she appears to have mistaken the ground of her right and to have rested it on a gift from her mother (who she said had the disposal of her father's property after his death,) there is no reason why that mistake should prevent her real claim from being enforced." Defendant was entitled to the other half by right of Plaintiff's brother. Per Marshall. May ij, 1834.— Austin's Rep. p. 10. * See JUvrg, J>ig,p, 16 § 79, 182 KANDYAN LA.W OF MiRKIAflE. Kandy D. C No. 18457. — Plaintiffs (who were two sisters) claitufd a cei tain land by right of their deceased mother. Defendant was their full sister. The Court below was of opinion that plaintiffs failed to prove that it belonged to their mother, but on the contrary held that it was the property of their father, "and although they did not claim under him, yet to prevent further litigation felt itself authorized to pass a judgment in respect to his heirs.at-law who are now before the Court. It is admitted that. ist. . plaintiff is married in diga, and it has been proved that and., plaintiff is married in Mnna. It appears also that the defendant, though at first married in diga, returned to her father's house and was subsequently married in binna. Adjudged therefore that the land in dispute be equally divided between the 2nd. plaintiff and defendant, and each party do bear their own costs." In appeal affirmed.— Per Oliphant. December 7, 1849. Austin's Rep. p. 96. South Court. No. 14099. — Held in appeal that diga married daughters can inherit their father's property when there is no male issue. Per OUphanf, Felruary 2, 1844. la this case the daughters were all minors when their father died, and were subae' quently given out by their paternal uncle, to whose care they had been entrusted. " The Supreme Court observes that the judg- ment does not comply with the terms of the 34th Rule, section i, Civil Jurisdiction, inasmuch as it does not state the grounds of the decision. This omission however is no reason for reversing the judgment."— Collective. December 16, 1844. — Austin's Rep. p. 59. Kandy D. 0. No. 2269a. — The following isi the judgment of the Court below s— " In this case it is admitted that the former proprietor of the lands (Aayda), left three d-aughters, of whom the eldest died leaving a son, who is in possession of one. third of the lands ; and that the defendant who is another of the daughters, is in possession of the remain, ing two-thirds : whereas the plaintiffs who are the issue of the third daughter, are not in possession of any portion of the EstaiteT It >^ clear- that the plaintiffs are entitled to pne-t^ird of ^ayda's Estate, unless the defendant ,caa pkave to the contrary. • The court is therefore of opinion t^jaf^ the burdeti of proof lies upon the defendant, but her Counsel calling no FROM AUSTIN'S APPEAL UEPORTS. 183 witnessess, judgment is entered for plaintiffs." In appeal set aside. " The Supreme Court considers that the onus of proof is with the plaintiffs, they having to prove that they are the children of Okkoo (one of the daughters,) which is denied." Per TempU. Becemher 13. 1850. On the next trial day, plaintiffs proved satis. factorily that their mother was Okkoo. The defend- ant then led evidence to contradict the fact, as well as to prove that Okkoo was married in diga, allegingthat herself and her other sister were married in binna. "The evidence as to the marriage of Okkoo, the plaintiffs' mother, is vague, but in the absence of positive proof of a diga marriage, the Court will presume in favour of the linna one. But there is evidence that Okkoo always resided in one of her father's gardens. As to the defendant haviag possessed two-ihirds of the £state since the death of plaintiffs' mother, that is accounted for by the circumstance of the plaintiffs being very young at the time of their mother's death, and the defendant as their aunt and only female relative having naturally taken charge of them. Judgment for plaintiffs." In appeal affirmed. Per Cart. September 19, 18 ji.^ Austin's Rip. p. 141. KaruLy, D. C. No. 5157. — Where a woman rer turns in a destitute coadition from her diga village, she is entitled to support froni her parent's estate, but at her death all claim upon the paternal property is at an end, and her son is not entitled to any share of it. Per Marshall. November i, 1833 — Austin's Bep.p. ai.* Ntyrth Court. — No. 12,247. Defendant rests her claim to the garden in dispute, solely upon her pres- *> criptive right. It appears she was the paternal aunt of the plaintiffs, and is admitted to have been married in diga subsequent to which she returned in a des- titute condition, and took up her abode in the garden ^ in question. The Court below held that by the . Kandyan law she was undoubtedly entitled to Udging. support, and clothing from her parent's ■ estate, but' nothing more; and merely because she was allowed to remain on the property for a letigth : of lime, she cannot now set up a title to the same. • See Morcf. Dig. p. 3 § 13, 184 KANDYAN LAW OF MAEEIAGB. Judgment for plaintiffs. In appeal altered to " de^ fendant to hold the land for life in lieu of main' tenance. and each party to pay their own costs." Per Oliphant. September i, 1 840. — Austin's Bep, p. 49. South Court. — No. 14991. A man died leaving a widow, a son, and two unmarried daughters. Sub- sequently the daughters were given out in diga, and their mother and brother continued in the exclusive possession of the lands belonging to the deceased's estate. One of the daughters now brings this action against the mother and brother for her share, and the other daughter comes in as Intervenient for a liice share. The Court was of opinion that although a daughter forfeits her right to inherit her father's estate by being given out in diga before his death, yat, being unmarried at the time of the father's death, and having acquired a tight, she dbes not forfeit that right by a subsequent marriage. Judgment accord- ingly that the three children be equally entitled to their father's lands, reserving nevertheless to the widow a life-interest therein. In appeal reversed^ "and and. Defendant is decreed to be the sole heir of his father's estate, subject to his mother's life-interest therein, as the daughters have forfeited their right to inherit their father's estate by having been married out in diga by their mother". Per Garr. Qdoler I J, li^i^.— Austin s Sep. p. 64. Kegalla J). 0. No. 4054. — In this case plaiotiff was the only daughter by a man's Jirst wife, and was given out in diga by her father. Defendant was the son by the second wife. Plaintiff now claims one-half of the lands of their deceased common father. Defendant pleads ist. that she has for-feited her right by having been given out in diga. and and. that whatever their father intended to give her, had already been given as a dowry upon her marriage. The Court below held, that inasmuch of the Kandyan law, according to Sawers, was that " a daughter being the only child of a man's first, second, or third marriage will have equal rights with her brothers of the half- blood in their father's estate, even if given out in diga,"* therefore that plaintiff was entitled to the share now claimed, and judgment was accordingly entered. la appeal,—" the question in the present case is whether ! See Saw, Dig, p, 3 § 4,-Jlfar, Judg. p. 331 $ 69. t&OU AUalltl's APPEAL HEPORtS. 185 a daughter oE the half-blood married in Diga is entitled to succeed jointly with her half-brother to the estate of their common father, and the Assessors and other chiefs examined as to the custom are of opinion that she does not succeed if she was endowed by her father on the occasion of her Bigd marriage, but that if she was not so endowed, she does. Pro- ceedings therefore referred back lor evidence of the fact set forth in the Petition of Appeal, that on the Occasion of the respondent's marriage she received the requisite dowry," Per Jeremie. Marc/120, 1838. Evidence was then heard, and no dowry being proved, the judgment of the Court below was affirmed. " The Supreme Court has already decided in a similar case in appeal,* after referring to the old decisions on the point and with concurrence of the majority of the several Chiefs in attendance, (three being examined as Assessors, and six as witnesses to the custom,) that where a proprietor dies leaving a daughter by his first wife and a son by his second wife, the daughter is entitled to a half of her parent's estate, and the brother to the other half j and such daughter will not lose this portion by any Diga marriage, in favour of her half-brother by the second wife j— but if there had been also a son, or another daughter married in Binnahy the ist wife, such son or daughter of the whole blood would inherit the one half in exclu- sion of the sister married in Biga, excepting to her claim for maintenance in case she returned destitute." — Per Cafr. August 24, \%^%.— Austin s Bep. p. 19. Kandy D. C. No. 16679.— Plaintiff's claim rests in right of his mother who was originally married in Diga, but who having afterwards returned'in a desti- tute condition to her parent's house, was allowed the possession of a few cocoanut trees for her support, which trees the plaintiff now claims. The court was of opinion that as the mother of plaintiff was married in Biga, she could have a life-interest only that the cocoanut trees she got for her support, and therefore dismissed plainti£E's case. In appeal ordered that the case be referred back to take evidence as to the manner in which the trees were given : whether as an absolute gift, or only as maintenance. — Per OUphant. August 31, i8^o.— Austin's Bep. p. 82. * See Case No. 3403. D. G. Matala. 186 KANDYiLN LAV OF MA.KRIAGE. Kandy B. Q. No. 8i6 — Held in appeal (after hearing the evidence of three chiefs on the point,) that where a woman possessing property dies leaving a husband and two daughters, the daughters inherit t^heir mother's lands : and should one of the daughters then die without issue, the sister is entitled to her Share in preference to the father. — Fer Rough. Auguft 18, 1834. — Austin's Rep. p. 11. Kandy D- 0. No. 23067. — In this case the Plain- tiffs as the sisters of Hendrick Perera deceased, seek to recover certain lands which belonged to him by pur- chase, alleging themselves to be his only heirs. The defendant denies their right, and alleging that the said Perera was her husband and that he left a son by her, claims the properties in question for herself as his widow, and her said son as sole heir-at-law to himi respectively. The Court below found that the defend- ant had not been married to Pererm, but that nevcf tbelesp, his child though illegitimate, was entitled to the lands in question as the acquired property of the father, and gave judgment accordingly. ' In appeal set aside, the Supreme Court being of opinion that the Court below was wrong in departing from the pleadings, the Answer having set up a marriage which had not been proved; and thereupon the caSe was remanded to allow defendant an opportunity to amend her Answer if so advised. December 31, 1851 At the second trial upon such amended pleadings, the Court below delivered the following judginent. " First as regards paternity, the Court is satisfied that the infant id the child of the deceased ; and Secondly] that although defendant was not married' to him, yet by Kandy an law the issue of a connection such a5 sub- sisted between Perera and defendant, would be entitled to inherit all his acquired property; and the authorities on the point are borne out by a judginent given in a similar case in the late Judicial Commission- er's Court of Kandy, when Mr. Sawers and the Chiefs held that the children of such a connection, though the mother was of inferior caste to the father, were en- titled to inherit his purchased property.* Here how- ever there is sufficient proof that defendant was of equal caste with Pereia. Though her father was a Malabar * Date of decision, December 13, 1824, TROM Austin's appeal beporis. 187 man yet his position in the King's household made U necessary that b'la rank should be equal to that of Vellalla ; Thirdly, the Court is of qpinip^ that th^f is a case in which Kandyan law must operate. The 8th clause of the Ordinance No> j of iSjz fo^ restricting the operatjion of Kandyan law, only, refers to persons commonly koown as Eucqgeqns aq^ ^ their descendants, and persons commonly ^npwti as £ urghers, and cannot be made to apply to either def^d* ant or Perera, — the former a I^anc^yan born womaoj the latter a pure Cingalese. Jqdgment th^refpr^ for defendant on behalf of her minor cliild," In appeal affirmed. Collective. Septemicr 22, i9s6,— Austin's Rep. p. 14;. 3. Kandy D. 0. No. 26838.— Plaintiff (a Biga Broth«M and SUtera. married woman) claimed certain lands in right of her deceased brother Appu, who inherited them from his father /TeeraZ/e. i8t. defendant (the mother of plains tiff and Appoo) left Keeralle after the birth of these two children, and contracted a second marriiage ; and at the time of this action she was Uviogio the second husband's house. The 2nd. defendant who was alsp her son, claimed the lands jointly with plaintiff, allegr iog that he was also the issue of Keeralle. This the plaintiff denied, but admitted that ist. defendant was his mother, he being the issue of her second husband. The Court below was of opinion that the burden of proof was on the 2nd defendant, " for unless be proves that he is a son of Keeralle, plaintiff wou^ be entitled to judgment: for either as the surviving daughter of Keeralle, or the surviving ful\ sister of Appoo (who had become the proprietor in consequeiioe of plaintiff's Diga. marriage), hei; title is good as against either the mother or hal^bi^other." X>efettd9°t's coun* sel declining to call evidence, judgment was entered for plaintiff. In appeal aflSrmed. Collective. January ■ii, 1857. — Austin's Rep. p. ipo. Kandy B. 0. No. 272^4.— PancAy Etlenawas the original proprietress of the land in dispute. She left children of whom plaintiff was a Diga marribd daughter, and defendant was a son. The latter con- tended that his sister had forfeited her right by her Diga marriagq, and further pleaded prescribtiqn* "fh? Court below was of q^itiion that the i>2^a marrietl daughter did not forfeit her righ^ to her material 188 KANWrAH LAW 01 MAltRUGi. inheritance, * and consequently since she was an heir had a prima facie title to a share, the defendant was called upon to lead evidence to prove his alleged |)rescriptive possesion, the burden of proof being on him* Defendant appealed and in his petition stated that 'According to the Kandyan law as laid down ia Armour,' a JDiga married daughter would forfeit her right to her mother's property in favour of her brother, if the mother had derived such property from her (the mCthei:'s) father, f The Supreme Court set aside the judgment of the District Court and remanded the 6'ase for anew trial, — " being of opinion that there is idd^dinissibn or evidence on the face of the proceed- ings, to show that the land in question was not; inherited by Poonchy Ettena from her father, and that being so, and it bein^ admitted that plaintiff was 'married, out in Diga, she has no such prima fade title to the property as justified the District Court in calL |ing on the defendant to lead evidence." Collective. ^Hiovemler a8, 1856.— ulwi/ia'* Rep. p. 194. |i ■ Kandy D. 0. No. 27911. — The following is the I Judgment of the Oourt below. " In this case the I point for consideration is, whether plaintiff by her I admitted Diga marriage, has not forfeited her right . to the lands in question, — those lands being admitted to have been the property of her mother's father. \ On this point it is clearly laid down by Armour % that ) if the mother left a daughter married out in Diga l^as plaintiff admits to be), and a son (defendant), the latter would inherit the lands derived from his [mother's paternal ancestors to the exclusion of his ^)iga married sister. This authority the Court ! considers conclusive, and plaintiff by her Diga marriage must be considered to have forfeited all ^ight to the lands in question, — it not having been > shown that the parents of the parties had each an independent estate. Plaintiff's claim is dismissed." In "appeal affirmed. Collective. December 5, i8j6.— Justin's Rep. p. 199. * See Perera's Armour p. 82.— also Mar. Judg. p. 332 5 67, and p. 336. § 71— and No. 13943 D. 0. BadiOla, rieported in the Ceylon " Legal Miscellmy" Part I, p. 51, + See Perera's Armour p. 80 § 4. t See Perera's Armour p. 8v FROM AUSTIN'S APPEAL UEfORTS, 189 Kandy D. G- No. 7901. — In this case judgment was entered for plaintiff, and in appeal affirined. " If the defendant (plaintiff's sister) has become divorced, or is a widow destitute; of the means of support, she would have a right to return to the bouse of her parents, and there to have lodging, sup- port, and clothing from her parent's estate ; but the evidence in this case will support no such claim by defendant."* Per Qarr. September 1 1^, 1836 — Austin's Sep p. 3 4.- Kandy D. 0. No. 28877. f— In this case Plaintiff was non-suited with costs, the Court being of opinion that a brother cannot maintain an action against another for a division of their father's estate during the life'titue of their mother, as by Kandjan law at the death of the husband, his estate vests in the widow. In appeal set aside and case remanded for a new trial. " "The general question raised at the trial does not arise on the pleadings, according to which the heirs would seem to have entered into and possessed their shares respectively with the concur*" rence of the widow, — the only question being whether the lands were held in divided or undivided shares ? The Court must determine the issues raised by the parties." Collective. January 10,1860.'; — Austin's Bep- p. 209. 4. Kandy B. No. 33,97^.— Plaintiff claimed Nephews andNeieea, a certain land of his deceased father Manikralle. Defendant admitted that Manikralle was the pro.* prietor, but denied that Plaintiff was his son. He however admitted that Plaintiff was the son oiKeeralle, the youngest brother of Manikralle, and stated further that Manikralle was an associated husband witli him- self, and had left issue one Punchyralla who upon petition was allowed to intervene. On the trial-day the Court below held that the onus of proof was on the Intervenient, because he having admitted that plaintiff was the nephew of Manikralle, the plaintiff would be entitled as his heir-at-law unless intervenient can prove that he (the Intervenient) was Manikralle' s son. Intervenient's Counsel however declined to, cajl, wit- nesses, whereupon judgment was entered for plain- tiff. In appeal reversed and case remanded for re- * See Morg. Dig. p. 96. § 393! t This No, is rather doubtful. Try No, 28887.— Ed, 190 KANDYAH LAW OF MAEEIAGB. hearing and for judgment de novo, '' The onus is clear- ly upon plaintiff to begin, as in his Libel he claims the lands in dispute as the son of Manickralte, and not aa the son of hia younger brother Keeralle, on which the parties have never taken issue. If the plaintiff has any claim as being heir as such nephew of Ma- nichalle, he must institute a fresh action." Fet Carr> September i?, 1857. — Austin's Bep. p. 160. Kandy b. 0. No. 27,132.— 'Plaintiff was the ad- mitted nephew of Wattooa deceased who was the proprietor of the lands in dispute, but having claimed in his Libel as son of Wattooa which was denied by defendant (who was Wattooa's deega married sister,) and having called no wittiessea in support of the state- ment in bis Libel, he was non-suited. " If plaintiff has an^ claim as nephew, he must institute a fresh action."* In appeal set aside on payment of costs of day and of appeal, " and plaintiff be at liberty to amend bis Libel if so advised on payment of costs consequent upon amendment". — Collective, October 15, 1856. — Austin's Bep p. 19a. Wldowi and Widowers. S- iSoM/A Ooarf No. 13,679.— In this case plains tiff sued his deceased brother's wife for a certain land which he alleged was hereditary property, be- longing to himself and his late brother. The de- fendant admitted that it was hereditary property, but denied that plaintiff ever possessed any portion of it. The Court below without entering into evidence was of opinion, that " inasmuch ati plaintiff and defendant's late husband were brothers, and the land in question having descended from their father, plaintiff sboald be entitled to one half and defendant to the other half, she having a right to her life interest in her husband's property." In appeal proceedings referred back for evidence as to the exclusive possession of defendant's late husband, " If satisfactory evidence can be adduced on this point, plaintiff can in no way have a right to a moiety, — but in failure of such proof, plaintiff and defendants will each be entitled to a half." Per Can, September z, 1841. The Cou't below then entered into evidence and was of opinion that defendant's late husband possess* ed the field exclusively for more than ten years, al- though^ plaintiff had originally a right to a moiety. * See No, 23,975, page. 189~anie^ " FROM Austin's afpeal reports. 191 Plaiatiff's claim was therefore dismissed and in appeal iffirmed. Per OUphanl, February 6th, 1844. — Austin's Bep, p. 53. Kandy D. C. No. 17,697. — I" '^^'s «3se which was instituted in 1842, the ist defendant who was widow of one Ookooa, sold certain lands to plaintiff, she having previously received ihjrei from the late husband upon a Notarial deed. The second de. fendant, who was the brother of Ookooa, alleged that these lands devolved upon his brother and himself by right of their fa' her who died in i82ii and that there- fore Ookooa became entitled to a half only, and he (and defendant) to the other half. That nevertheless Ookooa cultivated the whole of the lanfls, and gave the produce to their mother till her death which took place about eight or nine years ago, and that be (2nd defendan') did not cultivate nor take any produce from his own half since 1821. The Court below was of opinion that Ookooa had gained a prescriptive title by and defendant's own statement, and therefore gave judgment for plaintiff. In appeal set aside, and case remanded back for evidence. " According to the state nient of the second defendant, the lands in dispute belonged to his father, and liis widow (2nd defendant's nnother) would therefore be entitled to a life-interest therein. The delivering of the produce to her by Ookooa was not adverse to the and defendant's claim to inherit a moiety, because under the Proviso at the and clause of the Ordinance No, 8 of 1834, prescrip. tioa of ten years begins to lun only from the time when the party claiming acquired a right of posses- sion, which the and defendant did upon his mother's death. Neither does it appear that the and defendant admits the validity of the ist defendant's Deed of Gift from her late husband, and unless it be proved, he would be entitled to his brother's moiety as his Heir, subject to the ist defendant's life.- interest as widow." Per Carr, September 5, 1845. — Austin's Rep. p. 88. Kandy D. C. No. 17,748.— Plaintiff, as next of kin to deceased, seeks to recover from defendant who is the admitted childless widow, possession of certain lands which belonged to the said deceased, alleging as a ground for doing so, that the widow was alieniting her husband's property. The Court below was of opinion that this action was both preoiature and 192 KANDYA.N LAW Or MAUIUAGE. wrongly brought. " Since the widow is entitled to the possession of the property, she cannot be subject to an action of ejectment by any person claiming is heir-at.law. If it be true that the widow is alienating the property, some course may be resorted to by those having an interest, to restrain her. Plaintiff non. suited." In appeal affirmed. Ver Stark, September 31, 1846. — Austin's Rep. p. 88. Kandy D. 0. 26,329, — Plaintiff says that she as the issue of tha Jirst, and 2nd defendant as the issue of the second bed of Kankanama deceased, are each entitled to an undivided moiety of their father's lands ; but defendants being in the possession of the whole, this action was brought to recover her share. Defendants admitall this, butstate that neither Plaintiff nor 2nd Defendant is entitled to the possession of the lands during the life of the ist. Defendant who is the widow of the deceased, and mother of the 2ad Defendant ; and who as such widow is entitled to the possessiou of the whole during life, the same being of small extent and barely sufficient for her support, the Plaintiff moreover being otherwise well provided for. Plaintiff demurred to this answer on the ground that 1st. defendant had no right to a life-interest in the whole, and that the alleged smallness of the estate was no reason why Plaintiff's claim should be dismissed. On the day of argument, after hearing Counsel on both side?, the Court was of opinion that a child by the first bed was entitled to the possession of the share immediately upon the death of his father.* '' The authority in Armour alluded to by defendant's Counsel, contemplated that of a son or grandson of the same widow, who shall in such case be entitled to the exclusive possession during her life tj and according to the other authority quoted t, if the estate be of small extent, then although the widow had not a child to the deceased, she will be entitled to retain possession to the temporary exclu- sion of the deceased's heir-at-law (his brother for instance), whose title to succession shall remain in abeyance until the widow's demise, or until she shall have contracted another marriage. It does not appear however that this section contemplates the right of a * See Mar. Judg. p. 326 § SO, + Perera's Armour p. 24 § 1, + Perera's Armour p. 20 § 2, PBOM ^trsIIN'S APPEAL BEP0ET3. 193 child of t,h& deceased^ but. only menjbers of his family, of a more remo/e degree. , Demurrer u(,held, and judgment for Plaintiff for an undivided mpiety, as prayed for." In appeal affirmed. Colleciivej June 29, iSS^.-^AusHn'sRep p. 18+.* c) ,/.,, > . •- - - Kandy D, C. No. 28,231 — The following is the judgment of the Qourt below : '' PlaintiS ^^eks to recover Irom defendant certain moveable an/1 immovc able property belonging to the estate of her, deceased father MoUigodde J^tssdwfii. undertaking to maintain defendant who is the childless widow of. h^r deceased brother.. Defendant demurs to thjs jLiibel on two grounds, ist, that accordipg to plaintiff's, admission in the Libel defendant is entitled' to a life-interest in one half of the estate of the Dissawey and sndiyi that p'aintiff has not set out specifically the articles of jewellery, &c. which shQ claims. It is admitted that plaintiff and defendant's late husband Lakum were the children oi Dissawe by- different beds, and heirs to his estatei— the only qjuestion therefore for, the Court's consideration is, whether under s.ucb gircurastances, defendant as the widow pi- Laium is entitled t^ a life- interest in the , undivided balf portiop of the estate of the Bissaw^ which devolved, to La,kum, at the deimis'e .qf bis father j and this question has been ra Bed by 'way of demurrer, — for if by Kandyajn law qX custom defendant be so entitled, this action. ;n its preserit form cannot be raaintaibed. Armour in his " Nptes" on Kandyan Law' would seem to. imply ,that a widow under such circumstances woiild only be entitled, to a fnaihlendnce: f^prix h^r late husband's estate, the Vesidue of the property going to the heir-at-law t but Sawer8,(ah. authority of well deserved and.ackhowledged repute) lays down as the Kandyan Law 'the distinct reveis'e, , his words (strictly appli- cable to tbe ■ present case) being if a man die leaving a wife without children^ and irot/i^rs and sisters, his landed property lielqngsjq flis widotf/ during lije, X ap'l this doeirine has uiii'ormly been , up-held^ in this Court.' .The Court iherefpre consrders that defendant, as the widoi^ of the.la.i& Lakum, is, according to f On theqneitiin of Widbw's rig^ht to Life-intere»t now, fee toot-nocetap(^e,\\5&, nnie^^EiD. ■• > 1 ' t See Perera's Srmemr r>: 22 ( 26^ t See Saii. ITig.p: 1? ^ 194 SlKDYAN I.AW OF UAKSIAffB. Kandyaa law, entitled to a Irfe^interest in the landed estate by which he died possessed. Demurrer there, fore held good, and plaitttiff non.siiited with costs." PlaintifE appealed, bat upon motion of her Counsel in the Supreme Court, the appeal was withdrawn on payment of costs. Ooitectivet October %9, i8j6.— Austin's Bep. p. 202. KaMihi D. 0. No. 9,56^.— In thig case the Court below allowed the widow in preference to the nephew to take out Letters of Administration of the Estate of the deceased. In the course of the proceedings, mention was made of an adopted son of the deceased (a minor), but nothing transpired in the judgment with regard to him. The nephew appealed, and in appeal "affirmed as to the grant of administration to the widow, except that the said grant shall be ex- pressly limited to whilst she remains unmarried; and a power shall be reserved therein for the son alleged to have been adopted by the deceased, being here- after joined in such administration with the widow upon his attaining his majority, and satisfactorily proving to the Court that he was really the adopted son of the deceased. Upon investigation, this Court does not consider there are any proofs of fraud in the omission to file the inventory of moveables, or in the production of the Will by the widow, to warrant its refusing to her administration, it appearing that the above omission in the inventory was owing to her ignorance, and her having a customary title to the moveables ; and that the Court disallowed the Will, as the deceased was at that time a convict for treasoni and therefore uDable to make any Will. In regard to the genial right of the widow to adminis. tration, this Court has upon previous instances granted joint administrdtioo to the widow and adopt- ed son ; and it entertains no difficulty in saying that the widow is entitled to preference therein, both as regards general principles and established practice, as well as under the Kandyan law which gires the widow control over the Estate whilst she remains unmarried. Consistently with this customary law however, this Court considers that all such grants to widows should be expressly limited to during the time that the widow remains unmarried."— Per /erefliif, Stptemier 3, i838,-—ili« for the appellant} would seem to depend moro upon the construction given to the deed referred to in the Judgment than to a deliberate consideration of the abstract law on the subject. It has been urged in support of the appeal that the JBinna husband has at least an interest in the property acquired during coverture. The plea was only taken, however, in the petition of appeal, the only question submitted to the District Conrt at the hearing having been that relat* iog to the interest of a Binna husband in bis wife's 196 EANDYiiN L&.W OF UiRSIA.aE, estate. This plea Involvea an issue of fact, and the Supreme Court, cannot allow the appellant to take it for the first time in appeal. In his original application, the appellant relied upon a deed hj which his yirife was said to have conveyed all her property to him. This deed, if established, would have given the appellant ' an' all-sufficient interest . in his wife's^ estate ;4and an undoubted right < to represent the same. Its genuineness was, however, denied by the respondent, and ' yet at the trial the appellant called no evidence to prove that deed. Under these circumstances, and considering the necessity of a apeedy decision in these administration suits, and that an afBrmance of this order will not deprive the appella'nt of an oppor. tunity to establisbj if able to do so, bis interest in his wife's estate, either under the deed, or in respect of the property acquired after covertljrt>, the Supreme Court con'sidefs the order of, the District Court should be, and; the same is hereby affirmed- (a6 January., i£6o.)*. — Beu. and Siib.Rep-p. ^\i' \ Parents and ohildreo, a- Kandy D. C. No.^ 59173. — Plaintiff claimed one-fourtii of her ifatber's: lands from defendants, : her three sisters. Latter admitting Plaintifi's relationship, stated that on the death of : their associated fathers, second and. third- defemdanCs succeeded to tbeposses- sion of: the lands, their sisteis.Plaintiff and first defend- ant halving 'beeii married out \a Diga and having thereby forfeited their rights, , It' transpiried iti' evidence: that Plaintiff ,when young was marriedput in Digd to.Hatereliadde Qanda to whom she had a child j that she was recalled by ,ber parents: and returned home ibringing her child , with her; "that .she. was married by her parents to Toradeqia B'anda (whether in Binna: or .P^ga was doubtful) and lived partly in his: house and partly in her owHiiheri qhildi; by Hater:eliadd^,.h()weve!r, being left in hei*>own houselintherqharge'ofiher mother and diedi >there ;• that ;ofe three ichildren she]:,bpre! ,to, Toradenia one atllea^t was born in hejc owp, house and two of them died there;; that after the, dje^^h of -her father, :but, during her | motheit's life, Plaintiff and Toradepia; sepafatied. and she was received .as?ain by hpc mother and, brothersiby., whom she was givep out .Jn Diga to,Dadohagii)(W.Tikiry Banda, while she left her — : ■' '—< — TTT— i — r-' — ^ —. 1 : • But see Sam':'nAlhan, p. 26. ' FROM BEVEN & SIEBEL's Ari'EAL REPOETS. 19.7 yoiinge-st child by Toradenia in her house where he remained until shortly before the institution of this suit- Eaton, for Defendants, contended that Plaintiff by her Diga marriage bad forfeited her rights. A Kan- djaii daughter has no choice as to whether her marriage shall be Binna or Diga. (Sawers p. 4.) The general rule as to Diga maniageis that it operates as a forfeiture of ail right to the paternal estate. But if she return from her Diga village and thereafter get a Binna husband, lier rights revive (Sawers. p. a.) And if a Binna married daughter quit her father's house to live in Diga with her husband, she forfeits all right to her paternal estate, unless one of her chil- dren be left in her parent's house. — {Sawers p. 3. — Solomo7i i Manual p. 17.) Fan Langenberg, for Plaintiff, maintained, i. That Plaintiff did not forfeit her right by her raarri' age to Toradenia. s. The evidence adduced by Defend- ant failed to establish a Diga marriage. 3. That the subsequent marriage with Dadohagama even if Diga, would not operate as a forfeiture, the more so as it was proved that the Plaintiff left her son residing in the house of the parents. Perera's Armour p. jp. 4> The evidence adduced by plaintiff established her possession of the lands claimed until ouster. Lawrie, D. J. dismissed Plaintiff's case with costs, holding that plaintifE did not forfeit her right by her marriage to Toradenia, but that her marriage with Dadohagama was a regular Diga marriage, and she iti consequence lost her right to her paternal inheritance, notwithstanding she left her child behind in the family house. The judgment proceeds: " She urges that she did not lose rights in her father's property, because she continued to possess a share of it,^ partly from personally taking a portion of the produce and still more from her youngest son ty Toradenia having continued to re- side in the Mulgedctra, and having been maintained from the produce of the fields. I do not think that her personal possession of part of the fields or her part icipation in the produce has been so proved that I can make it _a ground of judgment. As to the effect of leaving her sod in the Mulgedara, the question, so far as I am able to asccrtain> has not been decided. It its l»a KASDYAN LAT OF MARRIAGE. laid down in Armour * that a Binna married woman ■will not lose her rights, by going off to live in her husband's house, provided she leave one of her children behind, but I do not find it stated that a woman who is given out in Biga saves her rights by leaving a child of a former marriage in her Mulgedara. In a case of difficulty, I hesitate on the one hand to decide that a child of the family has forfeited her right of inheritance, unless the law clearly establishes a forfeiture; and on the other hand, I hesitate to introduce a new exception to the ancient and recog- nized rule that a woman in Diga has no right in her father's land. Aftergiving the subject my best considera- tion and after consultiag the authorities to which I- was referred, I am of opinion that the plaintiff by her Biga marriage to Dadohagama lost her right to the lands which she claimed, notwithstanding the continued residence of her blind son in the Mulgedara, I must therefore dismiss her action with costs-." In appeal, sei aside and judgment entered in Plaintiff's favour as claimed in her libel with cost of suit. The plaintiff was first married in Djga to Hatere- liadde, but she was recalled to the Mulgedara by her parents and lived there with her child. She afterwards married Toradenia, and although the evidence is conflicting in this respect, the S, C. concurs with the D. C. that was a marriage in Binna. Her right therefore to the paternal inheritence revived. She was subsequently after the demise of both her associated fathers, married out in Diga by her brother toDadoha' gama, but she left her youngest child of the Binna marriage at the parent's house. " If a daughter married in Binna," says the late Mr. Solamons in his excellent Manual on Kandyan law p. 17, "left her parents with her children in order to contract a second marriage in Diga, she forfeited for herself and children all right to inherit any portion of her parent's estate, unless she left one or more of the children of the Binna marriage at her parent's house." (ag Felruary, 1875.) — ■^^^- ""'^ ^'^^- R^P- p 4. WJdcws and Widowers. 3. Kandy D. C No. 31^12.— Plaintiffs, as the nephew and heirs-at»law of Kanghamy>claimed certain lai.ds. The firSt defendant was the childless widow of Rangharay, and the second, the person to whom * Perera's Ed, ^. 69, FROM EEVEN & flEBEL's APFEAL REPOETS. J99 she had transferred the lands for services to be rendered. The pleadings put in issue the fact as to whether the lands had been acquired by Eanghamy or whe'ber tbey were his paternal inheritance, but at the trial it seems to have been assumed that they were inherite 1 by him. It was contended for the plaintiff that by the first defendant alienating the property, she had forfeited her life interest in it, for the defendant that the deed by the first to the second defendant was waste paper, that she had no right to execute i^, and that therefore it was no alienation, and that further she had a right during her life to make any arrangement that would secure to her maintenance from her husband's lands. The follow.. ing is the judgment of the District Judge (Smedley) : — There can be no doubt that the deed taken per se is a deed in which the first defendant declares that she does alienate the property. Whether she has the power to do so, and whether the deed is consequently legal or not is not now the question : but the Kandyan law is clear upon the point, that the act on the part of a widow of alienating, squandering or committing waste upon her husband's estale ipso facto she forfeits her life-interest. The deed sets forth that the lands are first defendant's by inheritance, this defendant's .Advocate admits cannot be the case. In the answer she admits that she acquired the property, by which it is clear that she not only intended to alienate the property, but to insist on her right to do so. It is not now attempted to be said that she acquired the pro^ perty. The case therefore stands thus ; the property did belong to first defendant's husband; the first de- fendant had a life interest, the widow has attempted to alienate the property, and has thereby by Kandyan law forfeited her right to a life interest. It appears that second defendant has a judgment in his favour against first defendant's husband for the southern four kurunies of the garden, and with this exception, it is decreed that plaintiffs be put and quieted in pos- session of the land claimed in tbe libel, the first de- fendant paying costs of suit. Upon appeal by the defendants, the judgment was affirmed. (24 October, i860), — £w. & Sieb. Bep. p. 109. 200 k.vndyan law op ma.iimage, Section 9. {From the Legal Miscellany) 1. Husband and wife. — 2. Patents and children. — 3. Widow and widowers. Husband and wife. i- Kandy D. 0. No. 2690-19472. — In a former case, No. 6g, tbe Dcffendani's father sued the husband of the present Plaintiff, during coverture, for tbe lands which are the subject of the present action. In that suit the Plaintifif's husband (Selappoo), in his defence, set up a claim to the lands in his own righr, and indei pendent of his wife the present Plaintiff. Selappcj failed in his defence, and the lands were decreed to the flaintiff in that case. In the present ac'ion (he Plaintiff rested her claim entirely in her own right, and independent of her husband. The defendant pleaded the former judgment in case No. f 9, with other grounds of defence. After repeated judgments both in the Appellate Court, and in the Court felow, the District Court found that the plaintiff had estah" lished a title by prescription j but that the former judgment was binding against the present plaintiff on the ground that, as she might have been a party to that suit, the record was consequently in evidence against her, and in support of this position quoted. I Slarkie, 260. The Supreme Court thought that this was trqe as regards the lessor of a plaintiff in an action of ejectnien', in which the defendant obtained judgment 2 Bac. Ah. 616. Such judgment may at any time be given in evidence against the lessor, for the pos" session of his lessee is his own possession, and his own title has been in issue. Hut not so in this case, By the Kandyan La\y there is no permanent coinunily of goods between husband and wife, and their res- peciive estates remain distinct from each other. The husband in the former suit claimed the laud as hjs own, independent of his wife, and the title of the wife was in no way , put in issue. The Supreme Court, therefore, considered that plaintiff was not bound by the judgment against her husband, and that she could maintain this action, and the Cuurt agreed with tbe Comt below that phiiuiill proved a [irescrip-! tive title. rsOM TEE LEOAL UISCELLANV. 201 The judgment of the District Court was set aside and the plaintiff was decreed entitled to the lands.-^ Dec. 14, (J) 1847. — ^eg Mis. p. 43a. Kurunegala D. C. No. i6ia6.— The Supreme Court decided in case No. 338 Kandy D. C. 36th January i860, that a Binna husband has no right to or interest in his wife's property after her death. The Oefendaat therefore has no right at all to retain possession of this land, and the Plaintiffs have by means of Defendant's examination given reasonable evidence to shew that they are at least among the next of kin. They are entitled to recover as against this Defendant, without prejudice of course to the rights of co-heirs if there be any. — ^une 14, 1864. Leg. Ms. p.S4- Kandy D. C. No. 'i93o6.^The point in issue in this case is, whether the respondent was the wife or concubine of Appoo Yidane, and it should be open to the appellant to prove that she was of lower caste, which would raise a presumption against the alleged marriage, unless the respondent could shew a due recognition of her as Appoo Vidane's wife; and it was also competent to the appellant to shew, by other evidence, that she was his, Appoo Vidan's, concubine and, if she should be of lower caste, she would only be entitled to acquired property and not to her husband's parveny property, and in this event it would be incumbent on the respondent to prove that the property sought by her to be recovered, is such as she is entitled to (^See Sawers' Digest p. 38).— Nov. 30, 184.7 (T). — Leg. Mis. p. 429. * 3. Kandy D. 0. No. 31896— The question rais- Farenti ftnd Cblldrn. ed on the pleadings is, whether the original Flaintiil was married in Binna or Diga ; if the former, she will be entitled to half her father's lands as against her brother, the original Defendant; if the judgment should be in favour uf the original Defendant, it is necessary to enquire how his son, the present De- fendant, got the land from his tathev.—{Fe&. 13, 1866.) Leg. Mis.p. 8. - Matale D. C. No. 3574.— Where a proprietor leaves issue by two marriages, bis property must be divided into two equal portions, and the issue of each marriage is entitled to inherit a moiety. A daughter * See Perera'a Armour, p. 8 § 7.-^A'U$tin, p. 147. 202 KANDYAN LAW OP MARRIASE, of the first marriage does not forfeit her right to a moiety of her parents estate by her Biga marriage, in favour of her brothers of the half blood, who are entitled only to the other moiety. — (1843.) — Lf^. Mis. p. 350. Golombo D. C. No. 437_5. — The Supreme Court fully concurs with the assessors that, by the Kandyan Laws, the plaintiff, as the only child of Dingihamy by his first marriage, is entitled to in- herit one-half of bis lands, and the children of his second marriage are entitled to inherit the other half thereof, subject to his widow's claim to mainte- nance from such latter half 5 even if Dingihamy is to be considered the sole proprietor from prescriptive right to his brother's share, by an uninterrupted ad- verse possession thereof, since his death, which plain" tiff admits to have occurred fifteen years ago. [1844.] —Leg. Mis. p. ^66. Kegalla C. R. No. 1222. — The land in dispute belongs to one ia^ama deceased. The defendant is hisissueby the first bed— the ist and and plaintiffs by the second bed, — the 3rd plaintiff (mother of ist and and) is the surviving widow. The plaintiffs now seek to recover an undivided half of the disputed land. Defendant admitting the above facts denies plaintiffs' right to any share of the deceased's lands, in as much as the ist and 2nd plaintiffs (daughters) are both married out in Figa, one during the father's lifetime, and the other after his death, and the widow having left her husband's house and not being in want. The following is the judgment of the Court below •.—Per Davids, {Commissioner.) " The two cases put ia pages 69 and 70 of Armour are not applicable here, as the facts difier, — if they prove anything it is that two JSinraa, married daughters of one bed do not inherit ex- cept under special circumstances. There is a case in Austin's Reports 4054, and a paragragh in Marshall 59 which would seem to exclude Diga married daugh- ters unless they were sole daughters. As the widow has left her husband's house, as her children are entitled to no share, as the lands are ancestral, and as the widow is not in want, the plaintiffs' claim cannot be admitted. Plaintiffs nonsuited with costs." In appeal, Mr. Advocate Ferdinands appeared for appel- lants. FROM THE LEGAL MISCELLAKT. 203 Per Curiam} " Set aside, and judgment entered for the plaintiffs with costs. In this case an ancestor died ieaviag three sons by a first wife, a second wife as a widow, and two daughters by the latter married out in Diga. The Court below nonsuited the three last parties who claim with the sons shares in the ancestral property as plaintiffs. The relationship is admitted. Daughters of the half-blood do not forfeit by any Diga marriage their right to inherit their parent's estate in favour of their brothers and sisters of the half-blood. D. C. Kandy, No. 17,^09. Collec- tive Minutes. June 24, 1843. Austin 88'. — Dec. 18, 1866— Leg. Mis. p. 113. 3. Ratnapura D. C. lifo. 5951. — The widow of Widows and WWowert, a husband dying childless has the same life'interest, ard that only in her husband's landed property, whether hereditary or acquired, as the widow of a husband who has died leaving issue. See Sawers' Digest, p. 63. Where a deceased had left near rela- tives, as nephews, his childless widow has only been held entitled to such life interest. — See Armour s Digest p. 19, 21.* An intervenient having joined a suit after the plaintiff's Replication to defendant's Answer had been filed, was bound to take up the suit in the stage in which he found it, and no further pleadings therefore ought to have been allowed. — {p. August ig, 1851.) — Leg. Mis. p. 44 5. Kandy D. €• No. 2>i'9^A- — The question as to the nature of the interest taken by a Kahdyan widow in landed property, was very fully considered in the following case, decided by the Supreme Court on the 3rd December, 1861. — Batnapura, No. 662|.— ''That the decree of the " ajth day of January, 1861, be affirmed, except as to "the amount of damages, the plaintiff under the 9th "clause of the Ordinance No. 8 of 1834 being only " entitled to recover the mesne profits for two years " prior to the commencement of this suit. Such profits " to be calculated on the same date as those given by "the judgment of the Court below." " In this cas3 the plaintiff's father bequeathed " certain lands to a Wihare, of which the first and " second defendants are the priests. This bequ est was * See Perera's Armour, p, 26. 201 KASPYAN LATT OF MAHIIIAGI!, " set aside in the Testamentary case No. i, j6 Ratnapura, '* as being contrary to the Proclamation of the 13th " September 18 19, when the lands so bequeathed de- " To|ved on the present plaintiff as heir- at. law,*' " The plaintiff now sues to recover the mesne " profits from April 18 j3 till February i860, the periD4 ".during which the defendants had possession of the " landS' Judgment has been given for the plaintiff " upon evidence, the defendant declining, to call any, " contending that the plaintiff should be nonsuited, " because the Testator's widow has not been made a "co-plainti£f." " The Supreme Court considers that the widow " being otherwise amply provided for by the Wilt of " her husband, has no interest in the land in question, *' and should not be a party to the suit." " AH that a widow is entitled to under the Kandyan " Law is maintenance and support, and for this purpose "she may receive from the heir either a portion of the '^prgdpcp of the deceased's parveny lands, or she may " b^ye the temporary possession and usufruct of a suit" "able portion of such lands, and in the latter case the " heir.at-law shall perform the Rajekaria or personal " service due on account of that portion. But in this " case being otherwise provided for, the widow does " not require, and is not entitled to further maintenance. " If the lands in question were the acjajred property of " the Testator, and as such subject to the life Estate of " the widow, it was for the defendant to prove such to " be the case, which they have not done." " It is moreover clear from the Will, that the " Testator in bequeathing other lands to his widow " while he gave this land to the Wihare, never intended " him to have any claim upon this land in question." The decisions before that time had been conflicts ing, and it was the wish of the Supreme Court to establish a permanent rule on the subject. The Su- preme Court then decided, that with respect to the family parveny property, the wife has merely a right to maintenance by the heirs, who takes possession of such property, and that she does not acquire a life estate in it. With respect to landed property acquired during the marriage, her rights are different, as is pointed out in the Ratnapura case. FROU THE LEGlIi ]IISCE];,L4NI. S{OS The Supreme Court considers the case ia Morgan Cimderlag, and SeRng p. 328, and other oases tba^ plight be cited, to have been overruled by the ^atua- pura decision, tti which we adhere. It fallows that, in the present case, the heir bad a possessory estate, in the parneny lands iiumediately after the father died, and that the time of prescription ^gaibst him runs from that date.-^^une 1$, i8$6.— ? Lff^. Mis. p, 32 SfidlOH 10. {From Lorenx's A^ecil MepQrts!} I. Basband and Wife.r-2. Parents and Children. I. Ratnapura, D. G- No. 665 n.-^-The piaimtifiB Husband and Wife, claimed ^21 i2«t as maintenance tior herself aod her child, li appeared in evidence that, the pkiniiff was the Digcu wife of the 3rd and 4th Defendants^ and tba6 the I si and and were the parents of tha 3rd and 4tb. There was no allegation whatever in the libd, shewing the.' liability of the ist and 2nd except the: statement, that the pkintifE's marriage took place with the eon. sent and agreeably to the wishes of the ist and 2nd'. The 4th defendant allowed Judgment by default; but the 1st, 2nd and 3rd pleaded several pleas. First,, that tha pjaintiff had left the 3rd defendant and gone with the 4tb, who was in collusion with tha plaintiff in this case. Second, that the child was not tfae joint child of the yd and 4th, but was the sole> issue p{ the 4tb ; aod third, that the said child was fprcibly taken away by the plaintiff, though the 3rd .defendant was ready and willing to support it. Upoa these pleadings, the case came on for trials and- uponi evidenoe on both sides, Mr. Miltfordgave the follow., ing judgment.:—" The Defendants' evidence is con. '" tradictory. It is admitted that 3rd and 4th defend- "aats and plaintiff are married fur fifteen yeavs, and) " the defendaiits have latterly taken her back to her "garents : she has, therefore, a claim for maintenance "from the estate, and the children have also a rever- " sionary interest in their father's property. It is " decreed that defendants do pay plainti£E.aiaiDtenance 208 KAMDTAN titf 01 MABMAO*. " at the rate of 5 shillings per month, from the 5th " September, 1855, ^"d for the future ; and that the " defendants db pay costs/' ^rom this the ist, and and 3rd defendants appealed. ' Dias.tor the Appellant.^ The District Judge did not clearly understand the points raised by the plead- ings. The case against the 1st and and defendants was quite differeftti from the case against the 3rd and 4th. There is no cause of action at all against the ist and andj and if they had -demuired, instead of answering, they would have been entitled to absolu^ tion from the instance. The effect of the judgment below would be to make parents liable for the debts and defauhs of the tbildreln, — a docti'ine, not warrant- ed by any Kandyan Law j on the contrary that law is directly the otherway {Marshall, p. g?! § lip)* With respect to the liability of the 3rd and 4th De- fendants, the District Judge hks lost ^sight of the distinction between the plaintiff's personal rights, and those of her child. First, with respect to the plaintiff's personal rights :— A Kandyan divorce is the easiest thing in the world ) it does not even require mutual con. sent. " The husband may, at any time, with or with- "out any just cause, discard his wife, and so may the " wife divorce herself from her husband, whether the " marriage was contracted in Diga or Binna-" {Armour, 13)-* According to the finding of the District Judge- that plaintiff was taken back to the parents by tlie defendants — she was a divorced wife 5 and even ad. mitting tbat she was repudiated or divorced by the husband, without sufficient cause, she would only be entitled to retain possession of the wearing apparel which her husband bad given her (^rJnoar, i5)t This view is strengthened by the case put by Armour, of a wife with child at the time of the divorce by the hus- band without good cause, where she would only be entitled to maintenance until the child should be old' enough to be delivered over to the father, {Armour 15)4 This is the law applicable to the case as presented by' the plaintiff herself ; but if the defendants' story be true the plaintiff is not entitled to any relief. Second. * See Perera's Armour, ^J. 9 § H. t See Perera's Armour, p. 14 § 19. I See Perer(i'i Armour, p. 14 § 20, tnOJi LORENk'a AnEAL AirOKTS. &07 Ij, as regards the claims of the minor child: — There is tio doubt that the father is bound to maintain his child by a divorced wife, till that child has attained the age. of majority {Artiiour, 16) ; * but the question here is. who is entitled to the custodr of the child ? The lather was willing to accept it, but the plaiutiff would not give it up. The Kandyan law on this point api peara to be that the father is entitled to the custody of the children of his divorced Dtga wife (Armour 15) t . The case was remanded for a new trial, the plain- tiff having no claim against the tJt and 2nd Defend., ants, and only against the 3rd and 4th, as long as she has the children in her charge- — Zlec. 15, i8j6. L^r Sep. Part. I. p. a, ij3. * . 2. Kandy, D. O. No. a^.ody.^The Plaintiff Parsnts and ChHjrw. claimed certain lands as the sister and heir of H.. Perera. The defendant in her answer disputed the plaintiff's right, and claimed the property as the widow ofH. Perera, for herself and on behalf of her child. At a previous trial of the case^ the District Judge found that the defendant had not been married to H. Perera, but that his child, though illegitimate, was entitled to the property as the acquired property of the father ; and gave judgment accordingly. On appeal against that Judgment, the Supreme Court was of opinion that the. Court below was wrong in departing.from the plead-, ings, the answer having set up a marriage, which had not been proved j and thereupon remanded the case to allow the parties to proceed on amended pleadings- At the second trial, upon such amended pleadings, the Court below held the defenda,nt entitled, on behalf of his child, to the property. On appeal against this Judgment,— [?^. Morgan for the. plaintiff and appellant.] The questions are — 1st. Whether the Kandyan law ought to govern the case. H. Perera was a low-country man, and both he and defendant were Christians. Ou reference to the Proclamation, it will be found that thet Kandyan law does not apply to low-country people. Proc. a March 1815, cl. 4. Again by Sec. 8 and 9 a distinction is drawn between native Kandyans and those who merely resort to Kandj. In the Proc. of 1818, p. 424 cl. 7, Kandyans alone are mentioned. * See Perera'a Armour, p. 33 § t See Perera'a Armour, p. 15. S66 sA]$sxAi; XAw o;i niA^BUof. and in the same proclamation, p 32", cl. ji, 9 provision is mad^ in respect of loijr-countrjnie|i and foreigner;, who are to be subject to t)iei Age^pt 9^ Government slpne, wttereas the Kapdyaqs ar^ to bq Qnder the Agent ^nd Assessors. I( seero^ theife^otre oliear, that the le«, loci v^s not to appi/ to low- country, people, ^f the contrary were held, it will follow that polygamy and polyandry ought al^o. to be countenanced ^mong then). and. Admitting that the lex lod would apply, can an illegitimate child inherit acquired propenj ?' The question of marriage cannot be entered into new, for the Gouit has already held that there was no marriage. Armour, p. 135,* is the only autbocity ia support of the view of tbe District Judge. The Dis- trict Judge refers to a case in the late Judicial Commissioner's Court ; but that if, a case of marriage, as tbe record will shew. Marshall refers to this rule, *'* P- i3^, c'. 78 of his Digest; but it would appear that, that there was a case ol' a low-caste wife, and it has therefore no application whatever to this case. Now, if the law< was doubtful, tbe Court should at least have taken evidence on tbe point. The importance of the case demanded such a proceeds ing. £ven if Armour's law was good and sound, it did not apply here, because tbe District Judge found that both were of equal caste. Again, the defendant said, that she had lived with Maddoma Banda, and left him fo live with the deceased. In such a case the parentage should bave been proved conclusively, r. Taylor on Evidence, iog. R. Morgan contra.] As to the first point I need only say a few words. The laws of a con- quered or ceded country are retained till changed by competent authority. Clark's Colonial Laws, 4, j. The proclamation referred to applies only to the mode of Administering Justice. [Bowe, 0- J', You need not labour that point]. As to the and point, the Kandyan law is as tbe District Judge has laid it down. Much of tbe difficulty has arisen from the ojrder of the Supreme Cuurt, in going upon a question. of pleading, without deciding upon the merits. The Judge held no marriage de Jecta, but that, under the • See Pere^a's Armour, ^ 34 § 3. FBOU L0BENZ'8,AFF£AL EGFOBTS. 2^ ciicumstanceB, the child was entitled. He seems to have held that illegiiicnate children are entitled to the acquired property. The facts of the case, however, prcve a clear marriage ; and the Supreme Court) on the last occasion, had sufficient before it to decide on' the meritH, but it avoided that question by going on a question of pleading. The Kaodyan law being some- what uncertain, we must look to general principles. [Rowe, C J. Is there any case in which Armour's dictum has been upheld?] the case referred to 'by the' Judge is set out in his judgment [^. Mbrgan^ *rhatis a case of a marriage with a low-caste woman] . It is said that Armour's case does not apply in every reS" pect, but if it applies to the children of an inferior woman, a fortiori to the children of a woman of a superior caste. Affirmed. — Sept. '22, 18^6— Lor. Rep. Part I. p. 1^9- SecTios 11. (From Grenier's Appeal Eeporta.) 1. Farenta and Children. — 2. Wdpws and*WfdQii37») unless it was intended that the gift of that garden was to be an absolute one she will then acquire a prescriptive title to it (Austin, p. 82, D. C. Kandy, No. i6,6jg). The plainti" has had exclusive poss- ession of half the garden Migahamulawatta for 15 or 16 years at the leas', and as Prescriptive Ordinance so strictly defines what adverse possession means, I hold that in the absence of any written agreement regard- ing the mode of possession intended when half the garden was given to plaintiff, and considering the length of time that has elapsed, the gift to have been an absolute one. Let judgment be entered that the plaintiff be declared eiititled to the Northern half of the garden Migahamulawatta described in the Libel, and that her claim to the rest of the lands be dismiss- ed with costs. The defendant to be declared entitled to all the lands in dispute, escept the portion of Migahamulawatta adjudged to be plaintiff's property. In appeal, (jGrenier for appellant, Ferdinands for respondent) Per Cayley, J "Set aside, a-xiA judg- ment entered for plaintiff for an undivided ihoiety of the lands described in the Libel ; but without damages^ It appears to the Supreme Court that the ease is sub- stantially one in which a Diga married daughter returns with her husband to the father's house, and in which the father assigns to them a part of his house, and puts them in possession of a specific share of his lands. In cases of this kind a Diga married daughter regfaina her Binna rights. — See Perera's Armour, p. 64."—Gren,Rep.oi 1873, Vol, ii. Part Hi. pp. 115- 116. Widows and WWowMB. ,, . *' ^''^\' ^\ (^- N°- J6.750— The question in this case was the Hght of a childless widow to claim • Perera's Edition. t Periroi,'s Ed;ition, FROM ORENIEB's APPEAL REPORTS. 211- both life interest and raaintenance from the acquired and parveni property, respectively, of her deceased husband. The District Judge (Moegan) put the widow to her election, on the ground that she could not claim both. la appeal, there was no appearance for appellant. Ferdinands for respondent. — The Dis- trict Judge's ruling was supported by a clear author- ity from Armour, p. i8,* that the widow could not claim both maintenance and life interest, and there was no appellate decision that he knew to the con- trary. The point was a new one, but Armour was a safe authority on such questions : Per Creasy, C. J. — "Affirmed: The defendant has not thought fit to appear to support her appeal. On hearing the Coun- sel for respondent and on examination of the case, it seems to us that the District Judge did right in follow- ing the authority of Armour, The Ratnapura case re- ported in L'gul Miscellany, decision of 1866, p. 33, differs in its facts from the present case." — Gren. Bep. of 1873. Fol. ii. Fart iVi.p. aj. Section 12. {From Eamanathan's Reports.). 1. Husband and Wife. — 2. Parents and Children. — 3. Brothers and Sisters. — 4. Widows and Widowers. I. Newera Eliya, _ P. C No. a.Say.— Per Husband and Wife, Guriam. — Every man is liable under the 37 clause of tbe Ordinance No. 4. of 184', who being able wholly or in part, to maintain his family, leaves his wife or his child, legitimate or otherwise, without maintenance or support, whereby they shall become chargeable to, or require to be supported by, others ; and there is no exception in the case of a Binna marriage vyhen- they are thrown upon others foi support. The defendant, moreover,, may be found guilty as respects the child, although the complainant may fail to prove her liabi- lity to support herself.— JwMe 5, iSjj.— iJam. Natk. Rep. i843-S5P- <5i. 2. Kandy, D, C. No. 19,93 i.—Per Ouriam.— Parents and Children, * Perera's Edition, 212 KAKBtAN LAV Of MAHEIA&E. The plaintiff is decreed to be enfitled to recover the ^V,lioIe of the land in dispute with cos's. In this case the original proprietor of the lands in dispute died intestate, leaving a widow and two daughters minors:, of whom the eldest married in Binna, and was the mother of the plaintiff; but the youngest was married out in Diga by her mother, and subsequently sold half of ihe lands to the defendant by a deed, under which he claims such moiety. The Supreme Court is of opinion that the mother was entitled to give her said daughter away in Diga after the death of her father, and that upon being so married out in Diga this daughter was debarred from inheriting any portion of her father's la'id, the whole of which devolved on her sister married in Binna.— t Armourpp.ii,, 114, 117, 118. — * January 4, 1851.— Earn. Ivath. Rep. 18+3-1855 pp. i_i,6 — n;?. Kandy, D- C. No. ao.SpS.— Per Curiam.— The decree of the District Court should be reversed, as we consider that the decision of the collective court in tho Matelle case No. 3,574 ought to be followed, and that the point was fully considered and decided in it, and also in another case from the late District Court of Kandy, (North) No. 1,333 heard at the same general session. The Digest of Sir Charles Marshall, Tit. " Kandy" par. 68, has been referred to, as favouring rather the rule of division per capita than per stirpes. The por. tion of the Digest was not published uotil after the above collective decision ; and the judges would. cer. tainly inclitie to such a rule of division as being most consonant to natural justice, if they could view it'ag an open question, and consider the result of the vari. ous conflicting decisions fully justified such opinion, which they cannot do. The rule that a Diga daughter inherits exclusively when she is the only issue, and a moiety, if she is sole child of the first marriage, (although there may be several children of a second marriage), may be re' ferred to as strongly in favour of the rule of division per stirpes. Ttiere seems to have been a difference on thie point between the Udaratte and Saffragam customs, • See Perera's Edition, pp. 20. 64, .65. FROM bamanathan's eepoets. 213 and much difference in practice has occurred, which render! some legislative provision desirable. Under all the circumstances, the parties will bear their own costs in appeal. — June ii, 1851.— Bam. iVa^A. Bcp. r843 — 1855.— j6 -J 60. Kurunegala D. C. No. 14,559. — The Supreme Court affirmed the decree of the Court below as follows: — The defendant has entirely failed to make out the charge of gross profligacy which he brought (most discreditably to hitu^elf) against his sister, the plaintiff. As to his charge that plaintiff has degrad- ed the family by marrying a low caste man, it is proved that the defendant d'ove her to contract that marriage by his ill usage, and bis illegal refusal to afford her the maintenance in the paternal house to which she was entitled. ' For thfe defendant now to cause the plaintiff's dis-inherison \by SPtting up that marriage against her would be to allow him the advantage of his own wrong.-^October 27, 1863, {Collective) Bam. Nath. Bep. p. 49. Badulla D. C, No. i,, 3 11.— Per Curiam. — Plaintiff is entitled to recover one half of her father's lands, as being the only child by his first marriage, although given out in iDiga by him, and the other half of the father's lands devolves on the children by his second marriage. The above rule of inheri- tance has been acted on in several casef*, following a collective decision on the point. D, C Kandy, No. 20,898. D. C. Matale, No.! 3,574.: D. C. Kandy •North, No. 1,333: July 5. 18^4.— Basm. Nath, Bep. 1843—1855. p. 54. :: Kegalla C. B. No. 1,222.— The land m dispute belonged to one Lekama deceased. The defeiidant was his issue by the first bed, — the first and second plaintiffs by the second, bed,— the' third plaintiff (niother of first and second) was the surviving widow. The Plaintiffs now Eonght to Ireedver an undivided half of the disputed i land. Defendatot,' admitting the above facts, denied Plaintiff?s right . tb any share of the deceased's lands,:inasmuch as the first and second Plaintiffs (daughters) were both married out in BigUf one during the father's life time, and the other after his death, and the widow had left her husband's house not being in want. The Commissioner non-suited Plaintiffs* 214 KlNDYAN LAW OF UABBIAOE. On appeal Fer'idnands appeared for Plaintiffs appellants. The Supreme Court set aside the order and en^ tered judgment for Plainti£fs, as follows : — In this case an ancestor died leaving three sons by a first wife, a second wife as a widow, and two daughters by the latter married out in BigOr, The Court below nonsuited the three last parties who claim, with the sons, shares in the ancestral property, as Plaintiffs. The relationship is admitted. Dau- ghters of the half blood do not forfeit by any Biga marriage their right to inherit their parents' estate in favour of their brothers and sisters of the half blood. D. C- KandyNo. 17,5091 Collective Minutes, June 24, i843> — Austin, %S, (1866). Bam- Nath. Bep. p. 22t. Brothers and Siatera. 3. Kandj.D C No. isi3-— Per Curiam (OH. phant, C. y., Carr, y., and Stark, y.) : —Degree modi- fied by it being decreed that the plaintiffs are entitled to recover one-half of the lands in dispute, and that both parties do pay their own costs in this case. The late father of the second and third plaintiffs and ist defendant having left issue by two mar- riages, his estate should be divided into two equal portions, and the defendant being the only child by one marriage, is entitled to a moiety of her parent's estate, and would not forfeit such right by her Diga marriage in favour of her brothers or sisters of tbe half blood- There Bppears'to have existed a difference be- tween tbe Sqffragam and Udderatttcastovasoa tiiis last point, as by the SafEragam customs a Diga daugh- ter of the half blood would never forfeit by any Diga marriage her right to inherit a share of her father's estate in favour of her brother and sisters of the half blood ; whereas the old Udaratte customs made a disitinciion ia such cases as to the rights of the daughter when she had been married in. Diga by her father, and where she married in Diga subse- quent to his decease. Yet, this 'distinction never extended to the mother's estate; and ev6n in respect to thte father's estate, it does not, from the cases cited at the bar appear to have been . adhered to or afcknowledged latterly by > the Kandyan Chiefs : (who have been examined in the SupremeiCourt as assess r ors, and as witnesses to the customs), the tnore FROU b&ua.kai:h&-ii*s reports. 215 liberal custom having generally prevailed, viz :— that the daughters of the half blood do not forfeitj by any Biga marriage, their right to inherit their parent's estate in favour of their brothers or s^isters of the half blood.— June 24, 1843.— /?am. Nath. Rep. 1843 P 1-2. 4. Kandy D. C No. 33,964.— The following is Widows and Widower*, the judgment of the Supreme Court: — The question as to the nature of the interest taken by a Kandjan widow in landed property, was veiy fully considered in D. 0. Ratnapura, No. 662^ decided bj the Supreme Court on the 3rd December, 1861. The decisions before that time had been conflict- ing, and it was the wish of the Supreme Court to establish a permanent rule on the subject, Tbe Su. preme Court then decided, that with respect to the family paraveny property, the wife has merely a right to maintenance by the heirs, who takes possession of such property, and that she does not acquire a life estate in it. With respect to lands acquired during the mar. riage, her rights are different, as is pointed out in the Ratnapura case. The Supreme Court considers the case in Mor- gan, Conderlag and Belingp. 32S, and other cases that might be cited, to have been overruled by the Ratnapura decision, to which we adhere. It follows that, in the present case, the heir had a possessory estate, in the paraveny lands immediate- ly after the father died, and that the time of"pre£crip> tion a'gainst him runs from that date. (i86d). Ram. Nath- iBep.p^ 190. Present :—CrbASY, C. J-, Stbblino, J<, and Tkmflbr, J. Batnapoora No. 662|.— The following judgment of the Supreme Court sets out the facts of the case!-*-' In this case, the plaintiff's father be^U^athedbei'' tain land to a JJ'ihateoi which the£fst^atl(l seiCOnd defendants are the priests. This .be(J[Uest was set aside in tbe testamentary case No> 1 j6 Ratnapoora, as being contrary to the Proclamation of 'the -i 3th September, 1819, when the lands so bequeathed devolved on the present plaintiff as heir-atrlaw. . : The plaintiff now sues to recover the mesfie pro-j 216 KANDYAN LAW OF MiRRIiG^, fits from April 185,3 till February 1S60, the peiiod during which the defendants had possession of the lands. Judgment has been given for the plaintiff upon eviience, the defendant declining to call any, contending, that the defendant should be non-suited because the testator's widow has not been naade a co-plaintiff. The Supreme Court considers that the widow, being otherwise' amply provided for by the will of her husband, has no interest in the land in question and should not be a party to tlie suit. AH that a widow is entitled to under the Kand- yan Law is maintenance and support, and for this purpose she may receive from the heir either a portion of the produce of the depeased's paraveny lands, or she may have the temporary possession and usulruct of a suitable porlipn ol .such lands ; and in the latter- ease, the heir'at'law^ shall perform the rajakaria or personal service due on account of the portion. But in this case, being otherwise provided for, the widow does not require, and is not entitled to, further main, tenance. It the lands in question were the acquired property of the testator, and as such subject to the iife-estate of the widow, it was for the defendant to prove such to be the case, which they hav€ not done. It is moreover clear from the will, that the test- ator in bequeathing other lands^to his widow,, while he gaye this land to the Wiharet never intended hitn to have any. claim upon this land in question. The decree of the Court below is afHrmed^ ex- cept as to the amount of damages, the plaintiff, under cl. 9 of the Ordinance No. .8 of . 1834, being only entitled to recover the mesne profits , for two years prior to the commencement of this suit : such profits to be calculated on the same date as those given by the judgment of the Court below, (18&1) —Earn. Nath. Bep. p. 11 a. Badulla D. G. No. 501. — The mother of the de- ceased applied for letters of administration, bat was opposed by the Binna married widower and the de< ceased's first cousin of full blood. The D. J. (Gibson) decided that tbe applicant's claims hould have precedence. On appeal, (Langenberg for appellant), this find^ $ng was set aside in the following terms:— The Rules and Orders, which are of general appli* cation, evidently regard (see sec. 4w c. 6.) the widower as having a preferent right over all others to the administration of his deceased wife's effects. It may be that formerly, in Kandyan Districts owing to a Binna husband being liable to be discarded at any moment by his wife, the right of such a hus- band was deemed inferior to that of near relatives of the deceased wife. But in the present case, the first opponent was legally married to the deceased, the marriage being duly registered, and consequently as indissolubly allied as oLher married persons. Further it is alleged that the deceased left a minor adopted child, who is in the charge and custody,of the appellant. Under these circumstances,, without being un- derstood to express an opinion as to. the validity or otherwise of the alleged adoption, it appears to us that administration should be granted to the husband of the deceased 5 and it is accordingly ordered that letters of administration do issue to him, on his complying with the requisite preliminaries. Per Stewart, J, (1877).— /?ttm. Natk. Bep.p. 26. Kandy D. G. No. 270. — After the death of Dona de Silva, the administratrix of her brother's estate, an application was made by the niece of the intestate for letters of administration de lonis non, alleging that she and one Louisa Caldera were the sole heiresses at law of the said iiitestaft. But a Counter application was made by the husband of the late administratrix, who stated that he and the minor children left by the late administratrix were the heirs at law. The main ground on which the niece opposed the appointment of the counter applicant was that the late administratrix was married in Diga, and there, fore that neither she nor her children were heirs of the intestate. _On appeal, Langenlerg for appellant : parties domiciled in the Kandyan Provinces are governed by the Kandyan Law, Kershaw's case, Trowell's case (D. 0. Kandy 5^,070, 21st September, 1875), D. G. Kandy, 31,944, 5th November, 1863. That law 218 KANBTCAN iAW 01 MAREIARE. is operative as a whole or is not operative at aM, Portions of it cannot be exempted as having no effect* If the Kandyan law is to rule this case^ the late ad- ministratrix, as married in Ihga, is subject to all its. incidents. Her husband is not entitled ta adminis^ tration. Ftrdinarids, contra: The judgment of the Dis* trict Court is right, but its reasons are wrong. The husband is the proper person to wind up an estate which bad been adtuinistered to by the wife. Even if the administratrix had been married in Diga, h would not create a forfeitare of her brother's acquired pro- perty^ as this was: Pei era's Armour p. 30. In a case of administration, the D. J. ought not to have entered upon the difficult question of domicile. It was pre^ mature and— Stewart, J» did not want to hear him further^ but agreeing with the learned counsel, afErmed the judgment, but not for the reasons given by the Dis- trict Judge. — Bern. Nalh- Bep, (1877) ^ ^.o^ Kandy D. G. No. 28,7^6 — The circumstances, under which this case was this day brought under the review of the Supreme Court, are briefly these : — The plaintiSs, as sons of one Naida Durea,. de- ceased, claimed certain lands, which were alleged to. be in the forcible pwssessii Q of the defendant, who, in his answer, denied that the first three plaintiSs were the issue of the deceased, and while admitting the remaining four as such, stated that, as son of Naida Durea by his first wife Rankirri, he was en- titled to the lands in question and had possessed them for over 10 years. Pplwattegedere Punchee, as widow of Naida Burea, intervened in support of the plaintiffs' claim^ The D. J. held that the intervenient was the wile of Naide Durea ; that the plaintiffs were the issue of that marriage j that the laods were possessed by thenx up to the forcible possession by the defendant, and that the prescriptive possession of ttie defendant, even if satisfactorily pro\ ed, could not prevail or have any e£ect against the life interest of the widow, the in- tervenient. The Supreme Court set aside (% 1st June, 1864), this judgment, and remanded the case for further hearing, on the ground that the D. J, had not adjuclj.. FROM EAMANAIHAN's REPORTS, 219 cated on the question, whether defendant was the son of Naida Durea by another wife, nor on the question of possession. "The widow, the intervenient, if there was issue by another bed, would only have a right over half the estate of Naide Durea. For the nature of her right, see 661^ Eatnapura, decided by the Supreme Court 3rd December, 1861. Prescrip- tion, if satisfactorily proved, would prevail against it. If these lands were the acquired lands of Naida Durea, and not paraveny, the widow might have such a possessory right in them as to make her a tenant for life, and to make the plaintiffs mere remainder men. In that case, prescription would not run against the plaintiffs, though it might run against the inter, venient daring her life-tirae. Enquiry should be made as to whether these were the acquired or para, veuy lands of Naida Durea,. and in every point of view, it is material to ascertain whether defendant is Naida Durea's son by another marriage." On the second trial, the D. J. was of opinion that the defendant had failed to prove that he was the son of Naide Durea and Rangkiri> and also his prescriptive possession. The lands in dispute were admitted to have been paraveny lands, and as there was no proof of the widow (the intervenient) having been provided for by her late husband, the D. J., following the judgment of the Supreme Court in D. C. Eatnapura 662^, held that the intervenient was entitled to maintenance and support, for which purpose she was to receive from the heirs of her de- ceased husband, Kaida Durea, either a portion of the produce of his paraveny lands or the temporary possession and usufruct of a suitable portion of the said lands; The Supreme Court set aside (4th October, 1867) this judgment also and ordered the case to be heard de novo-. Mr. Berwick held (28th November, J 867) that the plaintiffs and defendant were alike the children of Naida Durea,. but as defendant had failed to prove 30 years' adverse possession against the co- heirs, in terms of the Supreme Court decision in D. C' Golomla 38,339, June aist, 1866,. the plaintiffs Were entitled to half, and the defendant, as their st6p: brother, to the other half, of Durea's estate. No appeal was taken, but on the 29th Septem* 220 iAJJDYAN LAW OF MARRIAGE. ber> 1875, the defendant obtained permission from the Supreme Court to file his petition of appeal against the finding of Mr^ Berwick, on the ground that Mr. Berwick's judgment was based on a mis- apprehension on the law of prescription in respect to eo.beirs. Upon the lodging of the appeal the plaintiffs petitioned the Supreme Court to permit them also to appeal against Mr. Berwick's finding as to paternity, based as it was on evidence taken at the second trial, and read, but not heard by Mr. Berwick. Grenier and Fan Langenlerg for defendant and appellant, Cayley, Q. A . and Ferdinands, Q. A., for plaintiffs and respondent, "Per Stewart, J. set aside j the decision in this ease proceeded on a misapprehension of a judgment of the Supreme Court, the then District Judge of Kandy [Mr. Berwick] holding that, according to that judgment, a co-heir could not acquire, as against a co-heir, a title by prescription, alitiough the party has been in undisturbed possession of land for the full period of ten years j a construction entirely erroneous, as pointed out by. the Supreme Court in C iJ. Batticaloa 96JJ, VdnBerstraaten s Reports p. 44. In view of the result of a subsequent case between the parties in respect of other lands (connected case No, 51,506), in which the judgment was based on the ground that adverse possession for ten years was sufficient to give a prescriptive title, it appeared to the Supreme Court that it was only equitable, not- withstanding the lapse of time, to give the defendant in the present case (No. 28,756) an opportunity of appealing from the judgment against him, in order that he might be placed, if the facts permitted, in no worse position than his co-heirs and co-litigants. We were pressed by the learned counsel for the respondents to remand the case for another hearing. But having closely perused the proceedings, com- prising no less than three trials, we are of opinion that there is no need for further protracting the liti- gation between the parties, which has already extend- ed over a period of more than 20 years, the evidence adduced appearing to us satisfactorily to establish a title in the defendant by prescriptive possession, FROM EAMANATHAN's REPORTS. 221 It is accordingly decreed that the claim of the platntiffs be dismissed and that judgment for the lands in question be entered for the defendant, the defendant being hereby declared to be disentitled to damage or compensation from the plaintifEs, In regard to their possession of the said lands up to the notifi- catioQ of this judgment. Parties to bear their own costs. — (1877) — JKaw. Nath. Bep. p. 54. Badulla D G, 19,244. — Plaintiff sued in eject- ment, averring that defendant had ousted him from certain lands belonging to him by paternal inheritance. Upon stating in his examination, that his mother (who was alive) had a life interest in the lands, the proctor for defendant moved that plaintiff be non- suited, on the authority of cases Nog. 14,823, 14,587 and 19,880 decided in appeal, in which the Supreme Court was stated to have held that the heirs could hot maintain an action in support of their shares till after the decease of the mother. The learned District Judge upheld the objection and nonsuited the plaintiff, though the plaintifE was prepared to shew that her mother was aware of the action instituted by him, and bad been given 5 pelas for her maintenance. On appeal Fan Langenberg for plaintiff cited B. C. Eatnapura 6625, June 15, 1866, and D. C- Kandy, 5<5,750, Grenier, 1873, Pif. 3, js. 25. Grenier for respondent relied mainly on the cases cited in the court below. The Supreme Court thought the District Judge was wrong in construing the words of plaintiff aa an admission that he, plaintiff, bad no present estate in any of the lands he claimed, particularly as plaintiff's proctor asked to be allowed to lead evidence to prove that the mother had a piece of land of 5 pelas in extent apportioned to her maintenance. Set aside and case sent back for trial. — (1877).— i?«?«. Nath. Rep p, 146, 222 kandtan law 01 mahriabb. Section 13, (From the Sv/preme Court Circular.) 1. Husbancl and wife.— 2. Parents and children — 3. Widows and Widowers, Prwent .—PhbaEjO. J— Stewaet, J-, anb CLAB.ENCI'f J. (zi January, iSjp.) BatnapuTa D. C. No. gg~>. Kandyan law — Diga zvifb— Desertion by husband- Maintenance— Alimony — Decree foit, A £andyan took his wife back to her parents' house against her will, and left her there without maintenance. He!(ii, tha^ the wife had a right to ask the Conrt to assess and award her maiutenanoe, pending desertion. This was a suit by a Katidyan wife against her liusband for alimony. On appealby the defendant from a Judgment ' pronounced against him by the Court below. Dornhorst appeared for the appellant. Cur, adv. vult^. The following is the judgment of . the Court de> livered by Clarence, J., — (gofA January). Haabaod and wife. I'he plaintiff and defendant are Kandyans, hus- band and wife; plaintiffj the wife, sues her husband, the defendant, averring that he deserted her in January last, and she claims to recover from him alimony from that date at the rate of forty rupees per mensem, for her past and future maintenance. The defence pleaded is that there was no desertion, but that plaintiff was guilty of adultery with defend- ant's brother, Sara, and > on defendant remonstrating with her, she left defendant's house in April> not in January. If is admitted that plaintiff is now living with her parents- Defendant appeals from a judgment .decreeing him to pay plaintiff alimony at twenty rupees per men' Bern, from the 27th January last, until he again main- tains her, and casting him in the costs of suit. The case falls under Kandyan law, and there does FBOU IH£ SUFRBUI COURI CIRCUIIS. 223 not appear to be any policy ascertainable in Kandyan law to prevent a wife, whose husband refuses to live vith and maintain her from claiming from him ali- mony, until he resumes maintaining her as his wife. A Mahomedan wife undoubtedly could do so, and having regard to the general character of the marriage relation according to old Kandyan law, which is very different from that of Christian com. m unities, we see no reason founded in the public policy of the Kandyan community, against such a claim as the present. Plaintiff is a Di^a wife, married to live in her husband's house, and her allegation is,, that he has turned her out of his house, to live himself with another woman. The trial has certainly been but an imperfect one. Plaintiff hereby deposed,— " I was taken back to my parents' house against nny wishes. Defendant has not since asked me to return. My parents are supporting me * # * Defendant is now living in the house ol Punchi Idenika's parents." How she knows that defendant is living in the house of Funchi Menika's parents^ plaintiff does not explain. A Mohandiram is nest called, who deposes that he was at the house of plaintiff's parents, when defendant brought her there and . left her, say. ing that he was going in search of an employment' and would leave her there for a few. days. The wit* ness also says that he " knows that defendant is Jiving with another woman." Another witness, UkkU' barai, also says, he " knows" the same fact as to the other woman, but neither of them states how he knows it. This is all the evidence for plaintiff with the exception of two witnesses called to prove the cost of maintaining a person of her position. For the defence, defendant swears that plaintiff was taken away from him by her mother, on $he occa- sion of his having scolded her (plaintiff) for behaviour towards his brother. Defendant calls some other wit- nesses who are mere vouchers for his side of the case, and prove nothing. In this state of the evidence, the case has ob' viously been imperfectly investigated, but as the evi' dence stands, there being direct evidence of defend- 224 KA.KDYAN LAW OP MA.EEIA.GB. ant having left plaintiff at her parent's house,' which is not met by anything but vague and general asser- tion on defendant's side, this evidence on plaintiff's side seems to preponderate over that on defendant's side. Defendant, moreover, admits having granted a gift.deed in favour of Puncbi Menika, the woman for whom plaintiff accuses him of leaving her. Defendant attempts to explain this by saying that he granted it in order to forward a marriage between his brother (the brother with whom he says that plaintiff misconducted herself) and Punchi Menika. The terms of the deed, however, express the gift as made in consideration of " love and aSec tion" towards her, and of her being " humble and obedient" towards himself. There thus seems reason to consider that the District Judge's view of the facts is substantially right, and in this view plaintiff is entitled to call upon her husband, defendant, to maintain her in her pa- rents' house until he is prepared to take her back and maintain her in a becoming manner in his own house. The decree to which plaintiff is entitled will be a declaratory and mandatory order in the nature of an injunction, fixing the amount to be paid by plaintiff to defendant for that purpose and enjoining him to pay it. There does not appear to be any ground upon which plaintiff can recover anything from defendant in respect of her past maintenance before action brought for the time during which she has in fact, according to her own account, been maintained by her parents. The. decree appealed from must be varied. In view of the decree appealed from, the decree will be,- It is declared that plaintiff is entitled to receive from defendant twenty rupees per mensem as main- tenance, until such time as defendant is ready to re- -ceive her into his houte and maintain her in a be- coming manner as his wife ; and it is decreed that defendant do pay plaintiff forthwith maintenance money at the rate of twenty, rupees per mensem from the ajth April 1878, (the date of tbe institution of the suit) to the end of last month, and do also pay plaintiff a further sum of twenty rupees at the end of the present and every future month respectively, rnOM THS STJPREJCB COURT CIRCUtAB. 225 and that defendant do pay plaintiff's costs in ths Uistricl Court. No order as to appeal costs. — Sup. Court. Cir- Vol. II. No. g.p. a- Present : — Burksiob, C. J., and Lawrie, J. doth May and loth June, 1884.) Ratnapura, D. G. No. 2416. Prescription — Payment of tax — Adverse possession— Kandyan Law— Husband and wife. Where two brothers married two sisters and both families continued to live in one house on the ances- tral property : Seld, that the commatation registration in tho name of the widow of one of the brothers, and the payment of paddy tax in her name for a period of 38 years, was not of itself sufficient to create a pre- scriptive title in her as against heirs yrho had con- tinued to reside on the same ancestral property with her during the whole of that period. Held, further, that the fact, that after the death of the sisters the other became the associated wife of both brothers, did not constitute her the heiress of the brother to whom she had not been conducted, so as to entitle her to inherit as against the children of the associated husband and wife. This was an appeal by the plaint!£F from a judg^ ment of the District Court dismissing plaintiff's action. The facts sufficiently appear in the Judgment of Lawrie, J. VanLangenltrg for plaintiff-appellant., Browne for defendants-respondents. Cur Adv Vult. On the 10 June the following judgments, affirm' ing the decision appealed ttova, were delivered : — Lawrie, J. — Both parties are agreed that the land in question belonged to Mohottala, but) as I shall afterwards have occasion to point out, this does not seem to be very certain. Mohottala bad a brother, Muhandiram, Mohottala and his brother Muhandiram married sisters, Hami Mahatmeya aad the plaintiff. Tho 226 KANBTAN EAV OF JtAEKIAOE. two brothers and their wives lived in the same house. The District Judge, who had just stated that he required clear proof of an associated marriage, said " the inference to be deduced from these brothers and their wives living together need not be mentioned." It he meant by that the plaintifE was the wife not only of Mohandiram, to whom she had been con- ducted but also of Mohottala, that is exactly what the plaintiff wished the court to believe. I venture, however, to differ from the learned Judge, and to state that as my experience of my ^andyan custom, that when two brothers hava each conducted a wife to the family house and live there, there is no room for the inference that the marriage became associated or mixed. In a K^ijdyan house each married pair live in a separate room, and the children born by each of the wives are, by Kandyan Law, regarded as the children only of the man to whom their mother was conduct, ed, unless there be evidence that subsequent to the marriage an unmarried brother became, by consent of both husband and wife, an associated husband. That is consistent with the Plaintifi's evidence. She sajs she did not live with Mohottala as his wife until after her sister's death, and her case is tliat she had chiU d^ep to Muhandiram alone who succeeded to his lands to the exclusion of the child of her sister ; hat if both sisters were the wives of both brothers, Hami Mahatmey's son (second defendant) would have had right to half of Muhandiram's land, which he seems neither to have claim^ed nor possessed. I take' it then, as admitted by both parties, that prior to the. death of Mohottala's wife there was no associated marriage. Did Mohottala's wife predecease her husband ? The plaintiff says she did, while the and defendant (her son) and the kbrala (her brother) say she sur- vived him. The Korala's evidence on this point, however, is hardjij not consistent with his statement that he regist^ered the plaintiff as owner of half of T^ohottala.'^ land, because she said she had assisted Mohottala. By the assistance the Kandyans usually iqean assistance when a man is old and sick and djjngi and I cannot but think that the registration in IROM THl STTPEIMI COTJIIT CIRCtTLlR. 227 the plaintiff's name would not have been made if, at that date Mohottala's own wife had been alive. But even if Mohottala did survive bis wife (Hami Mahatmeya) and continued to liie in the same room with his children, I do not think that Kandyan custom lead* us to infer that be forthwith joined hig brother Muhandiram as the liusband of the plaintiff. I do not say that such would have been thought ille- gal, or even very unbecoming, but 1 do not tbiiik it is an inference which should be drawn without proof. On the evidence before me, I think tliat the pla'miflf was not Mohottala's wife. Even had hhe proved t^he was, she would not have succc ded by law to ball of his lands on his death. She would have had right to maintenance only, and the properly would have pass- ed to bis children. Her strength lies in the evidence of her continued possession of the lands : it is a pos-ession which, perhaps, is not adverse to her own children, bu-t what she seeks to prove was possession adverse to her nephew, the 2nd defendant. Apart from the regisi rations in her name and of the payments of tax by her son, or by her brother oil her behalf, the proof of possession is not conclusive. The crop of all the family lands was brought to the family house in which all lived. There is no evi- dence as to any separation of the crops, or of tbe storing of the crop of some fields in one granary, and of others in another granary. Prol ably, all the family lived somewhat scantily on the whole crop, and bad but little to save or sell even in thebes" years. The plaintifif after her husband Muhandiram''^ death, must have been an elderly lady, and aid not interfere with the cultivation of firlds. The strong point in the rpgistrations in her favour I find difficulty in reconciling those regis- trations with the admitted fact that tbe whole fields belonged to Mohottala, The whole was. not his by. inheritance, for he bad at least one brother, Muhandiram, and we hear of nodivisioti of the family estate, nor is it said that these fields belonged to Mohottala's father. In the registration of 1833 I find that the whole field did not belong to one man, bat to two. Neither of them was Mohottala. There is nothing to shew 228 KiNDtAN LAW OF MARRIAGE; how between 18^3 and 1845 the two portions liad been acquired by Mohottala. Certain it is that in 1 8 4. 5 the plaintiff is entered as owner of half. We have no evidence as to who was registered as owner of the other half, perhaps the second defendant, but I have hesitation in presuming that without proof. The registrations of 1870 and i83o rela'e only to one-half of the land, and in both cases the plaintiff is registered as owner. I have felt hesitation in rejecting the plaintiff's claim founded on possession proved by her having lived for more than 40 years in the house to which the produce was brought, but in which, it must not be forgotten, the defendants also lived. She was all that time registered as owner^ but that is not in itself conclusive, as it is not proved to have been with the defendants' consent. For part of the time at least she paid tax; the payment of tax is important, be. cause, for a portion of the time", had the second de- fendant been the real owner, no tax would have been exigible as he was arachchi of his village and his own laiids were free from tax. But, on the whole, as the plaintiff had no right to these lands as Mohottala's widow, for she was never his wife — and if she were, she was not his heir, I arrive at the conclusion that the judgment should be affirmed, Burnside, C. J. — I concur. The plaintiff has failed to establish that she was the wife of Mohottala, and, even if she were, she could not claim as heiress to his lands. She at the most could only have been entitled to maintenance, which I think she was re- ceiving out of the profits of the land, and upon which she now claims a title by prescription. Even if she were registered as owner, that in itself gave her no title to the land as against the proper heir.— Sup, Court Cir, Vol. vi. No. 2%. p. Sj. mOM.THS SUPEBMB COTJUrBIIilC'CLA.K. 229 Present:— ?HSAU, C. J., Cl4BEnce, J., anb Bias, J. (J^uly gth, 1878.) Kurunegala, D. G. No. 20456. Under Kandyan Law, ancestral property, when the direct line of descent is broken, goes over to the next nearest line issuing from tthe common aapestral roof-tree. ttt! Consequently where the owner of paternal ^^o^- weni property died, leaving him surviving the sons of bis paternal uncles, and the son of his mother by a second husband. Held, that the sons of the paternal uncles inherit- ed the lands. 2.— The following; judgmet>t of the learned Dis- Parents and Children, trict Judge (Mr. J. H. de Saram) explains the facts of the case : — "This is a case involving a question of succes- sion, under Kandyan Law. The facts as admitted, and on which the case was submitted for decision, are as follows :'— " Appuharai, 'the proprietor of the lands in dis- pute, died in March, 1877, without issue and left no widow. The plainti£fs are the sons of Appuhami'a paternal uncles, and the defendant is Appuliami's step-brnther, that is, the son of his mother by her second husband. His f Appuhami's) mother is dead, and the lauds were his paternal paraweni property. The question is, who, under the above cirqumstances, is his next of kin ? " The policy of the Kandyan Law in respect of paraweni property^ I?, 'that it reverts to the source whence it came, failing wife and children. In this instance, it must revert to Appuhami's father's family, that is. to his father's brothers, or those brothers children, viz., the plajntifEs, {Marshall's Judgments, p. 347, sec. 10^), Sawers p. 13, quoted by defend- dni's proctor, evidently refers to acquired properly. Let judgment be entered for plaintiff for the land ia question andcosts." . 0(| appeal, the judgment of the Court was delivered' as follows, by Phbae, C. J: — The judgment of the District Courtis clearly right. The governing principle seems to be that the ancestral property, when the line of descent is broken, 230 KAUDTAN LATV OF MAKEIAGB. goes over to the next nearest line which issues from under the common ancestral roof tree. Here, the defendani evidently does not trace his line of descent from the same ancestral roof as the deceased Appu" hami. Although his mother was also Appuhami's mother, it must be assumed that, on her second marriage, she departed from her husband's family and entered that of her second husband. Even if she had in fact taken a binna husband into the house of her deceased husband, and if a second family had been born to her, and lived tliere, yet in regard to the inheritance of the deceased husband's property, both she and her second set of children must always be treated as if they stood outside. See Armour (Perera's edition p. 37, seep.) Indeed, all the author' ities quoted lie one way. I'or sec. 82, p. 339 Mar. shall, upon which Mr. Van Langenberg rested his appeal, is not inconsistent with the others. In the case there mentioned, Mr. Sawers tupposes the mother to take her husband's propeity by inheritance after and from a son by him ; then upon her death, leaving a son by a second husband, this son takes the property from her, in this way becoming an ultimate not immediate, heir of his half-brother. And Mr, Sawers says this takes place reciprocally, that is^ that the same rule is applicable whichever father is spoken of. Probably, it Hiay well be doubted whether this is good Kandyan Law. But at any rate, it does not clash with sec 85 on the next page of Marshall. In sec. 84 of p. Z'^o Marshall, the half- blood ha\e same father, and in fact constitute the next line issuing from the same ancestral xooi.—Sup, Court Cir: Vol. J- p. 3. Fresent: — Claeeence, A. C. J., and Dias and Grenieb, jj. (mi and i6th May, 1882.; Eandy, D. G. No. 88284. Kandyan law — "Acquired" land — Inheritance. A Kandyan bought land, gifted it to a son, K., and died, leaving him surviving K., a sister and brothers and their mother. K. afterwards died childless and instestate, leaving him surviving the sister and brothers and mother. PKOM THE S0PfiEME COTJRT CIRCTJLAU, 231 Held, affirming the decision of the District Court, that the land was to be considered as the " acqu'r- ed" property of Kuda Heneya, and as such passed on his death to his mother. The sole question raised Upon this appeal was whether, upon the death of one Kuda Heneya, who died childless and intestate, a certain piece of land, of which he died the owner, passed to Kuda Heneya 'a mother, through whom plaintiff claimed, or to Kuda Heneya's brothers and sister, through whom defend- ant claimed. The land had been bought by Kuda Heneya's father, who, in his life time, gifted it to Kuda Heneya, and died, leaving him surviving Kuda Heneya's mother, and brothers and sister. The District Judge, holding that the land must be considered the '^ acquired" property of Kuda Heneya, and that on his death it passed to his mother, upheld plaintiff's claim of title. Defendants appealed. Browne for defendaat'appellant. This land having been obtained by H!uda Heneya as a gift from his father, is impressed with the character of inherited or ancestral land, rather than acquired. {Marshall, 34.7, Armour, 23.) Van Langenlerg for plaintiff, "respondent, refer- red to Marshall, 338. Cur. adv. vult, Claeence, a. C. J-— I have had the advantage of reading the jugments prepared by my brothers, and I agree in the view taken by them. There seems to be no doubt but that if this property is to be considered as the " acquired" property of Kuda Heneya, it devolved on his death, intestate and improles, upon his mother. It appears that Gbbnieb, J. — Two questions were raised on this appeal — (i) whether the portion of land in dispute between the parties was the paraveni or the acquired property of Euda Heneya, and (2) whether Punchy Ridy, Kuda Heneya's mother, was his sole heiress-at-law. Mr. Browne, for the appellant, contended that the land was paraveni and not acquired, and in support of his contention cited a passage from Armour, p. 23, as to the meaning of the term Lat himi, or the right of acquest under the Kandyan Law, But that passage contains no definition of the right, but mere- 252 KANDTAN LAW 01 MARKIAGE. ]y gives a few illustrations of the manner in which it may be acquired. There is, however, a legal defini- tion of Lat himi in Chap. 6, section i, of Aimour*, to the following effect: — " This right, viz., Lat himi or right of acquest to property is acquired by gift or bequest, by purchase, by prescription, or otherwise." Nowr, in the present case, Kuda Heneya's title to the land was founded on a deed given him by his father, and whether that deed be regarded as con- taining a gift or a bequest, the property should be regarded as Kuda Heneya's acquired and not para- veni property. The question as to the mother's right as sole heiress to her son Kuda Heneya, who died intestate and without issue, leaving two brothers and one sister, was not contested by Mr. Browne, except on the footing that the l^nd was paraveni property. Mr. Van Langenberg, on the other hand, contended that whether the land was paraveni or acquired property, the mother was, all the same, entitled to suecet-d as sole heiress. It is unnecessary for me to express any opinion on this point, as it does not fairly arise for adjudication in this case. The land being, as above shown, acquired property, and in no sense whatever paraveni (Kuda Heneya's father himself having pur- chased it in 1853), the mother is entitled to succeed. (See Armour f p. 88; Sawers p. 8; Austin p. 13J.) No question was raised in the argument before us as to the nature and effect of the right acquired by the mother as heiress, whether it was a permanent or merely a life interest; and as the petition of appeal is also silent on this point, I am not disposed to inter- fere with the judgment as it stands.— SMp. Court' Oir. Vol. V. p. 46. Present: — DiAS, A. C. J., and Lawrie, J. {February 3 and 28, 1888,) Kegalla D. C, No. 6:00. Kandyan Law — Inheritance — Intestate — Mother of Kandyan child — Heir at Law. By Kandyan Law the mother succeeds as heir at law to the whole of the moveable and immoveable property of her child who has survived its father— * Perera's Edition. t Perera's Edition, PROM THE SUPREME COUET CIRCTJLA.E. 233 leaving no full brother or sister surviving — and died intestate. The plaintiff claimed certain undivided shares in lands virhich he had purchased frona the widow of one Yahapathanai and his sister, the first defendant, had possessed these lands un3ividedly, that Yahapat- hami had died intestate leaving children to whom his share in the lands in question had descended, that these children had all died intestate, and that their share in tlie property in question had devolved on their mother (the plaintiff's vendor); the plaintiff complained that he had been unlawfully deprived by the first defendant of the shares of the land pur- chased by him, and prayed that he might be declared entitled to and quieted in possession of the same, and that the first defendant be ejected therefrom. The other defendants were joined in the action as being entitled to small shares in certain of the lands claim- ed. The first defendant answered denying that Yahapathami had left any issue surviving him, or that the plaintiff's vendor was entitled by inheirtance to any share of the lands in dispute. At the trial the District Judge held it establish- ed, that Yahapathami had died intestate leaving one child surviving him, that that child died leaving no issue, and that the child's mother, the plaintiff's vendor, succeeded as heir to the whole of the child's property, and had full title to convey to the plaintiff the shares of the several lands claimed. The District Judge was of opinion, however, that the plaintiff's suit was a suit in ejectment, and that as the lands were held undividedly with the defendants, the action as instituted "did not lie, and he absolved the defend- ant from the instance with costs. From this judgment the plaintiff appealed. Dornhorst for the plaintiff and appellant. Alwis for the ist defendant and respondent. Cur. adv. vult. On February 28. h the following judgments were delivered: — Lawrie, J. — The District Judge was right in holding that, by Kandyan Law, the plaintifif's vendor was the heir of her child, who died without issue, and without leaving brothers and sisters. 234 KANDYAN LAW OF MAEIllAGE. The Counsel for the respondent pressed on us that the passage in Sawers' Dig;, page 8, repeated in Mirshal', page 33&, paragraph 79, shewed that a mother has only a qualified right of life-rent in her decfeased child's property, but 1 think thatj in this pas- sage; Si*ers is dealing wlih the case ot a mother's rights When her deceased child had fulK brothers and sisters'. The extent of a mother's rights is clearly stated in the Niti Nigandua, a Sinhalese treatise on Karidjan Liw, compiled before Sir Charles Marshall wrote, but which was not printed until a translation by Armour appeared in the "Ceylon Miscell.iny," in 184.C, under the tiile of "A Grammar of Katsdyan Law"; this, and the la'er edition by Perera, are leading authorities in questions of Kandyan Liw. These lay down that the mother is sole heiress to her child, who had survived his or her father, and died wi hout issue, and left neither full brother nor full sister; but if the deceased child left a full brother or sister, that brother or sister will be entitled to deceased's share of his or her paternal paraveny land in preference to the mother. Nili.-Nig. pp. i5, inf, 113; Armour's Gram. pp. 16, 130; Pereia's Armour, page 85. This is supported by decisions of the Judicial Commissioner of the Kandyan Di-itricts, under da'e i6th August 1822, 7th September i[2 ; 3rd October 182 ; and by the Kandy District Court cases Nos. 1471, 6938, November 15; t3iio, 170/8, and 2199.. The last is reported in Austin, page 133. This is the Jud','menf in the Judicial Com- missioner's Court, on 7th September 1824. "The Chiefs, after due deliberation, give it as their unani- mous and unqualified opinion, that a mother is the heir of her only fatherless child dying without issue ; however the property the child dies actually possessed of may have beeii acquired, whether it shall have been the paraveny property of the child's father, or accrued to the child in any other way, and that to the exclusion of the child's, father's family. Further, that this case has been decided upon true principles of Kandyan law as applicable to the same." The District Judge, while upholding the plain- tiff's title to one-half of the land, absolved the defendants from the instance, because the plain- t'ROM THE SUPKEIJE COUM ClRCtTLAR. 235 tiff prayed for a decree in ejectment. I do not think that the libel can fairly be read as praying that; tlie defendants be ejected from ihe whole land, but it must be admitted that a decree i'l ejectment is un- suitable in cases where the defendants are equally with ihe plaintiii' entitled to posses*, and to share in the produce. Where one of several co-owners has been pre- vented from taking his share by one or more of the others, he is entitled to a declaration of bis right, and to a decree ordering him to be put in possession of his share. DiAs, A. C. J.— This is a pure question of Kandyan law, and my brother Lawrie has so fully gone into the matter, that I need only say that I concur in his opinion. Set aside ; and jitdgmenl entered for the plaintiff quieting him in possession of the shares of the lands claimed. — Sup. Court, Cvr. Voh viii. js. 135. Pr«en i:—BuENSU)E, C. ]., Clarence and Dias, ]], (August 23 and October 11, i%Zg.) Kegalla, D. C. No. 5994. Kandyan Law — Inheritance — Father married in Binna inheriting child's property. The daughter of Binna-married Kandyan parents died, leaving her surviving, father, her mother's mother, and her mother's uterine half-sister. Held, that the lands of the deceased, inherited from her mother, devolved on her maternal relatives in preference to her father. Plaintiff, as sole heir of his daughter, claimed a declaration of title to undivided shares of several lands as against defendants. The first defendant was the mother of plaintiff's late wife, the second was her half-sister, and the other four defendants were owners of the remaining shares in the lands. The District Judge non-suited plaintiff, holding that the first and second defendants inherited in preference to plaintiff. The plaintiflf appealed. Dornhorst for the appellant. Browne for the defendants. Cur: adv: vult: 236 KANDYAV lAW OF 1IA.EEIAGE. On October nth the following Judgments were delivered : — BuRNsiBB, 0,3. — I have had the benefit of read- ing my learned brothers' Judgments before consulting the authorities upon the very uncertain question on which this appeal rests. As a fact, I think we must conclude that the property was the inherited property of Dingiri Amma, through her mother, through whom the plaintiff claims as her father. I think the authorities support either proposition, that the Biana-married father succeeds to the property in default of direct issue, or that the collaterals in the direct line do. I am inclined to uphold the claim of collaterals in the direct line of inheritance from the mother, and the District Judge's judgment is in my opinion right, and should be affirmed. Claeekcb, J.— The District Judge, in his judg- ment, has set out very clearly the facts in this case, and the issue between the parties involves a difficult point of Kandyan Inheritance Law. The facts are these. Muda i Harai Korala owned the land in question. It was his paraveni property. He married a widow (first delendanf) who had a child (second defendant) by her first hus. band. The issue of the marriage of the Korala and first defendant was one daughter, Dingiri Mahat- maya. In 1877 plaintiff, then a peon in the Korala's house, was married in Binna 'o Dingiri Mahatraaya. In 1863 the Korala had made by deed a disposition of his landed property, giving an undivided half-share to Dingiri Mahatmeya, with the reversion to another one-fourth on the death of her mother, first defend- ant. Dingiri Mahatmeya, after her Binna marriage with plaintiff, gave birth to a daughter, whose birth she survived for a few days only. Plaintiff brought •op the daughter and succeeded, in spite of the oppo" sitioa of the defendants, in retaining possession, as guardian of his infant daughter, of her share of the Korala's lands. The plaintiff's infant daughter after- wards died while still a very young girl, and the defendants at once assumed possession of her sliare of the land. When the Korala died, we do not know. mat TEB axmsjcK ootrsi ot&ccLiB. ' T^e queedon'is, '^^b&, pJ^^.M^'lSj^'l^ l|Hrfa9t»»tb 1 aarMvWjijHj , t;b^ ., Q|ajiiii«i, jJwdg^ 411^. ..for tfee"ii(«ip9S^iof jtsis-qpes^lpil,, we,, ini;i5t f regard; th© Wnd, as p^efTty qamtpg to hpx by iaberitaDCe* It is clearliy<|n}i«rite4, property;^ aQ4 oQt acquired. Slia icthfirited it {ri)m her mother, who fa^d obtained it by h^r. father's gift. Id my, opiQipc . it it ancestral p^o- pertj deriired from ber pat-.eraal griind*father, the. Ko. rala> iwlchiDtbe puivie^ of K-aDiiy^n Law. I^ppp the p<;>ipt, ,tkus, raised. , Marshall's dig.^^t and Perera's Armour leave room for some doubts- Pages 7poift^;, £ A|t,p^ge,^i ojBcuretfeispa^^ge'VAgaip, inasmuch as.^hq prqper^; of . the|7mother ,js dp ,ber death, inhefjfcjd , by her, chijd pr rchildren, if. sne 4ieSr4^YJag peif hpsb^pdk j^e ipajt pa beh^u oif the children, take care ofjhe;la.aqs,,,^c, sji^ iph^ritec), but he ,;^nnot i,;;ppropriate or alienate TjiDy-Lporiioa of tbenj,fV ;, ,,,„/,' .i=this^gajp,^eayfs tli^rpia^e^.dbl^Jiijf'ul, ,, Admit- tedly,! the child!^ chj)fi''^fl ?»rpi^4,Jli9)te tfl;'i]ie exdasjyn of the ^chU4'P;,'f?^?r»'*n«i,i^s,.pas5ag9,' seems to^f^^^^ only to the custody of the landls during the c^ilii's 233 S^STAT IiAW 0? KABSIAGB. minority) and does not say what is to happen if the child should itself die improles. At page lis of the same authority it is laid down that when a binna-tnarried womaa dies leaving her husband and a diga-married sister's child, the niece, and not the husband, will inherit^ but that the husband, if he does not at his wife's death leave the premises (i.e., the binna-marriage house) may remain in possession of the lands during his life, but may not alienate. This plaintifif admittejdiy left immediately on his wife's death the house in which he had lived with her. This last passage in the Niti Niganduwa seems to favour the conclusion that the binna husband can have no more than a right to remain in possession during his life, provided he continues in the binna- marriage house, which the plaintiff did not. The general principal of Kandj/an Law no doubt is, as Sir J. t'hear pointed out in the case reported in I.S.C.C. i, that when the direct line of descent is broken the ancestral land goes over to the nest near- est heir emanating from the source whence the land came. Here the land came immediately from the child's mother (wife of plaintiff), but in its origin it was ancestral property of her father, and the defendants are merely the widow and Step-daughter of the latter. I have experienced very great difficulty in arriv- ing at any Judgment in this case, but in the result I feel unable to dissent from the judgment in the Court below, assented to as it is by my brother' Dias. DiAS, J.— The property iq dispute belonged to 'one Dingiri Amma deceased, who was the daughter of the plaintiff by his binna-married wife. Dingiri 'Amma left no children, nor any brothers and sisters,, full or uterine. The original owner of 'the property was one Mudalihamy Korala, who married the first defendant. The Second defendant is a daughter of the first by a previbus marriage. The Korala, in his. life time, made a . distri' bution of his propertj, and by a deed of May 1$, "1863, he gave one-fourth of his estate to his' own daughter, who subsequently married the plaintiff in binna and had a daughter, Dingiri Amma ; and it toon TEX sup&:e]Cb couai; cibctilab. 239 is this daughter's property which the plaintiff claims as her father. With regard to the natjiro of the property — that is, whether acqait^d«r inherited— I ftgree with the District Jiidge that it is the. inherited t property of Dingiri Aqiiiia. ''J^ough the property wa s acquired by her mother under the Kerala's deed of 1863^ she herself inherited it from her iuotherj and the question is whether her father, the plaintiff, is her heir to the property. It is admitted that her parents were married in biqna, and that she died childless and left neither brothers nor sisters. , , The District Judge di-allowed the plaintifi's claim, and I think his opinion is borne out by the authorities. (See Marshall, p 944 pai-agraph ' 97). . ATcaoar'sopmion fPerera's Armour pp. y6, yyj, seems to conflict with the law as laid down in Marshall, , but I think Marshall's opinion is entitled to prefer- ,ence, as he is the best writer on Kandyan law, and his opinion is supported by another writer (See Sawers p 14,) I ana not aware of any ca.'-e in which this question of Kandyan Law was authoritatively decided, but in the absence of precedents I think we _may safely adopt Sir Charles Marshall's view of the law, and affirm this judgment. — /Sm*. Court Cir. Vol. IX. p. 34. 1 ' Prffs«n<:— BuBNsiDE, C.J., Clabence and Dias, JJ. {^November 15 and December 6, 1889.) Kindy, D. C.'No. 1724. Kandyan Law— Succession — children 'of two beds—per capita or per sterpes. By Kandyan Law, where a person dies intestate leaving issue by two or more beds, his estate is divided among his children per sterp^s, and not . per capita. So held by Burnsidb, O.J., and Dias, J. (dissen- tienle Olajibnce, J.) following D. 0. Badulla No. U512. It Lorem 27. Plaintiff, as the only child of one Hbretella by the second bed, sought a declaration of his title to one-half of Horetella's lands, as against defendants, some of horetella's, children by the first bed, who contended that, the, lands should be divided among the children of both beds pgr capita. The Acting 240 KABOITAS UW Ot HABBJAfiB. ;■'-' ■ ■' . ■ ■ '■••"■■ ■■ ';■■>': '^q <":;?'.-;■ tji.L ' i^i District J adge decided that theVdivi$ioO; shoold p^ per stirpeif at«l gaVe plaintiffiddginenti ! - The defendants api^aHed; ' ' - i ' 1 ' i^jl The appeal iitras fir^t ^i^gti^ 6b Obt6b>e»w >4th ^fore Clai^j^cb and DiASj Jj. By diriecticASt bf ^Mr Loi'dsfaipa it was noW re-argued before tbie iMI Court. . '<•■■••. ■j/l; Coqie, for the defendant)), cited Marshall's j^udgments, P33Si Armour's Kandyan Ldw (Perei'a*s edit'ioo), pp. ^91, 70, 7 2. -'■ "■ - -j Dwnhin'stf'iatXhe plaintiff/ cited D. G., Bkdalla, No, 14,513, % IjOteat %'] . , ' Cur.' adv. vult, '' • On December 6tb the followicfg' judgmeuts were delivered :— ' ' <' .' 1 -r BuRNSjDE, C.J.— j£ my decision in this caBe Vereptin}ae,iiapre8si9,nis,i I do not Hesitate t& ^aiy th^t, following the reasgn and fairness of the mat^^f, I would be prepared to hold that the chil'dren ' of the first and second marriages would take per capita, and not pet sterpes ; but^he point ha§ been already debi^- edby^he solemn decisiop of this Court in ihe re|^rt- ed case in 2 Lorenz. p. 27 aiid also, as was 'si^\to di$tnrh a sq^mn decision of thepour^. ,lt is better that there should be,a fixed rule rather than one Varied 'ifrbtati^6t^'dn(i:e,'^s opi« nions may disagree ds to what may bV^ibasonable or lair. lUpoilitheisecpnd'tquestioD, jl c^U'pnly say that th^'JSBuebf. 'legitimacy is not one that we are now called onto deal with, if' w i :: , I must affirm the District Judge's judgment, with^Co^tSf/ ' ' ', \ "> '' .-'':•' ■>';! '<.:.• c-' Clajiencii, J.— The'^bint for decision ppnn;ttieir appeal ifj-whethqr the children bJEHo^ktellrf, 'fr^j'^er two busbandEr. Inh'ei'it'h^r ackiilii'^ pivperty id Ishares computed p^r c3pfta'dr'(ie3^ st^^t. tiy"h6p fi^st hus- biand, Htoraielli had |ix childrbhi (fh^'Cttre^ defendants and thrfee biherVln^if ijai'iie!^' io thils ddttoK. Plaintii! is the bnlVtfaiia of mr ieceka ^W^agsiJ ' ' '"n.v> DeKtrdantV'^tidi^'^po^^d'^to' argue AipbnJthe Appeal a further point embodied in the petition of ap- FROM IHE SUPREME COXJET CIECULA.B. 241 peal, but not raised by defendants' pleadings, viz, that plaintiff is an illegitimate child of Horatella, and as such does not inherit anything. This contention ap- pears to have been embodied in the petition of appeal in consequence of an admission noted as made at the trial by plaintiff's curator ad litem as; to Horetalla's marriage with him not having been registered. "We declined, however, to allow that point to be argued, defendants not having raised, the point by their pleadings. Upon the question which we have to decide'^ viz, whether the children of the two beds inherit their common parent's property per capita or per stripes, authorities are conflicting. In Fererd's Artnour, at p, 6g, it is said that where a father left a son and infant daughter by one wife and a son by a second wife, his lands devolved on all three child i en, in equal shares, i.e. per capita. The instances recorded in the Niti Nighanduwa, at pp. 78 and 79, are inconsistent with per stripes inheritance, and, when not complicat- ed by matters of diga marriage and other incidents, are distinctly instances in which the children of, the two beds inherited per capita. In Sawers' compila- tion the quesi ion is noted as a disputed one. The question is treated at p. 333 of Sir 0. Marshall's work, in a section which, after reciting the conflict of opinion among the Kandyan chiefs, concludes as follows :.— " This rule of division" {per capita rather than p£r stripes) " certainly seems the most conson. '.'ant to natural justice, and has been. acted on by; the. " Supreme Court." The learned. Chief Justice, then proceeds to cite a Ratiiapura Case, in which the inte.s.. tate had left two children of one bed and one of an- other ted, and the Supreme Court, reversing a deci.- sion of the court below, by which the property hajd been adjudged in halves, one.-half to the children of one bed and one.half to the children of the other bed, " decided in favour of the equal division ' among all '' three children." In that case the Supreme Court observed that "as far as this court had been enabled "to ascertain the right of authority, fouiided both in " opinioaand precedent, is in favour of division among " all the children of different marriages equally; that " this practice would certainly seem to be more con- " sonant with the principles of equitable distribution," 342 KAHDYAN LA'W OT MAEBIiGG. and that the injustice of the other mode of distri'^u - tion became the stronger in proportion as the children of one bed outnumbered those of the other. As against this strong authority, which I should have supposed conclusive, we have, however, a late case in i8j7 reported in a Lorenx 27, in which the Supreme Court adopted the per j ^ 3— This was a suit in which (he plaintiff sought Widows and wM„w« ;covera two-thirds share of certain lands from ''"'°''' *°<^ ^^'^ower., to recover a 2i4 KANDYAN LAW OP MAERIAGE. the defendant. It was admitted that the origina,! owner of the lands in question, was Siatu arachchi, and that he died leaving a widow, Punclii Menika and no issue him surviving. It was alleged by plain- tiffs, that the widow, on the death of her husband Siatu, entered into, and continued in, possession of the land till her death in 1876, when the defendant got sole possession of it. The plaintiffs now claimed two-thirds of the lands as the children of Siatu's cousins, Ram Menika and Punchirala, (children of Siatu's mother's sister) conceding to the defendant her right to the remaining one-third as full sister of Earn Menika and Punchirala. Defendant denied that Ram Menika and Pun- chirala were Siatu's cousins and claimed the lands in their entirety for herself, as the sister of Siatu. She alleged that since Siatu's death, she had alwajs been in possession, holding the lands subject to the life interest of Siatu's widow* The District Judge dismissed plaintiff's case. On appeal, VanLangenberg appeared for appel- lant, and Dharmaratne for respondent. Cur. adv, vult. On the 1 8th February, the judgment of the Court was delivered by Pheak, C. J., as follows: The ground of right upon which the plaintiffs claim the lands in suit is that they are the deceased last proprietor Siatu's maternal aunt's grand children, and that he died intestate leaving no nearer blood relations. The evidence in the record seems to be sufficient to establish this relationship very satisfac- torily. There is also evidence from which it may be inferred that he left no relations on the father's side, unless the defendant's peculiar case were made out. But it is admitted by both parties that he left a wi- dow, Punchi Menika, who in fact took the property at his death, and enjoyed exclusive possession of it for some fourteen or fifteen years. It seems to have been considered in the Court below that the widow's interest was only a life estate, operating, so far as concerns the present case, merely to postpone the date at which the intestate's heirs are to be looked for. But it appears to us this is not so. On the state of the family, as the plaintiffs imperfectly re- fBOM THB SUFUBUE COURT CIBCULAR, 245 present it. at Siatu's death, (and the burden of proof lies upon them), it appears to us that Punch! Menika, hii widow, was his heir and took all his property absolutely. In Afmour p. 22 {Perera's Edition), it is said that, on a certain condition there mentioned, the wi- dow of the deceassd is entitled to his entire estate including his paraveni or ancestral lands to the ex- clusion of his father's maternal uncle's son, as well as of more distant relations. Now, in regard to de^ gree, the plaintiffs, who are grand-children of Siatu's maternal aunt, are precisely at the same distance from Siatu, as is the father's cousin of Armour from his prepositus, i. e , four steps. But in the case of one of the plaintiffs, three of these steps, and, in the case of the other, two of them, are through females, while in the example given by Armour, only one of the four was through a female. It cannoti we think, be doubted that the plaintiffs come under Armour's rule of exclusion, provided the condition is fulfilled, which is thus expressed by A rmour, that " the said proprie- tor had received all assistance from his wife and her family until his death, and had been neglected and disregarded by the kinsmen who is to be excluded." In the present case, it is plain that Siatu's widow lived with him till his death, when she succeeded to the property in question, and enjoyed it for many years ; and it does not appear that the parents of the plaintiffs, their grand-mother, had any thing to do with taking care of him. As the case stands, it seems to as that we ought to hold that Siatu's widow took an absolute interest in his entire estate as against the plaintiffs. As regards his acquired property, there can be no doubt that she did so, because according to Armour in p. 23* the widow would take this pro- perty absolutely to the exclusion of a paternal aunt's children, and the plaintiffs cannot rank themselves higher than maternal aunt's grand'children. In this view, inasmuch as the plaintiffs do not pretend to be heirs of the widow, their suit fas and has been rightly dismissed. — Sup. Court Cir, Vol, II, p 44, 246 K4BDYAN SAW OF MARHIAOB. Present: — PijBAK, C. J., Stewart, J.,-and Dias, J. (^tk February, 1879.) Kandy, D. C. No. 75216. Kandyan,\ Law-^Life interest to wi4ow~*0oindition subsequent— alienalioTt — Forfdture fm . A KaiJiAyffm husband by dped gave knd to his wife Dingiri Amma, for her sole and exclusive posaesBion and enjoyment for alf the days of her life, in any manner she pleased, subject to the proviso, thM the donee shoilld duly make over the same " to none other but to my begotten five chil- dren born of Dingiri Amma." ^ HeZfJ, that the ;widO:W b.ad an alienable . life iatene^st in the land, and that thp proviso referied to . the Buqpession thereto ^t the legit^rna^te termination of her life interest. Pej- Pheae,' (J. J.— Regard being had to the un- festricted power which a Kandyan proprietor now eHjoysof disposing of his property as he likes by will, the i^ue, whether or not the property dealt wilfh by a deed of gift mter vivos, constitutes the entirety of thje donor's property, or whether or not the deed contains a cla;use of disherison,, seems to afford a very narroyv Bipd teohnipal ground for de- feating a doiior's intention, and such as ought not to be upheld for that purpose unless most clearly made out. Armour pp. 19 and 21. {Perera's, Edi) cited. This was a suit of ejectment. The plaintiff as mortgagee of certain land in the Kandyan district brougbta suit to enforce the mort- gage obligation, and having obtained judgment he in execution of his decree sold the land by public auction, and himself became the purchaser. The plantifi's mortgagor was a Kandyan widow who had obtained the land by gift from, her late hus- - band shorty before his death. Shei and the children lived' elsewhere, but she held possesssion of this land for several •feat's, until some time before the execu- tion sale, when one or more of the children got possession of it; and vvhen the plaintiff after the exec\itiqn ^aSe endeayoiired to take possessipQ of the subject of his purchase he was opposed by all the children, and ou this ground instituted the present suit against them. The District Court was of opinion that the FROM THE StPEEME COTJRI CHICULAE. 247 mortgage made by the widow was under a proviso or condition in her- deed of gift void against the children, and for that reason dismissed the plaifltifi's suit. On appeal the decree of the District Court was reversed. The appeal was first heard by the Court, constituted of Ste;wart, J., and ClabEhce, J-, on the 13th December, 1878, but before iu,dgment could be delivered Mr.JnsxicE Clarbngb, had left the Court on furlough. It was afterwards heard by the full Court, constituted of Phbar, C. J., Stewart, J., and Dias, J., on the 7th February, and on tbe 14th February, the judgment of the Court was delivered by PflEfR, C. J., as follows: — In this suit, which is brought to recover certain specified land from the. defendants, it is conceded that the plaintiff on the 7th May, 1877, at a sale then held by the Fiscal, in execution of a decree which the present plaintiff had obtained, against one Dingiri Menika, purchased such interest in the, land under dispute as Dingiri Menik* was at that time in any way entitled to. Dingiri Menika is the widow, and the, defen- dants are the children by her, of one Seerala, who himself died some nine or ten years before suit . The defendants admit that the land m, questipfi was the property of their father, that he, shdrtly before he died, by an instrument of conveyance, wtiiqh ?s in evidence, arid is dat;e|di the 8th January, 1867, granted the same to his wife, Dingiri, and further that they are now in exqlusive possession of tli^ land. It is not objectejl th^t the plaintiff has never obtained any sort of possession from his vendor, and that, consequently, he cannot sue in ejectment on his own right only. Hot is it contended by the defendants that the dped of January, 1867, was such in character that it could not, under K^^ndyan law, on the death of theii" father operate to deprivQ. tjbem of their right, as his heirs, to succeed to his property. They take up the position that the deed was effectual to give to Dingiri an interest in tjie land, and to continue it to her until 1874 — several *years after the grantor's death, — but that she then forfeited that interest by maltiog the alienation by 248 KANDTAN LAW OF MAEEIAGB. way of mortgage to the plaintiff, which is the foundatioa of the plaintiff's title. Manife!>tly this position is untenable; for the deed in its terms purports to pass a sole and exclusive right of possession and enjoyment of the property, which is the subject of it, to Dingiri for all the days of her life^ in any manner she pleases; and to such a right of property as this, the law recognizes the right of alieoation to be incident, unless it be expressly prohibited by the instrument of convey- ance, and unless the grantee's interest be made to terminate on its occurrence. The deed, no doubt, goes on to say that the grantee shall " duly make over the same to none other but to my begotten five children born of Dingiri Ammaj" but this plainly refers to the succession at the legitimate termination of Dingiri's life interest. To construe it otherwise would be to make it a condition subsequent, imposed upon the proprietary interest conveyed by the deed without any accompanying provision for its enforce- ment, and so a condition void of effect. And even had it been objected that the deed amounted to a gift of the donor's property without any clause in it, disinheriting the donor's heirs, and so, in the absence of a clause of disherison, ceased to have operation against them beyond the donor's life, there is nothing on the face of the deed itself to shew that the property dealt with by it constituted all the property of the donor. And when we turn to the evidence in the case, we find that although Dingiri, who was herself adduced as a witness on behalf of the defendants, deposed to the land in ques- tion being jointly acquired by herself and her former husband during their marriage, and therefore proved it to be such as she would independently of her husband's grant have had a life interest in, had she not married a second time (Armour p. 1 8,) yet she refrains from saying that her husband had no other property than this. And no other witness speaks to this point at all. There thus appears ia no way, any reason why the deed of January, t86'j, should not have the full force and effect, wich it purports to exert, and to be directed to. It may, perhaps, be not out of place here to »ROU !rB£ StTFBE^E COUBI CIBCUlAB. 240 femarki that had the deceased Seerala exhibited the like intent to.give Dingiria life interest in this land by the tneans dF a will> instead of hy that of a deed tjf gift made shortly befbre his death; thefe could theta have been no question raised as to whether thie property dealt with constituted all Seerala's property or not. That is, had be used the apt means of a will instead of a deed inter vivos, he could Certainly now~a-days have done what the deed professed to do, even ff he possessed no other property than that which the instrument attempted to passt fi.ega*-dedj then, as a ground of defence, adverse to the donor's.intentiop, the issue, whether or not the property in dispute constituted the entirety of Seerala's property, or whether or not the deed con- tains a clause of disbersion seems to be very narrow and technical; and therefore such as ought not to be upheld, unless most clearly made out> And, indeed, in reference to the widow, the same remark would have been applicable even before the Ordinance of Frauds and Pe-juriesj because it would appear from a passage in the 2_5th section of Armour (p. 21, Perera's Ed.) that under Kandyan law alone the husband could bequeath the whole of bis property to his wife for life, with a power at her death, lo appoint the same among the cbiidren> and further in the same section (p. 19), that the only effect of the absence of a clause of disherison from a deed of absolute bequest of a part of the property to the wife wouldbe to cut down the bequest to a gift for life. It seems to us, therefore, that the plaintiff ought to succeed in this suit. In our view, the decree appealed from ought to be set aside, and in lieu thereof, it ought to be decreed that the plaintiff do recover from the defendants possession of the land described in the libel, with costs of suit. — Sup: Court Cir. Yol.II.p. ja. 250 KAHDYAN LAW OP MAEEIAGB. Present .•— Cayley, C. J., and Dias, J. (;. TROM THE ADMINISTRATION HEPOETS. 259 (a) T/iera—A priest who has been ordained ten years or mop . (i) Alajjhima—ODe who has been a priest five years and uncltr ten. (c) Naiaka — One who is less than five years a priest, and is bound to remain under the supervision of his tpirimal teacher. The Samanera priests admit of none of these classifications — being only novices who are studying for the upasampadit order. Section 2. (Succession to Temple property how regulated.) 1. Sisyanu Siaya paramparawa. — 2 Siwuru-paramparawa, 1, Sisyanu Sisya paramparawa (Pupillary succession.) 2. Siwuru-parampar iwa (Hereditary succession.) ' The former, strictly speaking, is the succession hy a priest to temple property by right of his tutor, as the eldest and the most qualified pupil ; whereas the latter is only by right of having been robed and in- tended for succession to the property by the living in- cumbent, and such are very often near relatives of the incumbent priest. The following is the definition of the above terms by experts whose evidence was taken in the leading Kurunegala. case No. 366: — I. " Sisya-paramparawa. — The lands, Vihara, Sisyanu sisya param- " &c, belonging to Bhikshu (or upasampada priests) pars^wa, " will, although he had (so many as) fivepupils, devolve " solely on that pupil to whom an absolute gift was " made thereof, and that pupil alone of the said donor " will afterwards succeed ttereto, who received a regu- " largift of the same from him.* The uninterrupted " succession of pupils in this manner is termed Sisya- " paramparawa. '• Should the priest, tlie original proprietor, de- " clare his bequest common to all his five pupils, they^ " will all become entitled thereto, and one of them This practice is contrary to Buddhist Law.— Bn, 260 KANDTAN LAW OP PEIESTS AND TEMPLES. Siwuru paramparawa. " being elected to tlie superiority, the other four may " participate iu the benefits ; the said superior being " dead, the next in rank will succeed to the superiori- " tj, and along with the rest (of the survivors) will " enjoy the benefits. " This order having subsisted, the last survivor '' will enjoy the benefit, and have the power to make a, " gift in favour of any other person. But the origi- " nal proprietor-priest may transfer his rights to any " other person he may choose, passing by his own " pupils. In the event of the original, proprietor " dying intestate, the priests who happened to be as- " sembled (at his death) became entitled in common. " Things which belonged equally to two priests devolve " wholly to the survivor. 2. " Siwuru-paramparawa. — The priest who was " the original proprietor, ordaining a relation to the " priesthood, and bestowing his property on him, and " the latter in like manner ordaining a relation, and " making a gift in his favour j the ordaining of rela- " tions for the succession in this manner is termed " Siwuru-paramparawa. However, the practice has " also subsistisd in this Island, of a priest who had " himself failed to appoint a relation to the succession, " authorising another to ordain a relation to the " priesthood, and to deliver up the property to him."* Section 3. Buddhist not posse except in temple. (From Marshall's Judgments.) I. Buddhist priest cannot possess property except in trust for a temple. — 2. DistiDction between Sisya and Siwuru paramparawa. priest can- I. It seems to be one of the tenets of the Budd- is property, ]iiat religion that a man, on becoming a Priest, resigns trust for a ^^l worldly Wealth, and no longer possesses the right of power of holding propetty, whether moveable or immoveable, except in trust for his temple, if he be in charge of one. Vide supra ti'tles " 'Kandy," par. 7 7 aind "Land" paT. 1 4. 5*^3 entire abnegation of earthly * See ^' Administration Reporls" ot Sef. Ten. 'Com- of 1^71, paga 880.~Bj). rROM Marshall's judgments. 261 possessions, however, seems not less difficult to be put in practice in Ceylon than elsewhere. And according- ly the Courts furnish numerous instances of Piiests laying claitns to property in their own right, or at lefist with a yery slender colouring of any title, on the part of temples, to veil their own claims. A priest brought an action for two paddy grounds, as having been dedicated to Ellewelle Vihare by Sellegodde Unnanse, before his death. The de- fendant denied that Sellegodde had any right to dispose of the fi-ldsj alleging that they were his, the defendent's parveny property; that he had permitted Sellegodde to enjoy the profits of them in considera- tion of medipal aid, and during the defendant's pleasure, but no further; that the defendant had always performed the Bajakariya for them, which would not have been the case, if he had transferred them absolutely to Sellegodde [as to which see titles "Brandy," paragraph 3, and 51 and "Land" par. ij] and, moreoi er, that the alleged dedication by Sellegod- de would have been void, because prohibited by Proclamation of 8th September, i&g, . The plaintiff, by his replication, undertook to prove that the lands were the acti;'al property of Sellegodde TJnnanse, and bad been transferred to him by the defendant's father and another person by deeds ; he accounted for the defendant's performance of (he Eajakariya by the ignorance of Sellegodde, in not getting the fields registered for exemption ,: and with respect to the Proclamation, he contended that the prohibition, as to dedication to temples, only referred to lands of laymen, and did not extend to those of Priests. It appeared from the evidence that Sellegodde Unnanse had re- ceived the produce of the fields for 35 or 40 years ; b.utthat they perforpned partof iheiielendant'spangua, and that the cultivation had taken place b^ permission of the defendant, who was considered the parveny owner. The Court of the Judicial Agent was of opinion that the possessi )n of Sellegodde Unnanse had been fully proved, so as to give him a title by pres- cription; and consequently that he had a right to transfer the land to whomsoever he plea.sed. , Judg- inent was given for the plaintiff, which was affirmed J>y the Court of the Judicial Commissioner. On appeal to the Governor, which devolved on the S, C, 262 KANDTAN LAW OP. PRIESTS AND TEMPLES. by operation of the new Charter, this decree was reversed on the following grounds : — ^^Sevefal objec- tions present themselves to the validity of this decisii n^ First, no proof whatever was offered of the execution of the Deed of Transfer from Sellegodde Unnaose to the plaintiff. This omission may, however, have proceeded on the supposition that the defendant, by his answer, did not intend to dispute the execution of that instrument, bnt only the right of Sellegodde to make such a transfer [see title " Pleadings,"^ par. 14 to this pointr] But the difficulty, which the Court feels in a£Srming the plaintiS's claim, proceeds upon much wider grounds^ For, secondly,- the possession of Sellegodde appears,^ from the evidence of nearly all the witnesses, to have been but a qualified one. The defendant continued to perform the Bajakariya, and his permission, it seems, was considered necessary for the cultivation of the land. ThiSj therefore, was not such a possession as would have given Sellegodde Unnanse a prescriptive right, even if he had been a person who could have availed himself of such pres- cription.' [see title "Prescription,'' par. 8}, but thirdly, even if the defendant or his father had parted with the absolute possession of the land, the Dnnanse would have been incapable, on account of his Priestr hoodt of possessing the land unless in trust for some temple. Now, it appears by one of the plaintiff's own witnesses that Sellegodde Unnanse had no Wihare. There was nothing, theref ore, to prevent the defendant from resuming possession of this land even in the life- time of Sellegodde Unnanse. Fourthly, still less had this Priest the slightest shadow of right to bequeath the land to atiy other person, whether Priest or Lay- man. The Court thinks it unnecessary to take any notice of the Proclamation of 18 19, though that would have furnished another objection to the transfer from Sellegodde Unnanse to the plaintiff. The distinction which the plaintiff endeavours to draw between the lands of Laymen and those of Priests [supposing that Priests could have any such possession of lands, as would authorise them to make a legal transfer of them to others], is not to be found in the Proclamation, No. 5980, Ratnapura, 3rd February, 1834. In the case mentioned under title "Administra- tion" p. 5, a Priest, seeking to obtain administration ITROM MabsBall's judgments. ^6^ to the estate of his predecessor, in forma pattperitj endeavou''ed to get rid of the objection arisiog out of (certain title deeds foi* land standing in his own name, by urging that the possessioti of any propertVj except in trust for a temple, was illegal $ and therefore that the det-ds should be considered as nullities. The S. Ci, however, was of opinion that the Priest could not be allowed thus to avail himself of the illegality of his own act, and to accept deeds one day in his own naiue, and to repudiate them the next as illegal^ according to the convenience of the moment. But the Court also considered, with reference to the necessity for all administrators to give security for the due execution of their ofiSce, that nothing could be more at variance with the spirit of that highly salutary provision, than to allow to a person to administer an estate^ who was avowedly a pauper, and for whom, therefore, espeGit> ally, if he could not legally possess property, no solvent person could reasonably be expscted to give security* No. a Matura, 9th December, 183 j,— il/a»* Judg.p, 649 § I. 3. 3. a. Soon after the establishment of the present Distinction between S. C, several cases came before it from the Kandyan Sisya and Sewurn pci' Courts, especially from that of the Seven Korles, which ramparawa. had excited considerable interest, and in the investiga- tion of which no pains bad been spared^ on the part of the Kandyan tribunals and authorities. Few of tfaesj cases, however, afford any materials for these notese having, for the most part, been decided on facts, rather than on questions of law, involving general principles. There is one case, however, to which it may be useful to refer npon the question of the right of succession to Wihares. Among the proceeilings will be found a diligent and patient discussion of the difference between the Sisya Paramparave, or the descent of by pupils and the Sitvoorqo Paramparaiva, or the ordain* 'ing and endowment by the original proprietor of one of his lay relations, who in his turn ordains another relation and so on. This is the leading distinction between the Sisya and the Siwooroo ; but the subject is treated at some length by the Priests and Chiefs who were consulted j the explanation given by the Priests of the Malwatte Wihare appearing to be con- sidered by the Kandyan authorities more correct than that of the Asgiri Priests. No. 366, seven Korles, 264 KA.NDYAN LAW OF PRIESTS AND TEMPLES. Eriminne Unnanse Sinabowe and Parakurabere Un- nanses, finally decided by the S. C. 2ist October, 1833, See also the case of Wewegedere Unnanse vs, Kitti- gaoime TTananse, Seven Korles. — Mar. Jvdg.p. 649, § 4- Section 4, (From Solomons' Manual.) 1. Possession of landed property by priests. — of Lands belonging to temples. — 3. Private property 2. priests.-^. Priests have the sa^e rights as laymen, Possession of landed i. According to the precepts of ths Buddhist property by priestm faith, a man by becoming a priest loses all right of inheritance to the property of his parents.* This rule, however, seems to have become a dead letter, for the right of priests to possess, inherit aod succeed to property has been acknowledged by our Courts of Law. "The situation of priests in Ceylon", says Hardy, " is at present very different to that which was intended at the commencement of their order by Gotama Buddhu. Professedly medicants and pos» sessing only a few articles that are of no intrinsic value, they are. in reality the wealthiest and most honoured class in the nation to which they belong/'f-^ Sol Man, p. 21, Lands belonging to a. The temples in Ceylon are possessed of eX'- temples. tensive tracts of land,'mostof them granted by ancient Kings and chiefs as offerings to Buddhu. ^ They are given out by the Incumbent for cultivation, on condi-; tion of receiving a share of the produce from the tenants. On the death of the Incumbent — if the temple is held in Sisyanu-sisya-paramparawa or pupillary succession— the property descends to his pupil, who thereupon assumes the entire control and * See Perera's Armofir p. 51. — Saw, Dig. p. 7-<- Morg. Big. p. 13. — Batnapura, No. 5980 Jud. Agt. t See Mar, Judg. p. 6i9.-^Hardy's Eastern Mon- acMsm p. 69. $ See Tennent Vol. 1 p. 363, 374, 4:0G.—>Larem 1% 'p. 148.— Mar. Judg'. p. 382. - FROM SOLOMONS' MAKUAIi. 265 management of it.* In the event of the priest having no pupil, it reverts to his tutor in preference to all others.f If the property belongs to tyfo priests jointly and one 4ies, it goes to the survivor. Where several own it jointly, the same rule is observed, and in such a case if all die, the property becomes " Sangiha," that is, devolves on the entire priesthood as a body. Utatil a priest resigns or is disrobed, he is considered to retain office and to be entitled to his share of paddy from the granary and to other dues, and the fact that )je is refractory or disobedient to the principal of the Wiha- ra is not a sufficient ground for withholding from him what he is entitled to.— rSol, Man, p. 2a. J 3. In respect to private ptoperty, the authorities Prirate property ef have prescribed different rules, By assuming the priesti. priestly office, as we have said before, a man loses all right jof inheriting his parents' prop2rty, but if he afterwards resigned the office at the request of his parents or brothers, his rights would be revived. § Should he throw off the robes at the request of his parents or brothers unanimously, he will be entitled to a share of the property, but not if he does so with" out any such request. If one brother without the other's consent induce him to give up the robe, thea such brother must provide out of his share for the Sewuralle ox ex-priest who can have no further right to the shares devolving on his brothers,|| If a man specially transfer a land to his son in the priesthood, such son may accept that land ; but the rest of the property will go to the other sons who are laymen. \i the father was also a priest and received assistance from his son during his last illness and until death, then the landed property would be divided equally between the sacerdotal and lay sons. If a son ^ho was once a priest retjjrned to the lay state and was received again by his father into the family house, he will be reinstated in the position of an heir and will inherit equally with the other children. If a man enter the priesthood after his father's death, he * See Beling 332 Colombo B. 0. No. 2746. t See Austin's Bep. p. 46. 1 See Austin's B*p. p. 57. § See Pfirera's Armour p. 51- if See Perera's Armour p. 51. — Saw. Dig, p. 7.— • Mar, Judg. p. 337. 266 KANDYAN LAW OV HIIBSTS AND TEMPLES. ti'ill not thereby forfeit the share of property he maf have inherited from his father. Nor will the circum- stances of his being in the priesthood affect his right 0|f inheriting a share of his deceased bfolher's lands'. If a mail died intestate and without issue, leaving et brother, who is a priest, and a nephew, his lands wilf tfevolve on them in equal shares. When a priest is disrobed or resigns his oflSce, he is entitled to main., t'eaance from his parents' estate * — Sol. Man. p. 22 Priests have the same 4- I" a recent casey No. 25743, C. K, Kegalle, rights aa laymen, a plaintiff was non-suited on the ground that being a priest he could not possess property, the Commissioner no doubt proceeding on the old role laid down in Sawers, that "to take the robe Was to resign a\\ woildly wealth." The Supreme Court, however, in- appeal, set aside the order and sent the case back for hearing and jtrdgment,. remarking that in Ceylort Courts of Law, priests have the same rights as Kymen.f— (SgZ. Man. p. 23. Section 5, (from Austin's Appeal Reports.) 1. Priests of one sect not entitled to succeed to temple' property of another sect. — 2. When there is no pupil, tutor snoceefta. — 3. Resident priest, thoiigb of a different [Sect, entitled to maintenance from the profits ol th&t temple. Priests of one sect, I. ICandy t). C, ISoj 8950. — Rambukwella not entitled to succeed .Unnanse, the Dfeftndant,^ was tht Ghief-priest o( the to temple property of Huduhumpola Temple^ but having adopted tlie Ame-- »no er sec , rapoora persOasion, Gnvernment dismissed him,' and appointed Wariapola Unnanse ^the InterTenrent) in his stead. Defendant however having, refosed to give ,api possession of the said Temple, the Crown brought this action to eject hrm ; but before trial he having ;died, the resident priests of the Temple (some of whom also professed the Aroarapoora faith) were DOflde Defendants on the record. These latter con- * See P^rerii's Armour ^p. 51, 52. — Saw. Dig. p. 7.— < Mar. Judg. p. 337. t See Appendix to Sfi.W. Dhf. p. 4!S.—Ptrera's Ji-mowf V.M,—Mpr. Dig. p^ 66. §^ 282 ; V: U6'%%58.—Amin's *R0M Austin's appeal reports. 26'?' fended thai being pupils of the founder of the said Temple, one of their ijody should be appointed to the Vacancy now caused' by the death of Rambukwella in preference to Intervenienti The CoUrt below decid- ed in iheir favour. The foUowingy how< ver^ is the Judgment of the Supreme Court. " The questions before tbe Court are sin) ply y ist* Has the Government a right to appoint a Priest of the Asgiri establish in etit of the Siaiu sect, who is not a pupil of the found.: er of the Huduhoompola Temple^ to the vacancy caus- ed ty the death of Ram^ukwella, in the office of Chief-priest of that Temple; or must it select a pupil of the founder ? indj Is a pupi! of the fotinder i*rho has adopted the Amarapoora faith eligible un^ der any circumstances to the ofHce of Chief 'priest of this temple ? '' Ii. now appears that since the establishment o' Buddhism, there have existed two sects in that religion j that of Siam and that of Amarapoora,— and that though deputations Itom Arnerapoora were occasion- a,lty nceived at Kandy in the time of its Kinirsj it did not exist as a reoogni^ed sect when that King- dom passed into the hands of the British Govern- tnen'. No Vihares or Pafisalas were occupied by Arnerapoora Priests, — all the n ligious establishments belonged lo the rival establishment of Siam. It apt. pairs also that in n^atters of ceremonial as in matters of laitb, various points of difSerenee ex'St between the two sects, and I hat though many of these points .{perhaps all, except I bat which resificts the' selection of Priesis to persons of the Vellalla Caste, which is at rule of the 8iam seel) may appear imii^aterial to per.* sons of a totally different creed, they are essentially the votaries of either sectj The manner in wWch certain prayers dre pro- itoanced, for instance, is considered as renderiogthena ■propitious or unpropitious to the difety, actJording' to the respective opinions of the sect to which the parties belong. These things, therefore, however formal and however insignificant they may appear to strangers, are symbols of, and acfcnowledged tresis of laith,— essential articles of doctrine* Itappeariflgj therefore, that one sect, viz; the Siamese artone, has existed in kandy, and that atthe titne of the. foundation of this l en a p l e tbe S o^eteiga was-Siamesej-tbe-Ghief^-of the geS K&NBYAN LA.tr OF FBIE8IS ANB lEUPLBS. Asgiri establishment (of which this is avowedly a dependency in matters of faitb) Siamesp, and the founder of this particular Temple Siamese, the Court is of opinion that it woi)ld be acting contra formam doni, contrary to the undnubted intentions of che founder and of the persons who have endowed this Temple with lands, and pontrary to the plain construption of the Treaty of 1815, * were it \.o allow this property to pass into the hands of persons who cannot but be deemed to profesg an her retical faith by the Siamese Buddhists, It may be true that the Amarapoora is tho more ancient and purer faith, but this is entirely foreign to the questioti at issue, which is not one of orthodoxy in Bad4hism, but the tenure and property ; and in this sense it ia sufficient that the faitb now professed by some of the respondents differs from that of the founders, and unrecognized at the period of the accession of the British Government, for them to be ineligible to foundations endowed by the followers of another creed, But the Court would not have it understood that by this decision it in any way infringes the acknowledged principles of religious toleration ; there is nothing 'in its decree or in the reasons on which it is founded to prevent the Amarapoora sect from propagating their sentiments, from buying, from occupying Pansalas and Vihares ■ within the, ^[andyan territories, The Court merely determines that they cannot usurp the property of others, and turn it to purposes evidently opposed to the religious \f ishes pf thp holders of such property. " As regards the tenure of this Temple, there seems to esist no doubt that it should be considered Sangika, the temple having been built little more than si^^ty years, and there being no Sannas or Royal grant produced, or proved to have existed or been given for it, though the King granted lands ; conse- quently the Crown is not limited to the selection of a Pupil of the founder for the office of Chief Priest, but it may select any Buddhist Priest belonging to the Asgiri establishment and professing the doctrines of the Siam sect, " On these grounds the decree of the District Court is set aside, and in lieu thereof it is now decree^ |FT^'^ ""'' l ■ — r --■■ — I .1 ■ ^ — ■ - ." * Clause g. FROM Austin's appeal reports. 269 that the Intervenienf, Wariapola Ur.nans'^, be piU into p'->ssession ol the Temple and gardin of HuJuhoompolla and its dependencies as Chief Priest thereof, and that he be allowed to exercise all the rights and powL-rs, and to perform all the duties, and receive all the profits and emoluments attaching to his said office of Chief Priest, in as full and effectual a manner as his predecessors (Chief Priests of the said Temple) have hitherto done. Each party will bear its own costs " Collective, December a8, 1838. —Austin's Bepi p. 40. a. South Court No. 1 1 1 70, — In this case the Court examined several priests as to the law of suc- cession to an incumbency, in case a priest died without leaving a pupil. They were unanimously of opinion that the priest's tutor succeeded in pre- ference to anybody else. The Court below, con- curring in this opinion, gave judgment for pIainti£F. April 29, 18:4. Defendant appealed, but failing to give security, the question was not brought before the Supreme Court.— Austin's Rep. p. 45. 15. Boulh Oourt — No. 14O9. Plaintifl as one of the resident Priests of the Huduhoompolla Tem> pie, states that he is entitk-d by virtue of his o£Sce to a monthly allowance of four parrshs of paddy from the granary belonging to the said Temple. That since the appointment, however, two years ago, of the defendant as principal of t,be said temple, he the said defendant discontinued the allowance and still re- fuses to give plaintiflany share whatever. He there- fore claims 104 parrahs or their value £s''\> being the last t^o years' allowance. Do'enaant denies plaintiff's right and states that the temple in question had always a body of ten resident priests who were of the Siamese sect of the Buddhist faith. That his predecessor (Kambookwella Unuanse) was dismissed from office because he was considered a heretic, having embraced the tenets of the Amerapoora secN That subsequent to such dismissal the British Government was necessitated to instit ute legal pro- ceedings against him to have hitu ejected from the said temple, in which suit the present plaintiff be^ came a party after the death of the said Rambook- wella,* on account of which he was not allowed to When there ii no pupil, tutor succeeds. Resident priest, though of a different sect, entitled to main- tenance from the profits of that temple. See No. 8950. 8!P0 kakbItaS latt ot priests anIj TfiMPtES. take ?iny part in the religious services in tl>e said temple, and has thtreby forfeited his right to any share in its revenue. In addition to this, defendant states that plaintiff has incurred his (defeadaut's) displeasure by being a most obstinate, disobedieDt| and refractory priest, and refusing to honor and obey his superiors. The Court below gave judgment for plaintiff. — " The only act alleged against the plaintiff is that he took part in a certain suit brought by tl^e Government against the late Ram book wella Unnanse, but the 0)urt is' of opinion that this is not sufficietrt to deprive, plaintiff tf the allowance to which it is admitted he would otherwise have been entitled,'' In appeal a ffir,med..-^" A a the plaintiff has not ceased to belong to the Siamese sect by himself adopting the ordination and tenets of the Amerapoora sect, and has not thrown fff his robes or bi-en stripped of them for any violation of the lules of his order, the Cuurt must still consider him to be entitled as a resident priest of the said teinple to the allowance of paddy claimed by bim. It has been stated by one of Ibe Assessors that the superior of a Wihare has a right to withhold the allowance of paddy out of its common granary or store from any- inferior priest who is disobedient or refractory, until such priest submits himself to the authority of the superior. Tbe Court would require further evidence oo that point if it were necessary to decide in this case whether the supejior of this temple (being held by a body of tea resident priests) had the sole control of the subordir nate priest^ officers and servants ofithe Fihare, and whether the management of its granary and common property vested in him alone and not jointly with the other resident priests of the fraternity. But in this case, I here, is no tvidtnce of plaintiff's having been disobedient and refractory during the two years in question so as to subject him to thereby forfeit his allowance. The defendant has upon his examination admitted / have no other reason fur saying that plain- tiff has departed jrom the tenets of the Siamese seat, than that he took part in the case of Rambookwella Unnanse. If the plaintiff had not taken part in that case, he would have been entitled to the allowance he claims. The Court has therefore only to add, that if the plaintiff, by having taken part with Kambookwella tJnnause (his late superior in office), in the former suit, has rendered himself liable to be deprived of his robes of the Siamese ordination, anxi of hirf rights as a resident priest of the said temple, then the defend ant should take the customary proper stepsto have the plaintiff stripped of his robes, and afterwards institute a suit to eject him from his pansela or resi- dence at the Vihare, if he refused to quit it ; but the defendant cannot take the law into his own hands, and wholly deprive the plaintiff of his rights as a resident Priest to support from the common store of the Vihnre for an indefinite period upon the pretext that the plaintiff had ceased to belong to the Siamese sect by having supported his former superior in the suit aforesaid." — Per Carr, October 9, iii44' . , .. The Assessors having dissented from his decision, they presented in writing the following reasons for so doing, to wit :— 1st, Because the plaintiff had been ei^- communicated by Government when the said temple was entrusted to defendant, and, and, Because what- ever was offered to the priests in common could not be individually possessed, Upon this the following endorsement appears, " The Assessors have based their opinion upon some information out of court, as it is not proved in the case that plaintiff had been excommunicated from the temple, or that Govern- ment ever exercised such a right. On the contrary, a suit was instituted to eject Eambookwella Unnanser, and the judgment in that case does not affect the plaintiff who it appears has continued, to be resident at the temple. There is neither principle nor authority under Kandyan customs, nor yet a,ny othet law, to support the position that one tenant in common could be wholly excluded by another from his share of the common estate, without having any legal remedy for it."— Per Carr. October 39, 1844.— Austm's Rep. p. 57- 272 xambrau latt of friests anb temfli*. Section 6. (From Orenier's Appeal Reports.) 1 . Buddhiat priesthood and bec[uest by iuoumbeut to 80-pupil. Buddhist priesthood i. Kumnegala, D. 0. No. 19,4 '3- — Kotagama knd bequest by inoura- Unanse, chief priest of the Rukmale Vihare, robed hia bent to co-pupil. grand-nephew Kehelwatugode Unanse, when a child of 10 years old, and executed in the year of Saka 739 (A. D. 1817) in his favour a deed of gift of all the temple and other lands belonging to himself "by right of robing succession." On the nth March, 1 S4 ', Kotagama on his death-bed executed a deed whereby " in making disposal of my property" he, inter alia, granted " to my pupil KeVielwatugode'' a field, a temple and all his property at Ambaekke ; to Inde, Welugodde, " a priest of the descendants of my tutor," other lands ; to " my pupil Kotegaloluway" other lands ; to " Karewilagala, the pupil of my tutor, who is rendering much assistance to me at present, the Rukmale Vihare village situate at Kotangampale Korle in the District of Seven Korles, and all the moveable and immoveable property thereto appertain- ing" ; to Paepole and Pitiyagedere " who as my own pupils are renderiilg much assistance to me" certain land* in Kandy j and " moreover appointed that the remainder of all my moveable property * « • shall be equally divided among the aforenamed six priests." Kotagama died on the ■ 3th ^' arch, 1 84 , and hia Will was on the i th July, 1845, pi'opounded in case 18,4 ', District Court, Kandy, by all the legatees, except Kehelwatugode who opposed it as a forgery ; but its validity was established by a decree of the 12th June, 18-6. From that decree Kehelwa- tugode appealed. In November 1 53, the Supreme Court remitted' the case to the District Court to have the representative of one legatee, then dead, made a party, and this having been done by the District t ourt, order was then made on the 2nd February 18155 that the ease should be returned to the Supreme Court. The case was apparently mislaid for some years, as it had not reached the Supreme Court on the 3rd March 1859. In September i3f4, the Will itnelf was pro- dliced in evidence in a case 30879, D« Q, Kandyr^W^ the case r 8,401, in which it had been filed, wag not received by the Supreme Court till the 30th July 1872, and on the 4th Septembei* following the appeal was rejected, " it having been decided long ago thftt the appeal had been abandoned.'* In the interval between 1846 and i86», several law suits arose between £otagama's legates. In th$ first case (30879, D. C. Kandy, 1861-1 864) the be- quest in favour of Paepole and Fitiyagedere was upheld »8 against the claim of Eehelwatugode as pupil and heir, it being proved that the lands bequeathed were Eotagama's private property and not temple lands* -In Decemsber i!S7o, the successor of Karewilagala brought an action ( (8,887 ^- ' '• Kurunegala) against Eehelwatugode who, he alleged, had expelled hiip, from the possession of the Rukmale Vihajre, but this case was withdrawn without prejudice, pendii^ th^e decision of 18401, D, 0. Kandy, then received by tl^Je Supreme Court. Finally in 1^73, after the Will bad been upheld in appeal, Karewilagala'p successpr brought the present case against Eehelwatugode and his sub-priest Maldeniya for this Vihare. For the j>lainti£E, it was alleged in the pleadings and evidenqe t^at, after the death of Eotagama, Earewilagala ^a legatee thereof entered into possession of this Vihare in 1846 and continued therein tUl 1852 when I^e died. He was succeeded by plaintiff, who in 181; 3 put in charge a priest Nungomue, and the latter continued in fflharge till October i S68 when he was ejected. The .jst defendant, in denial of the plaintiff's ppssesgiop, asserted that he himself had possessed since the insti- tution of the case 1H401, D. 0. Kandy, in 1855, till the present time, and adduced evidence to prove that he had in charge under him at different times Mudua- ne (dead), Sumbnlgodde (dead), Bekowa, Ratempoja (1S62-1867), 2nd defendant, -Eadyonuw*, and Pam- badenia, and claimed to hold the incumbency of tjie ' Vihare, &c,, belonging to the late Eotag^m* T^y frmii- Sisya-paramparawa as his pupil and relative, and l)y virtue of the deed of 1817. To the replipation of t%e |)laintiff claiming title iwder Kotagama'a ml}, 4e£end- ants rejoined that Kotagama had no right to execute such a Last Will and deviate thetieby the succesraon to trust property, anch »s t]be Yibare ana its«odowmeati8. 274 KANDTAN LAW 07 PRIESTS AUD TEMPLES. In additioii to the conflicting evidence on either side, the cases 1 8, 40 1 (Kotagama's will) and 3089 (Paepol- i6 and Pitiyagedera'a legacy) D. C. Kaudy, and 1 8,h8;, D. C. Kurunegala (previous suit withdrawn) were put in evidence by the plaintiff, and cases 18,218 and 18,569 D. C. Kurunegala, by the defendants. Of the latter, i8,a'i8 was a possessory action brought by ist defendant in i8' 6 against Ratempola as his defaulting manager of this Vihare under a Power ■ of Attorney which ist defendant had cancelled, and 1^,569 was a possessory action brought by Nungomue against and defenda,nt in 1870, in which the former was declared entitled to certain temple lands. The District Judge (F. H. De Sardm) after re- Viewing the history of Kotagama's will case, 18,4 ci^ D. 0. Kandy, said :—" The questions arising for deci- sion are, First — Is it competent for either party to claim the lands by prescription ? Second — Can the defendant question the validity of the bequest to plain- tiff, he having originally disputed the wilFonly on the ground of its being, a forgery ? T hird^ — Had the de- ceased Kotagama a right to dispose of the 1 emple to the plaintiff 7 First, possession will not benefit either party, as the case No. 18, 1 01 must be regarded as pending till 1H72, when the appeal was finally rejected, and this will prevent presCi'iption running. Secondly, the will being upheld will not prevent the' validity of the bequest being disputed, and the fact of the ist defendant having consented to judginent being entered in No. 39879, D. C Kandy, for certain lands in favour of purchasers from' Paepole and Pltiyageder'e, legatees under the will, does not debar him from dis- puting the bequest to- the plaintiff's tutor, as the lands in dispute in that case were the private property of the testator. (Supreme Court judgment, a6th January, i860, in that case). Thirdly, in determining the third question proposed for consideration, it" is neces- sary to ascertain the mode of succession to this Temple, and it is important to look the wording of the will. Unfortunately, the original is not in the case, and it was stated by Counsel at the trial that it was abstract- ed from the record and is not forthcoming. There is, however, a translation filed, and from the endorse- ments on it, and from the record made in the case when it was filed, it is clear that it is the one that was PR^M geenier's appeal reports. 275 filed with the will. The plaintifB is the pupil of the late Karewilagala Unanse to whom the Rukmale Vihare was bequeathed, and it is through him that the plaintiff now lays claim to the Vihare. '1 he plaintiff in his examination admitted that the testator succeed- ed his tutor in the management of this temple, so that it is clear the succession to the incumbency is regulat- ed by the Sisya-paramparawa, The ist defendant, however, contends that the succession is by the Gnati- sisi/a-paramparawa, that is that the pupil should also ise a relation of the deceased priest, but this question does not arise in the case as between the plaintiff and ist defendant. In this will (according to the transla- tion) the testor designates Karewilagala Unanse as ' the pupil of my tutor ' and calls the ist defendant ' my pupil.' This declaration that Karewilagala Unanse was the tutor's fellow-pupil is conclusive, and from the leading case on the right of successi6n to Vihares (366 D. C. Kurunegala) it is clear that Kotagama Unanse could not bequeath his trust and will away the temple and its"^ endowments to his fellow pupil, to the exclusion of his pupil, the ist defendant. It is therefore decreed that the plaintifi's claim be dis- missed with costs, and that the ist defendant as pupil of Kotagama Unanse be quieted in the possession of the Rukmale Vihare with all the endowments thereof.'' Against this decision the plaintiff appealed. Browne, for appellant. First, the bequest by Kotagama must be upheld as a bequest of private pro- perty in the absence of evidence to the contrary. The bequest in favor of Karewilagala is made in the form in which private property would be bequeathed by a priest. It is in the same language as that which was used in the devise to Paepole and Pitiyagedere Of lands which in 30,879,0.0. Eandy, were proved to be private lands ; and the devise thereof was upheld. There do not occur in the will the words " in charge" or " in trust" on which so much stress was laid in the judgment in appeal in 9,04.0, D. C. Eatnapura; as de- noting that the lands were temple property. The devise being followed by long possession, the onus of proof that these were temple lands lay on the defend- ant, who alleged that Kotagama had no power to deal with them by his last will. The original title has always been established in evidence in like cases : 366 276 EAK-DTAK LAW OV PRIESTS AND ISMELES, D. C, Kurunegala, 9,04c, D, 0. Batnapmraj a7ojS, D. C. Gralle. But the learned District Judge aesumed the lands to be Temple lauds, and therefore, in the absence of evidence, bis decision must be set aside. £Catlet, J.— Kotagama's succession to his tutor, and the appellant's succession to his tutor suffice to shew that the lands pass by succession and are therefore templs lands.] Assuming his tutor to have died intestate and without granting him a deed of gift the appellant would succeed. [Tatley, J. — No. His lay heir would become entitled,] The question on the plead- lings is the right of the a,ppellant's tutor and not the right of the appellant under him. Secondly, assuming th^ lands to be Temple lands, Kotagama had the right to bequeath them to his fellow pupil. The ist defend- ant has failed to support his contention that the suc- cession is regulated .by Gnati-aisya-paramparawa or Siwum-parampdrdura (as the succession by relation- ic^p is turned in 366, D. 0. Kurunegala. Service Tenures Commission Beport for 18 71.) The law as -to 'Sisya-paramparawa is thus laid down by the priests of Malwatte Wihare, as approved by twelve Kandyan chiefs OB the 5th January, i9}2. " The lands, Wi- hare, <&C> beloiiiging to Bhikshu (or TJpasampada, priest) will, although he had (so many as) five pupils, Revolve solely to that pupil to whom an absolute gift was made thereof, and that pupil alone of the said donee will afterwards succeed thereto who received a regular gift of the same from him. The uninterrupt- ed succession of (upils in this manner ia termed Sisya paramparawa. Should the priest, the original proprietor, declare his bequest common to all his fiye pupils, they will all become entitled thereto, and one of them being elected to the superiority, the , other four may participate in the benefits; the said superior being dead, the next in rank will succeed to the superiority, and along with the rest (of the survi' vors) will enjoy the benefits. This order having sub- sisted, the last surviror will enjoy the benefit, and have the power to make a gift in favour of any other person. But the original proprietor priest may transfer his rights to any other person he may choose, passing by his own pupils. In the event of the original proprietor dying intestate, the priests who happened to be assembled at his death become «»»tJtled in commoD. Things which belonged equally to two>prieat8 devolve wholly to the survivor. " la these three rules, the rul& as to succession to tempi* Isnds ta laid down in a three- fold division, viz. (i)- where gift is made to one pupi!, ,(i) where the be- .^uest IS .common to all pupils, aad (3) where the rights .are transferred to a stranger to the exclusion of B'H the pupils, inasinuch however as the gift can be made to all the pupils or to a stranger, it followa that, a priest while ha has authority to .du so (9040, B. C. Hatnapura) is not bound to select one pupil or indeed .any pjipjl AS Ms successor. It is suflScient if the ol^ect of his selection 4>e a priest. In ji i 18, l>, O. Randy, it was held (per CatlbT, D. J.) that a priest who has no pupils of his own can nominate as his successor a pnpil of his fellow-pupil, as being one in the same lineof p.uptUary saccpssion 5 and referring to these laws of the Malwaite priests, it was there Stated by the I^strict Judge, — *' the words are general^ and I do not see how they can be made t(y apply to the incumbent's own pupils only." Accor- dingly, I submit that it was competent for Kotagama to bequeatb to his feljow pupil to the exclusion ot bis own pupil, the respondent [Caylet, J> It Las ^^ays been the accepted rule of law in this Court that when once a gift was made by a Sannas or otherwise of lands for the purpose of future priestly- ^ccesi-ion by Sisya pwamparawa, the original pro- prietor priest might indicate the person throuah whom the line of succe&sion was to pass, but thai hereafter the succession was always to conUnue therein strictly limited to the pupils of each successive incQmbtnt.} TSo s.ujch conditions are stated iu these rules to have been ever imposed by Hie Kings or other donors, and as '* tlie ordinal p^oprt^tpr ptie$,t" ^ad aJ3#o}ute powers of selecting his successor, to whoiii be trans- ferred all bis rights, each saeeeeding pI^oprietor priest reiieiired the same rights as belonged .to the orlgisal proprietoT'priesjt without liniitation, an^ ppu,Id dispose of them at %\st pleasure ^) ^n,y i^bier priest, e$>peoiaUy if the latter were a copapili, [CAitLCY, J^ Tho enforced limitation of succession to a priests owa pupils Ijas ngver been q^e^tiooed pf^viflusly to this, a»a as it has always been accepted and actqd' upcp, ppr judgment mu;8t be givisn in accordance jvith nj Thfrdly, the defendant having in 1845 tailed to prove 273 KANOTAN LAW OF PRIESTS ANI> TEHFLE8. the invalidity of the testator's will in 184.01, oannoC be ptirrqitted now to question the validity of the be' quests therein contained. This point was raised and decided in the afSrmative in 38790^ District Courts Eandy, against the present defendant who took an appeal therefrom. The decision was not set aside in appeal although the case was beard and remitted for further bearing on affidavits of fresh meritSr Fourthlyr prescription is agaii st the defendant and establishes the genuineness of our claira. The nott* receipt of 18401, District Court,. Kandy,. by the Supreme Court in 1859— not till 187a — and the pro- duction of the Will in Kandy in 1864, prove that the defendant must be regarded as having abandoned his- appeal shortly after 1855, the dite of the last order in the case* Rekowa, one of his own witnesses,^ proves- that the appellant's managing priest, Nungomue, re- fused to let him into possession in i860, and when Ratempola was ejected in 18218, D, C. Kurunegala,. (to which the appellant was not a party), the head- man in 1867 reported to the Fiscal that Nungomue bad then been in possession for 18 or 19 years, and resisted the execution of the writ. [Catlbt J, The evidence of prescriptive possession should be tar stronger in a case of this kind, but it is doubtful whether prescription could give a title to sucli a case: of a trust,. The ruling we have made however a» to the necessary pupillary succe-aion is conclusive against the appellant.] Ferdinands and Grenier for respondent were no called upon» Judgment affirmed. — Grenier' s Rep> Vol. in, p. 6&. Section 7. (From Ramanathan's Appeal Beports.) 1. Priests of one sect not entitled to temple property- dedicated to another sect. — 2, If temple property be com' raon ISangiha), the resident priest cannot be sent away with- out cause. — 3. Lease of temple property good, so long at the lessor is alive as priest. — i. Frivate property of priest* goes to his temporal successor. — 5. Buddhist priest, if only child, succeeds to his father's estate. PiiOTts of 8n» sect i. Ga'Ut D. 0. No. ijopa.— Action to restrain not entitled to temple defendant from officiating in a certain temple. It KerM*t appeared that one Dona Jebona gifted the landia »R^M SAMANAtHill'a AfFEAL EBTORliS. 2?fi l8i6 "for the purpose of enjoying the produce thereof as Sangike comoion property) by all priests resorting there Irotn the four cardinal points and under the superiority of Croddegartima fiuddbe Rak- kitie Teroonanse," who in 185 j built a temple there- on, and officiated therein till his death, he being o( the Siamese sect. Both plaintiff and defendant were his pupils, but the latter, though ordained as of his master's sect, went over about two years before action was brought to the Araerapoora sect< Much evi- dence was taken as to the fact of pupilage of the parties and the court pronounced the following judg- ment : — " I am of opinion that the plaintiff has no standing in the court, and that there is nothing whatever to justify this court in granting the prayer of the libelr It is unnecessary to enter into the question which has been raised as to whether a priest seceding from the Siam to the Amerapoora sect would thereby for' felt his right to the incumbency of a temple wherein religious rites were celebrated according to the Siam sect. This does not come legitimately before the court looks at the deed upon which plainliff founds his riglit and finds no mention whatever made therein of any temple. It appears to be simply a gift of a ^rtain garden tn favor of priests from all quarters of the globe with a view to their enjoying the produce ef the fruit besting trees standing thereon. According to the clear and manifest intention of the donor, such was to be the application of the pro- duce and the priest appointed to take charge of the garden, I consider to have been so appointed simply in the light of a,snperintendent. The prayer of the libel if granted would appear to be directly opposed to the spirit and intention of the donor. As far as I understand, that intention was to devote this garden for the retreshraent of all priests who might choose to resort thereto, and to adjiidge a control over the property in favor of one sect to the exclusion of another would be, as I con- ceive, to defeat the clear intention of the donor. The building has been put up since that gift was made, and there is nothing before the court to justify it in decreeing that the plainliff has acquired a pre- scriptive right thereto. The plaintiff fs accaitd'mgly non-suited; parties' Hearing their o^n costs " The plairitiff appealed agafinSt the judgment. ^. J^organtor appellant, /?, Morgan for respoo^ 4<£ titled to succeed to bis right as superior of the temple and pattidla in question with the lands belonging thereto, — and he is accordingly decreed to be quieted ia the posseusion thereof apd the defendant must pay the costs pf this spit, The Supreme Coart is of B(>iniop that under the deed of donation filed, the- priests of the Biam sect only were entitled to enjoy the premises, and that it would, be " contra jarmam, doni" for priests of Amerapoora sect to hold tbs same, V^hat^ver right therefore the d^epdant might baye had as a pppi| of the late Goddegamma Bpddba Bakjiitte Tpropnapse he fprfejted it by sepedipg from tlip ^i^t^ to the AipeTapppra sect, and the plaintiff succeeded thereto, as bis pupil of the Siam sect.; — Banj, Nalh. Rep. 1843' 51; pp. 42, -48, 44. If temple property be „^ yhi)cb are N>th of the Siapa sect^ his evi? denee may \te referretl tp as di|ii'>nte!reste4 and inde^ pendieilt ip the letter pf disipute, and he depipses <* I belong to the Anaerapoora sect, and am Chief priest,, There are t'^yooriginal sects in the dtstrtfit (Tahgalle) vIk; Amerapoora apd Siam sppi«ties, this latter i^ divided into twp sects v.iic, Wihelle a»d Molkerigalle, the priests pf these sects have. separate temples, 4 priest pf the Wihelle sect m»y by cpnseut occupy A FROM EAMANATHAN's APfBAIi HBPOEIS. 281-' temple belongitig to the Molkerigalle secf, but the former cannot be ousted, unless that he has been ex- communicated for some crime or other, but he cannot be ousted for exercising any rights in it," He adds further "although the temple might originally have belonged to the priest of one sect different from the sect of the resident priest, the latter cannot be ousted,, and the produce of tlie temple property cannot be withheld from him if the temple and property' be Sangika," which the temple in question is proved to be J and the witness on these points is fully corrobo': rated by the 5 th and 6th witnesses who are priests of the Siam sect. Admitting even tbei-efore that Goddapittia Terunanse and his pupils C^deroepokene and the plaintiff had a right to the temple under the deeds 1800 and 1818, still the defendant was clearly with. their consent inducted to the temple, and has for many years been the residept priest thereof and officiated thereip, and he is .moreover proved by the plaintiff's 1st witness (on the first bearing) and others to have repaired the temple and kept the temple pro^ perty in order~and enjoyed the produce, Whilst the proof of the plaintiff having during the same period exercised any act as owner of the temple property is not only very conflicting, but as appears from the testimony of his 7th witness such acfs on the plain- tiff's part would be contrary to the Buddhist tenets, as the witness says " the produce of one temple which is Sangika cannot be removed from that temple and Consumed by a priest of another temple, it must be left to the resident priest for his support," — Ram. Nath. Sep, 184? 'SSPP- 158-159. 3. Kandy, D. G. No, 67167,-^The Supreme Eeaae of temple pro. Court affirmed ihe finding of the court below as fol- perty good, so long as jij^g the lessor is aliv« ~- The only point pressed upon us upon this ap- peal is that plaintiff cannot maintain this action of ejectment by reason that the foundation of his own title is a twenty five years' lease, which it was said, was ultra vires and bad ah initio. But the lease is good as against the incumbent who granted it, and as against all the world, as long as his incumbency endures. In the case cited for appellant (D, 0, Kandy No, 59767 Civil Minutes and July 1875) the incum* priest. K^NBtiN: LAW QV PKIBSIS' ANB TEltSLfS, Private property of priest, goes to his tem- poral successor. Buddhist priest, if only child, succeeds to his fatbjer's estate. bency of the party wbo erranted the lease had alrea'dy determined. — Mam: Natk:Bep. iSyj.p. 325. 4. Kandy. D. C. No, 67849.--The Supreme ©burt Held as follows: — The plaintiff sues as the pupil of a deceased priest on a bond and promissory note granted by the defendant in favour of the- deceased priesf. Two parties intervene in the case, one calling himself a pupil of the deceased priest, and the other his brother and heir'at-law, and there is no doubt if the bond and promissory note are not temple property, the brother would be the party entitled to them. The two documents on the face of them are a bond and a promissory note in favour of the deceased priest. There is nothing in them to shew that they were trust property, which would go to his sacerdotal beirsj and we think the D. J. right in holding that they were the private property of the deceased priest.— Bam: Nalh: Bep: 1877. p. 182. 5; Batnapura, D, G. No. 6^36.^Per Curiam, —The decree of the! District Court is set aside and ths case remanded back to be proceeded with and judg' ment to be given de novo. The costs are to abide the result. Although a priest, if he has lay brothers and EJsters, can have no claim to his father's land, but by sp ©cial gift or bequest, yet if he be the only child, the Supreme Court has held that he has a right to inherit his father's lands in preference to collateral heirs, The rule is not general that a priesf cannot acquire or inherit land, and that to take the robe is to resign' aU>w(vrldly wealth, as has been stated, because a priest may at all times acquire! land from any one by gift, bequest or purchase, and may inherit his bro- ther's or sister's estaie,— 'Bam: Nath: JBep.- iS+s'jj TEOM THE SUPREME COtTET ClECTJlAH. 2^8 Section 8. (From the Supreme Court Circular.) 1. Robing necessary to pupilary succession called Sisyanu sisya paramparawa. — 2. Right of incumbent priest to appoint a successor by Deed, and to revoke such appoint- ment, — 3. When the descending line is exhausted; recourse to be had to the aacendingf — 4. Resident priest entitled to rents and profits of the temple. — 5. Private property of a Priest passes to his temporal Accessor. Sisyanu Siai/a Paramparawa tenure — Pupilatry suc- cession to buddhistic Incumbency— Sannas, I. Kandy D. C. No. 81630.— By a Sannas ^u^pUa^^sucSou dated Saka 1708 a Vihara and certain appurtenant called Sisyanu jisya endowments were limited to the grantee " and his paramparawa. pupils ia their generations," By a deed dated the 7 th May 1849, the then incumbent of this Vihara granted it and its endowments to four persons "and their pupilary descendants in their generations." This • grant contained the following proviso: — And out of the said four heirs, none of them shall at his own accord and singly make over his share of the said Yihara, &c., excepting with the mutual consent and approbation of the four ; or, after it has fallen upon a single one of tbem, such survivor with one going astray from the Sannas, shall make over the same in writing." The plaintiff was one of the grantseS and survived all the others. He was not a \ upil of the grantor, but a pupil of the grantor's preceptor.- He claimed the Vihara, &c., as such suivivor. Held, per Ouriam, that if the deed of 1874, pur- ported to vest the Vihara, &c., in the plaintiff, who was not a pupil of the granior, to the cxcliision of a pupil of one of the grantor's pupils, it was repugnant to the Sannas and opposed to the Sisyanu Sisiya. Paramparawa tenure, and consequently that ii confer- red no title on the plaintiff, •Held further, per Curiam, that instruction with- out robing or presentation for orders by the preceptor is insufficient to create \ upilage for the purposes of succession under the above tenure. Held, hy Dias, J. that robing by the preceptor is necessary to create such pupilage, and that mere presentation for ordination is not sufficient I94i3> 284 KANDTAN LAW OF PRIESTS AND TEMPLBS. D. C. Kurunegala, " Grenier's Rep." D. 0. (1874) p. 68, approved and followed. This was an appeal by the defendants from a judgment of the District Court declaring the plaintiff entitled to a Vihara and its endowments. The facts of the case sufficiently appear in the judgment of the Chief Justice. On appeal, Van Langenherg (Bornhorst with him) for defendants, appellants.- Ferdinands, B. Q, A. {Grenier with him) for plaintiff, respondent. Cur. Adv. Vult, On the tatb July, 1881, the following judgments were delivered : — Caylet, C, J. — This is an action for a declara- tion of title to and for the ejectment of the defend" ants from a certain temple called the Degaldomwa Vihara and its endowments, and for mesne profits. The ist defendant is a layman, and the *nd and 3rd are Buddhist priests. All three are alleged to be in wrongful possession of the temple and its endow- ments. The three defendants have filed a common answer, but the ist defendant does not set up any, right in himself. He appears to join with the 2nd and 3rd defendants in setting up their right. It has been more than once pointed out by this court that a Buddhist priest cannot be ejected from a Buddhist Vihara, except, of course, for some personal cause, irrespective of the rights of property j for a duly de- dicated Vihara is "Sangika," the common property of the Priesthood. But the incumbency of a Yihara and the control and management of its endowments may undoub'.edly be vested in one or more person or persons to the exclusion of all others, and suits are common enough in our courts, which are brought by Buddhist priests for the purpose of obtaining declara- tions of right to Buddhist incumbencies, and of being quieted in the possession and enjoyment thereof and of the endowments and privileges thereto belonging. The present action is an action in effect of this kind and may be so tieated, though the prayer of the libel is not aptly worded. The plaintiff's title to this incumbency is set out in his libel as follows; — " Parenatsla Ratnapala Unan- se, a former incumbent, on the 7th May, 1849, ^7 ^ XBOX XHB SUPSEUS COUBX ciBexrLAii,^ 286 oert%in deed graiMied the temple and its endowments to four persons'; Vilz.; E. Sumana, : P., Ratnupala (the younger)^ the ptlainliff, and S. Sumangala^" Bji this grant, which is ad mitted iw t-he answer, thei temple and its enddwments are limited to th© giantees '^and their pupslary descendants in their generatiqns;" arid the grant contains the follbw Eatnapala (the elder), and the 3rd defen. d'ant having become P. Sum ana's pupil after the. death of his original preceptor, P. Ratnapala (the younger). The principal question in the case which is raised in these pleadings, and the one. upon which the plain- tiff's right to this Vihara must stand or fall, seems to be this : — is the deed of 18+9, so far as it purports to rest the iocumb'ency in the survivor of the four gran- tees, valid and effectual? If itis, it seems to follow that the plaintiff is entitled to this incumbency. If it is not, he has failed to make out his case. Is, then, this provision as to survivorship repugnant to the Sannas by which the Vihara was founded and dedi- cated ? This Sannas was granted in 1708 Saka, or A. ,D. 1786, and by it the Vihara and its endowments were limited to the grantee " and his pupils in their geperations," There seems to be nothing special a^^out this Salinas. It emploiys the ordinary language by which the Sisyanw Sisya Paramparawa tenure is created. Now, ttiere can be no doubt, in vievr of the authorities cited by the learned District Judge and of other cases which have come before this Court, that under such a tenure it is competent for the incumbent to select one or more of his pupils to be his successor or successors, and such being the case, there seems to be no reason in principle why he should not appoint the incumbency to devolve upon all his pupils jointly with an ultimate appointment of the last survivor as sole incumbent, after the decease or disrobing of the others : for such a limitation does not break the line of successfon. But the plaintiff in this case appears not to have been the pupil of P. Ratnapala (the elder) in the sense of having been robed by him. I have always under- stood that it is the robing whieh constitutes pupilage for the purposes of succession to a tutor's incumben- cies, and not mere iostructibn. Such is certainly the generally accepted law, and no authorities have been cited to the contrary. Indeed, the plaintiff's own witness, the distinguished High Priest of Adam's Peak, expressly confirms this. He states that pupils who have been merely taught by an incumbent would not suQcead under Sisyanu Sisya' Paramparawa ; and he goes on to say that robing is enough to constitute ?KOH THB 8TIPRBMB COTJET OIKCtlLAa. 287 |)upUage, but that theire must be either robing or pre. sentation for ordination to constitute pupilage. I was not previously aware that presentation was sufficient without robing to constitute pupilage, and perhaps the learned High Priest's statement as to this was not intended to be taken without some qualifica. tion ; but this point is not material in the present ease, for plaintiff was neither robed nor presented by P. Ratnapala (the elder.) He states in cross examination that he was not only robed by one Mahala Unnanse, but has succeed- ed to one Mahala's incumbencies as his pupil; and Batnapala (the elder) seems to have had nothing whatever to do with the plaintiff's ordination ; for plaintiff was still a " S^manera" when Batnap^la'dis' robed himself; and he became a " Samanera" under Mahala. It was urged in appeal that plaintiff and Batna< pala (the elder) were ci>-pupils, each having been a pupil of Mahala, and that the deed of 1849 <1'<^ i^ot confer any right upon a stranger, in the event, which happened, of plaintiff surviving the other grantees, plaintiff himself being within the original pupilary line. The second defendant admits that plaintiff and Ratnapala (the elder) were both pupils of Mahala. The question then arises whether an incumbent has power to limit the succession to the incumbency first to a co.pupil jointly with a pupil of bis own and then, after the death of the pupil, over to the co-pupil, to the exclusion of the pupil's pupil. I am not aware of any precii^e decision in point. It was held by the District Judge of Kurunegala in case No. 19,413 that an incumbent could not by will confer a temple and its endowments upon a co-pupil to the exclusion of his own pupils, and this deicision was affirmed by the Supreme Court, " Grenier" (1874^/1.68. This case would seem to show that, when an incumbent has pupils of his own, he cannot interrupt the regular claim of succession from pupil to pupil ; though no doubt when in any case an incumbent baa several pupils he may make a selection from among them. The decision of the District Judge in the Kurunegala case is based upon the wellknown case No. $66 of the Agent's Court, Kurunegala (" Vanderstraaten's Bep." App. D.) ; but this case does cot strictly de- ^ i;4,vpi;an i-AW 08 Fsmsens; Aim nevFifSs. 6J4^ the point. The SupffemeCourt, howeveti, jiiMig- iDg froiQ the jiepoTiitdaiiler dieta'ioi the jodgeS) would se^fDr tp hol4 '^bat ^n. iacuipbisnt cauntOii if he has pupils of his.own, hreak Ihe line ijkf successioia!, hj apppjpt jng; a co-pupil . "iP^aramparaiwa/' according to the A sgiriya priests (No, ^66, Aigetil's Court,. Entunegala, ubi sup7w)i, implies ftnuninftetrupted'suceession like the links of a chain, It appears to me that it is for the plaint ifE .to iQ^ke. pub that the successipo from pupil to pupil can - can h^ interrupted in, thejmanner contended for, and this he has failed to do> I accordingly think that the ptaiptiff's right under the deed of 1849 has not been CSitablished. In , an action of this kind,, which is hroqght against priests who are- in pussession, an4 oii^e of whom is io'the rieg,ular line of successi n, the plaintifiE must clearly establish bis right, and this he seems 10 me to have failed in doing. I think the decree of the District Court must be se( asidff and the plaintiffs siiii be, dismissed with costs. DiAs, J.— In this case I fully concur in the jiidg,n;iient whi(;h has just been delivered by my lord th@ Chief Justice; buii as .the pqin,t of l^w iii|Volved in the c^se is OQe of som; impcirtance, i sl:i,all state my reasons for th^ opinion w,hicb I have formed. The Yijbara in que^ition was fouod^d bj. a Sinhalese King, and ,the S,a%ixas 011 whiph >t was founded is a doqur meat ot thp usual ki^d, atid the tgpuire created tht^reby is the wellj^nowii tenure Sisyanu Sisya Faramparawa, whiqh means ''pviipilary successiijnj;',' or "succession from pupil io pupil." 'fhei second wqrd "ffl«f«l' means " ^a^h by, each," or *' orderly," apd the effect of that word seems to me to (imit the succession to the descending line, to, the exclttsionol both, the as^ censing and the collateral lines. ^ Thus we see that, according to the strict grammatical, meaning, of th^ wprds Siiyanv-. ■SiiyiOi EcarofnpfiraitiQ,, the line of suc- cessioii, is limitf.d to pupils of the dciscending line, Thpie ar.e some decisions of this. Court, and the District CeiHrtjwhicbfare 3pparen|t.ljf,opposed: to thi)5 riie.w.pf.th^ q^t^siion, butt m,t(i^ view lof .theimeaning of the expreesjop, and of the deciisiptJ^ in suppprt of thfit y'M&yi, I am' of opinion, that the.,(ine of successiofi frpnji,pi4{til jp,,ju^pU c^jiotihci i?itjinr.uptjB4^. as it np TROM THE SUPEEME COTTKr CrRCTTLAK. 269 ■doubt would be if a collateral succession is engrafted on it. It is admitted on all sides that Paranatala Ratnapala (the elder) was the last incumbent of the Vihara in question, and that he by a deed of 1849 granted it to four priests, including the plaintiff. In that deed P, Ratnapala (the elder) in mentioning the iou'r grantees by naa>e calls Paranatala, -(the younger) his "relation and pupil;" but with regard to the other three he simply calls them " priests." By this •deed Paranatala (the elder) conveys the Vihara and its endowments to the four priests under the tenure of Sisya Baramparawa and appoints Sumangala as their head. So far the deed is not open to any objection and is in accordance with Buddhist ecclesiastical law and pi act ice, provided the grantees are, in point of fact, the pupils of the grantor. There is another provision in tbe deed by which Ratnapala :(the elder) appoints the survivor of the four grantees tiie incumbent of the Yihara and its endowments. This provision is equally unobjection- able, as was pointed out by my lord. Confessedly tbe plaintiff is the survivor of the four grantees, and if he was a pupil of Ratnapala (the elder) he is clearly entitled to succeed in this case. It has been proved that plaintiff was neither robed nor presented for or- dination by Eatnapala, The plaintiff seems to have been a co, or fellow-pupil of Ratnapala (the elder) under a common preceptor called Mahala, and the questions of law which have been submitted to us for decision are ; — First, whether under the circum- stances the plaintiff can be considered a sacerdotal pupil of Ratnapala (the elder), and second, whether it was competent to Ratnapala (the elder) to introduce his own co-pupil into the line of succession. After Mahala's death, and in all probability poipt a successor to the last incumbent- ,, . ,. a. This was an appeal from a judgment of the Uny'rexLSe?"^ District. Court by which the right of succession to a courae to be had to the Buddhist paRsala was declared to be m the plamtin, ascending. The facts of the case sufficiently appear in the judgment of the Supreme Court. There was no appearance for the appellants. Qrenier for plaintiff, respondent. Cur. aftv, vuK, PROM THE SUPREME COURT CIRCULAR. 295 The judgment of the Court was delivered on loth February, by DiAS, J.— This case involves a question of Budd- faistical law of some practical importance. The plain- tiff claims the iiiumbency and chief management of Talaran^lea pansala, and avers in his libel that one Pangha Nanga Unanse was the chief incumbent of the pansala, that he died, leaving no pupils, and that the plaintiff, as his tutor, is entitled to succeed him. The defendants in their answer set up a right, which CD the face of it is bad. They allege that they were put in possession of the pansala by certain Payakeyas, ^hich means the persons who originally dedicated the pansala. It would be convenient to dispose of the defend:' ints' alleged right betore going into the plaintiff's title. When a pansala or other property is dedicated in Sanghika, the dedicators or grantors cease to have any right or control over it, and Uie right to the pro- perty so granted is regulated by a well known tenure called Sisyanu Sisiya Paramparaiva, The right which the defendants set up is there- fore quite unfounded, and as regards the incumbency and the management of the pansala in question the defendants are mere trespassers, but the plaintiff's title having been questioned by the defendants who are in possession, the plaintiff was bound to prove it. The case was first tried on the 13th November, 1879, and the then pistrict Judge gave plaintiff judgment. This judgment was, however, set aside by the Su- preme Court on gist August 1880, and the case was remitted to the District Court for further hearing on the two following points, viz, :— First, can 3 Samanera priest be invested with the incumbency of a Vihara? Second, if the deceased Pangha Nanda was the pupil of the plaintiff, has the plaintiff a right to succeed him in this incumbency ? The second trial took place on tpth August 1881, when evidence was called on both sides. With regard to the first question, there is a lar^e quantity pj pyideoce founded on Buddhistical writings, and though the learned men who were examined are not »gre§d as to the meaning of certain words and ex* 296 KANBTAN LAT? OF rEIBSTS AND TEMflBS. presslons in the books they all agree that according to practice and usage Samanara priests have held and are now holding incumbencies like the one in question. Independen'ly of this practice, the very words Sisiya Paramparawa seems to support the usage deposed to by the witnesses the meaning of these words is '' from pupil to pupil," and all that is necessary to constitute pupilage is the robing of the pupil, when he becomes Samanera, or attains the first step in the piiest-hood (see vol : 4, S. C. Ctr, p, lar.) there is nothing in the words, themselves to justify any limita- tion of the pupil's rights, or denying him the right of succession until he is an ordained or an Upasampada priest. Tile question, however, is not altogether new. There is a case reported in Vapderstraation's Rep. p. aa4, in which the District Court of Ratnapura upheld the rights of Samanera priests, and I ara not aware of any caBe,eitherinthiscourtor in the District Court, in which that right has been questioned, and according to the evidence adduced in this caae the practice of invest- ing Samanera priests seems to be quite general. The second question, whether a tutor is in the right line of succession to his pupil in the absence of pupils of that pupil, was fully gone into at the second trial, and the weight of evidence is decidedly in favour of the plaintiff's contention. Except the case referred to from Austin's Reports, in the last Judgment of this Court, I am not aware of any case in which the point has been expressly decided ; but I always understood the rule to be that after exhausting the descending line you must resort to the ascending line, such as the tutor of the deceas- ed incumbent, and, failing him, the fellow-pupils of the deceased incumbent. There is a case reported ia Rama-Nathan's Rep : (1863—68) p. aSo, in which the District Court of Colombo upheld the right of a fellowpupil. That case was, however, set aside by the Supreme Court, but upon grounds which did not affect the rights of the then plaintiff as a fellowpupil of the deceased incumbent. The learned Judge having decided the two issues which were sent down for a second trial in favour of the plaintiff, gave him Judgment, which I think is right and must be affirmed.^Sup : Court Cir : Vol. V. p. 8, FROM THE SUPREME COUET CIECTJLAR. 297 Present: — Dias and Lawrje. J. J. (a a, April, and ij July. 1884.) 1828. Ratnapura, D. C. No, 2600. Buddhist Law — Fikare — Sangkika property — Action Jor accounting — Absentee — Bents and profits- — Pt escription. Where the incumbent of a Buddhist vihare ap- pointed by will two of his pupils as his joint successors to the vihare endowments, and, after his death, both pupils entered upon the incumbency and shared the rents and profits thereof as joint rents for the period of prescription, and thereafter one of the two joint incumbents absented himself from the temple, leaving it in the sole charge of the other : Held, that the absentee incumbent had no right of action against the resident incumbent for refusing to permit him to share, during his continued absence from the pansala, in the rents and profits arising out cf the vihare endowment. Semhle, only those priests who reside in the pansala and take an active part in the rites and ceremonies performed in the vihare are entitled to share in the produce of the vihare endowment. Semhle, further, that a claim for rents and profit3 that accrued more than three years before action brought is prescribed. 4. This was an appeal by the defendant from a Resident priest en- Judgment of the District Court ordering him to ac- titled to rents and count for the rents and profits arising out of the endow- P'ofi*^ of the temple, ment of a vihare to which the first plaintiff and the de- fendant had been api>ointed by the will of the Jate incumbent as joint incumbent and co-owners of the vihare property. The District Judge was of opinion that the first plaintiff had established his joint title with the defendant to the incumbency of the vihare in question : and also that he had enjoyed possession of the same for the full prescriptive period after the late incumbent's death ; and, accordingly, he gave the plaintiff's a decree compelling the defendant to give an account of the rents and profits of the vihare endowments, as bequeathed under the will of the late incumbent, from the year 1875 ^^ respect of the claim of the first plaintiff, and frcm the year 1877 in respect of the claim of the second plaintiff who had 298 KANDTAN LATT OF FBIESTS AND TEUn.ES. purchased a portion of the first plaintiffs' interest in the vihare in that y»ar On appeal I'erdinands 8. G, {Botnhorst with him) for the defendant, appellant, VanLangenberg {Seneviratne with him) for the plaintiff, respondent. Cur : adv : vult : i^th July : — The Judgment of the Court, dismissing the plaintiff's action, was this day deliver- ed by Lawrie, J. — The first plaintiff, averring rights to shares in certain land and moneys as the legatee and pupil of a deceased Buddhist priest, state that the defendant, and co.owner and co-pupil, undertook the management of the estate in August, 1864, and collected the rents and profits ; that he regularly ac- counted to the plaintiff and paid him what was due to him up to January, 1875 (except Rs. 910 and the amounts received under four Judgments, which are estimated at Bs. 15,000)- Tbat from January, 1875, until October, 1877, the defendant relused to account or to pay to the plaintiff; that in October, 1877, the first plaintiff transferred some of his rights to the second plaintiff; and then both plaintiffs complain that from that date until the institution of this action (27th February, 1880) the defendant refused to ac- count to or to pay them anything. The prayer of the libel is for an accounting and for a decree for the amount to be found due. There is no prayer for a declaration of title. We are of opinion that the claim for money alleged to have been in the hands of the defendant in January, 1875, '^ prescribed under the 8th section of the ordinance No.- 22 of 1871. We are further of opi- nion that the claim foi rents and profits received by the detendant more than three years before the date of the action is also prescribed — that is, that the plaintiffs have no right to an accounting prior to 37th February, 1877. The estate in which t he plaintiffs claim an interest is the property of the PelmaduUa vihare, of which the original testator was chief incumbent. It is not necesary, in my opinion, to determine some of the questions raised in argument as to the rights of a priest to make a last will dealing with IBOU THI SUPBEUS COURT tJIRCULAB. 299 the vibare and endowments, nor as to his powers to select from among his pupi's one who shall have larger powers of maaagenneut and a greater share in the rents. It seems clear from the proof and from the aver- ments of the plaintiffs, that first plaintiff has not for soma years lived in the Pelmadulla Pansala, and that the second plaintiff has never lived there. So long as the first plaintiff resided at Palraadalla he must be asum- ed to have received, enjoyed, and consumed his due share of the fruits, rents, and profits accruing from the vihare endowments. When he voluntarily left Pelmadulla yihare — (for there is here no case of dispossession of the incumbent by another)— it is my opinion that he ceased to have a right to share in and to enjoy the produce of the Pelmadulla vihare lands. The incumbent (or incumbents, if there be more than one) of a vibare has a right to share in the fruits of the endowment only as long as he or they reside in the pansala, and take part in the daily offer' ings and the periodical reading of Bona and other good works required by the laws of Buddha. AbseU' tee priests have no right to damand that the fruits be sent to tfaem to other places. All tbe paddy or coffee or cocoanuts, or whatever the produce may be, should be brought by the cultivators or vihare tenants to pansala store or granary, and there kept as sangika property, and consumed by the resident incumbent and by those of the priesthood who temporarily rtsort to or reside in the pansala. If the produce be more than sufficient for the needs of the residents, it may be sold, and any money received for timber sold or other property alienated should be devoted to the repair and improvement of the vihare buildings, the purchase of books, or the better endowment of the place. I hold it to be sound and settled law that the fruits and proceeds of vihare property may not law- fully be consumed or spent, except by those who are residing at, taking care oF, and performing duties at, the vibare and pansala. These plaintiffs seem to me to have no right to •hare in or to demand an accounting of rents as long as they volantariiy remained absent from the temple. 300 KANDYAN LAW OP PKIESTS AND TEMPLBS. We are of opinion that the plaintiff has not proved that any of the lands mentioned in the sche- dules are private property, which should be dealt with differently from the vihare endowments. We are of opinion that the plaintiffs have not established their light to the accounting tor which they pray. The acion should be dismissed with costs. — 5mjS. Court. Cir. Vol. VI. p, 91. present: Clakence, J. {ist and 2gth June, 1881.) Kandy, 0. R. No. 19,206. Buddhist Priest — Devolution of Properly. Held, affirming the decision ot the Court of Requests, that money saved by a Buddhist priest, tlie incumbent of a pansala, out of the proceeds nf the pansala lands, and by him invested in a mort- gage, passed on hisdeath to his temporalrepresentatives. Private property of a S- '^'^'^ ^^* ^" action by a Buddhist priest priest passes to his tern- upon a mortgage made in favour of plaintiff's prede- ppral successor. cesser in the incumbency of a pansala. Defendant in his answer objected that plaintiff had no right to the mortgage money. At the hearing plaintiff asserted that the deceased priest had acquired the money advanced on the mortgage by the sale of Coffee grown on the pansala land. The commissioner (A. M. Ashmore, Esqr.) dismissed the suit with ^osts, holding that the mortgage passed, not to the mortgagor's spiritual successor, but to his temporal representatives. Plaintiff appealed. No Counsel appeared on the appeal. Our. adv. vult. Clarence, J. — This is an action by the spiritual successof of a, deceased Buddhist priest on a mort- gage made in favour of the deceased priest. Defen- dant has taken objection to the plaintiffs right to sue. The case differs from the case reported Raica-Nathan (1877), 182, in as much as the Commissioner's judgment proceeds on the assump" tion that the money which the deceased priest advanced on the mortgage was acquired by the sale of c ffee grown on the pansala land. I think the commissioner's decision is right. Atemple incumbent »UM THE avnUKH OOTTST dCBOIAB. S(M holds the teinple lands &nb}ect to the duty of making provision out of the revenues for the maint^'naace of the temple. An^^tiring ^l^ich he ^kves out of revenues and dies possessed of passesj I think^ to his legal repre^htative — that isj the person who wofidd be his legal representative were he a layman^ In my opipion the current of modern decision points to ^hat tondusion. See 34, D. C' Matara— ^Morg. Dig., aSi ~-*2>743> C. Ri Kegalta— So^lomons 0. B, AppSj pt. I, p. 10. My brother Dias, \vhom I have consulted, ii of the same opinion.' Appeal dism,Uie(t-r8up. Citurt. Oir, Vol. F.^. 61. 302 EiLNCTAK lAlf Of BAJAEUIIA SESTIOI. CHAPTER V. ON RAJAKAEIA. Section 1. (Frpm the Service Tenure Cofnmissionfifs' Bfipprts.) 1. What is meant by Bajakaris. What ia meant by i. The term RajakarU, {Service Tenure) Ht Kajakaria. terally means, " King's Service :" but it is generally applicable to services of all kinds. — whether to thp State, Church, or Chiefs. * Section 2. (Different kinds pf villages.) I. Principal villages to which Rajakaria has t^ be performed. — 2. Minor villages palled pangu or shares. Principal villages to ,, The villages or gavi, to which Eajakaria has which Raiakana has to ,,„ u t _ j u- a r .u i • j be performed. ^° "^ performed, are chiefly of three kinds,— , (a.) Gabadcigam, (Royal villages), (i.) Viharagam, and I)m'afaffam,(temple villages); oj- in other words villages belonging to Buddhist monasteries "Vihara," and Hindu temples "Dewala^' (c.) Dfindagam., (villages of chiefs or of extensive landed proprietors). These last either were tljs ancestral property of the chiefs ,','pravenigam'', or were originally royal villages bestowed from time to time on favourites of the court upon Sarinases or otherwise. ; — Ser. Ten. Com. Bep for i8"o. /)• 2. f Minor villages called a. Besides these three, there are other ^mailer pangu or shares. ones known as office pangu ; such as, ''yidan^garapan- gu", "Lekamgampangu", "Kankanamgampangu", "Gallatgampangu", ." Mii umgampangu", " Kuruwe- gampangu", " Multengegami'arigu" and f Atapattu- gampangu". — Ser. Ten. Lorn. Bep fof i872. Pfirt. iii. P< 44^ * See D'Oyly's Notes, p. 2.— Mar. Jy.dg. g. 299.— Thorn. Inst. Vol n. p. ^98. ~ " ' t See Mar. Judg. p. 299 § lO.—Thom. Inat. VqI IZ. ^.600. »B,OM THE SEBVICB TE^UMS .COMMISSION. 303 In these pangn or shares the tenants are placed hy the prpprietor of the yillage.— /Ser. Tm. Oom. Mep, for j8 J 2, Part, iiu p. 4^3, Section 3. (Bif event kinds offarrns or pangii.) ^. Prevenipangu.— 2. Marawenapaogu. In ajl these kinds of villages or gam^ there are two species of farms, allQtmems, or holdings, called a pangua.— 1. A prayeni pangua and 2. A maruwena pangua. I. A. prevenipangiia is an heriditary holding* or an allotment of land in a temple or ninda village held in perpetuity by one qr more holders subject to the performance of certain services to the temple or ninda proprietor, f The only praveni tenants were those who were on the land prior to the grant of the ,rillage to the nind^ lord, or to a vihare or dewale :— Ser. fen. Com. Bep. for 187a Part, m.p. 443. 3. A maruwanapangua as de£ned by the Ordin- ance No, 4 of 1J70 is an allotment of land " held by .one or more tenants-at-will." This definition is Jncorrect ; because, a ''niaruwenapanguaV is a holding given out to a tenant for one year^ the year being the year of cuUivation. It was not the custom to £Ject a tenant at any time during the course of the year. GeneraUy \.h.ese pangu were held on from year to year by the saqne tenants, and of 1 en from genera- .tion to generation by the same family ; but the tenants pever acquired any hereditary .title, had no right to sell, lease ox sub-let,' and were at all times liable to be called upon to give up the pangua on what may be called the annual rent day of ihe estate.-- Sgr. Ten, Cojif. B/ep.for 1872 Part, u'l, p. 443. On this tenure were held most, if not all of the office pangu J such as "Vidani,", '' Lekam", •' Kan- kanam'', '' Minum'', &c., and generally all lands on , ,* /Ser. Ten. gonp. fpr 1870 j?. 3. jj. SoVMan.p, 30, A praveni pangua. Maruwena pangw)^. m tittbikSMw t)» AAfAtfASU axiftenj *rhich tfelpants were placed by the proprietor of tW Village.— ijSifl^; 7«a* ^oW. Ji^^. /or 1872, Part IIL p; 443* Section 4; (Muttettu tdnds.) 1, Ninda iniittettu.— 2; Andant^ttettu. In these estate'?! Certain portions are kndwtf Muiteitu, or Bdnddra lands.' These' ate retained for the use of the palace-, mona«try, or ^nacror-hoase.'^' &r. fen. Cotnikepi/oT 1870. p. a. Muttettu lands' are ehhe. .• — 1 . Ninidd mmiettu of 2. Anda muttettu.- Kind* mutttttua ^« ^ niHdd multeitiid is a fietd ^^hich iS cultfvat- -ed gratuhoCi^ly for the benefit of the proprietor by the person in con<:1d6Mion of the lanlds be possesses. — ISq/. -Muni p. ap. Inda mattetttt. 3. An anda muttettua is a field \^hich is culti- vated by one, on the usual conditiioin orf giving half share of the crop to the owaer. These fiijlds, namely " mattettu", whidh either belotfg to the chiefs or other prop^tetors are givenf out -to teitanta for cultivattioD, and are not worked by the owners themselves. d?hoagh' the season for forking and r«aping the ptodUce «f the lands given out in anda extends over iSeveral mioQths,- it is n6t necessary that there should be a Notarial iustrdmeat to cultivate a paddy field by an andakarayd or tenant at will for half>share to avail in law * a$ he is removeable at pleasure by the ''gamkaraya" (land owaer|.>-/So/, Man. p< id. * See No. 81172. C. B. SioMd/g, per Commissioner Diokson, recognised by the Supreme Coarb in No. 31530 C. Jt.lSan3y, asa" soand and able exposition of the lav" OB that snt^jelit.'iMSee alio D'Oyl^'t NotM, p 4,— Jlfar. Judg. p. 304. fRUM TUE SERVICE TENURES COMMISSION, 305 Section 5. {Different kinds of Service.) 1. Services of a gabadagama.— 2. Gabudagam eervioa abolished.— 3, Compulsory labour abolished.— 4. Services of a. Vihara or Dewalagama iu genera!.— 5. Services of a Vi- haragama in particular.— 6. Services of a Dewalagama in particular.— 7. Services of a Nindagama in particular. Services may be divided ioto, — 1. Gabadagam service, 2. Vihara or Dewalagam service, 3. ^indagam service. 1. Services of a Galadagama originally consist- ed in procuring rice to the "gabadawa" or the royal store or treasury fating the produce of the muttettu fi Ids which the tenants had to cultivate gratuitously in consideration of the other lands in the village to which they are entitled to as their praveni property.* 2. This waF, however, practically nullified by orders from the Secretary of State to the local Gov- ernment to give up all claim to service from the tenants of the royal villages and to recover from them for the Crown only the same share of the produce of their lands as was recovered from those who held under the feudal tenure.— Ser. Ten. Com. Bep. for i8/o. p S- 3. The feudal services and dues were commu- ed for a land-tax or ground-rent by Proclamation of ais^. November j8i8. The tax was generally fixed at one-tenth of the produce of rice-producing fields; but in certain loyal districts it was reduce to one-fourteenth, while in disloyal districts it was fixed at one-fifth. Bu', though the feudal services were thus commuted in 1818, the Crown reserved to itself the right to call out labour for certain public purposes — on payment at certain rates fixed by the officers of Government, and not with the consent of the inhabitant?-^and for the making of the road?. It was not till 1832 that the claim to compulsory service was fully abandoned by the Crown. — Ser. Ten. Com. Bep. for 1870./). 5.f * See D'Oyly's Notes, p. 3.— .Jlfar. Judg. p. 298.— Thorn. Inat. Vol. II. p. 600. t See Note on page 5 of Ser. Tern, Com, Bep. for 1870, Services of a Gabada- gama. Gabadagam abolished. Compulsory abolished. labour 306 KANDYAN LAW OP HAJAKARIA SERVICE. ' Services of a Vihara or Bewalagama in gene- ral. Services of a Vihara- gama in particular, 4. Services of a Viharagama and Vevalagama are only distinct from that of a nindagama by the former being performed either to a Buddbist monas- tery or Hindu temple in the Island and the latter tea private proprietor. These services are of every imagina- ble kind— some simply honorary, some of the most menial and laboriousdescripliGn,the lighte.st being usu- ally paid most highly, while the heaviest are generally rewarded by enough land to afford only a bare subs- tance, and precisely the earae sei vices are often paid in the same village at different rates : for instance, for sixty days' service in the kitchen, one man will hold an acre of land, another two acres, and a third, only a few perches. In fact tho' services have be' come attached to the land in the course of many generations, according to the pleasure of many land lords, and to the varying necessities of many tenants. Large farms have been bestowed on younger branches of a house, on the condition of a mere nominal recognition of allegiance. A family of faithful servants has been liberally provided for by a grant of part of an estate in full belief in the continued faithful performance of the customary service. In times of famine or scarcity, starving supplicants have with difHculty obtained from a landlord a small plot of land barely sufficient to maintain life, and, in return for it, have agreed to perform heavy and laborious services. Again, the tenant having originally no right in the soil, some landlords have in times past arbitrarily divided the original allotments into two or, sometimes, four portions, requiring for each sub- division the whole service originally required for the entire allotment, thus raising the rents sometimes two-fold, sometimes four-lold. — Ser. Ten, Com. Rep. for 1870. p. 5.* 1;, Ihe tenants on estates belonging to the Buddhist monasteries (called Vihara) keep the build- ing in repair, cultivate the reserved fields, prepare the daily offcricgs of rice, attend the priest on jour- eys, &c. A remarkable case of religious toleration, which has become known in the course of Service Tenures enquiry is perhaps deserving of mention. * D'Oyly's Notes, p. 16.— Saw. Dig. p, 24. 25.— Mar. Judg p. 299,— Thorn. Inat. Vol. II.p. 600.— Sol. Man. p. 2d.m^Au>iin. Bep. p. 112.— (?a«s No. 19736 D. 0. Kandy. JEOM THE SERVICE TENURES COMMISSION. 807 The tenants in the village Rambukandana, belong- ing to the ancient monastery of Bidi Vihare, are all Mohammedans. The service which they render to that establishment is confiined to the payment of dues and the transport of dues, &c,, and has no connection vifith the services of the Buddhist Vibara, and their own Lebbe or priest is supported by a farm set apart by the Buddhist landlords for that purpose. There are thus Moharamedan tenants performing without reluc- tance service to a Buddhist monastery, and that monas- tery freely supporting a priest for its Mohammedan tenants. The head of this monastery has, from its foundation, been a member of the Tibbotuwaw^ fami- ly- This is the most important of the numerous private livings in Ceylon. When one of these becomes vacant, before one of the family to which it belongs has been ordained, here, as in England, a temporary incum- bent is put in, who generally serves as tutor to the young heir. — Ser. Ten. Com. Eep.for iSjo p. 9. 6. On the Bewala lands, the service is most Services of a DewaU- complicated and peculiar, the part which each ten- gama in particular. ant has to take in the annual processions being mi" nutely defined ; and it is to this that the popularity of the Dcwale service is owing. The processions afford the ordinary villages the only opportunities for a Ifeneral gaihering, and for taking part in a pageant and a show, and above all it is on these occasions that the social distinctions to which the Kandyans attach great importance are publicly recog^nised.*— Ser. Ten. Com. Bep.for 1870 j5. 9. * The most celebrated of these processions is the Ferahera, which takes place at Kandy in the month of Madia (July— -August), commencing with the new moon in that month, and continuing till the full moon. It is- a Hindu festival in honor of the four deities !Natba, Vishnu, Kataragama (Kandaswami), and Pattini, who are held in reverence by Buddhists of Ceylon as deviyo who worshipped Gautama, and are seeking to attain Nirwana, In the reign of King Kirtissri (A. D. 1747— 1 780^, a body of priests who came over f i-om Siam, for the purposes restoring the Upasampada ordination, objected to the observance of this Hindu ceremony in a Buddhist country. To remove their scruples, the King ordered the Dalada relic of Buddha to be carried thenceforth ia procession with the insigaia of the four deities ; never- theless, the Perahera is not regarded as a Buddhisb ceremony.— I^ofe fo (S'ei*. Ten, Com.Bef. of 1870 p. 9. 808 KANBYAN LATT 01 KAJAKARIA SEETIBB. Services of a Ninda- gaiiiai iu particular, 7. On the estates of tlie chiefs and large' land owners (Nindagam) the sei vices, as already indica- ted, are of the greatest possible variety. Chiefs and Mudiyanseld perfoitn various honorary services. Wellala tenants cultivate the home farm, accompany their lord on journeys, take their turn on duty at the raanor-house. Duray tenants carry baggage and the lord's palanquin, while the Wahurapuray carry the palanquins of the ladies of the family, and also provide for the service of the kitchen; and though there is a complete absence of equality and system in the remuneration given for domestic 8er\i-ces, all such services are provided for with the utmost care. A chief with several villages will draw his cook or bis bath. boy for two or three months a year from one village, from another for four month?, from a -third for one month, &c., carefully arranging to have one on duty throughout the year. There are the potter to make tiles and supply earthenware ; the smith to clean the brass vessels, and repair and make agticuL tural implements j the chunam-burner to supply lime ;' the dobi or washerman, the mat-weaver (Kinoaraya)- and the outcast Rodiya.who buiies the carcases of animals that die on the estate, and supplies ropes' &c., made of hide and fibres. Olheis supply pack- bulloks for the transport of the produce of the fields, and for bringing supplies of salt aud cured fish from the towns on the coast. — Ser, Ten, Com, Bep- for 1870/1, 8.* Rajakaria prescribed after 10 ye*rs' nonper- formauce. Section 6. (From Marshall's Judgments.) 1, Rajakaria prescribed after ten years' non-performance. I. The question has more than once arisen, whether the prescription for land, foanded on ten years' possession, be applicable to services claimed by owners of villages in the Kandyan Districts and re- served to them by the Proclamation of la April 183a. In an action by a Ninda proprietor for seiyices which. be claimed from the Defendant as his tenant, but; ■ * See B'Oyly'8 Notes, p. 3, 15. 16.— Saw. Dig. p. 24— ZQ.'-^Mar. Jwdg.p. 299.—nom. Inst, Vol, 11 .p. 600, fROM MAKSHAIiL's JUDGMENTS, 309 which the latter denied his liability to perform, it appeared that the services now claimed had not been performed since i8ig. The D, 0., however, consir dered that the plaintiff had established his claim, and decreed in his favor accordingly. The S, C, on ap- peal, referred the proceedings back to the D, C, in order that the question might be considered how im the clailm of the Plaintiff was barred by prescription, at least as regarded those services which it appeared had nol been performed or, it might be presumed, exacted, since the institution of the grain tax in 18I9, yhe Proclanjation of 18 September 1819 {establish- ing the periods of prescription for the Kandyan Pro- vinces] Had been held by the S. C. to bar actions for the enforcement of services, or to recover posses- sion of Und for refusal to perform them, jyhere it had appeared the party claiming them had allowed t^n years to run, witho,ut demanding thp perfor- mance of them. Indeed if this Proclamation did not apply to such cases a tenant might be called upon to perform service to the Ninda bolder though a hun- dred years might have elapsed, without any such de<- mand being made on the tenant or his 3nces- tors. No. 7190, Ratnapura 31st December 1834. Ths writer is unable to give the result of the inquiry thus^ directed to be instituted, as regards this partcur lar case. But he refers the reader to No. 493, Kandy, 19th Novemher 1833, and he believes that other cases may be found in which the S. C, decided that actions for these services fell within the term of prescription limited to actions for land,— jjfar.- ^udg: p, 526. § 10. Section ?• (From Morgan's Digest.) 1, Nilarpropriptor's right to oultiirate the land on pay- m.eiit of the nsual fee, or perforoiance of the ac^iustomed services. — 2. Land.-lord cannot eject a tenant io a summary way. — 3. Tenant may be ejected on hi? failing to pay orperr form Bajakaria, I, The Nille-proprietor may assert his right to Nila-proprietor's right cultivate the l.and on payment of tb^ us|ial fees and ^° cultivate the land on perfojroapce of the a9ci}stomed services ; and the P^yoent of the usual pwner ha« no right to eject any such tenant but o^ 'Z Vcu« Vr! pjegr proof of his Rpt pacing guoli fees or not per- yipes. 310. KANDJAJl LA,W or BAJAKAEIA SERTIBB. forming the usual services. And a Court of Equity will generally relieve against a forfeiture for nonper- formance of a con4itioin or covenant of a Lessee, where compensation can be made. As to the custom of succeeding or incoming ten- ant being entitled to the crop of the land when he tJkes possession, and the argument therefrom that a party who had been ejected from the land previous to the expiration of his term, could have sustained no hardship thereby as he must have himself in like manner enjoyed the produce of the crop of the pre- ceding tenant. Held that such custom obviously ap- plies only to those cases where the last tenant has occupied the land for the full period of his term, viz, one year, according to the accustomed tenure. No. 794. D. O. Batnapoora, (G.) M&rg: Didg: p. 100 § 406. Laud-lord oannot eject 2. Where a party, a Disava,. claimed the power a tenaat in a aummary " to turn out the Nille holders of his estate whenever way. he pleased," the Supreme Court refused to recognize suoh preten;sion ; and as the tenure of the lands in question was ai by whom it was disposed of to def,endant, govern- ment having the power of resuming possession of such service lands whenever it pleases, on dispeiisitig with the Service for. Which It was held. Affirmed JBI appeal, March 2, 183;. — Austin's Rep: p., 3^, 3w Kandy Z?. G. No. ipiT^6. — The folloituring is the judgment of the Oourt below. '' la this case,= plaintiff as the present Diewa N'ilame of the Mali- gawa, seeks to eject defendant' ffom certain lands held by him at the village Angodia, alleging that the defendant holds these lands as a tenant of the Mali- gawa, and that the services which he' was bound ' to render in respect of such lands he has faileif t6 pfefJ form. Plaiati£f also claims £ 4-16 as datnagesi De^ fendant admits that he is bouod'to fender somn oi the services raentioaed in the Libel, and that h& did always perform them. One descjiptioa of service however (felling of timber for the repairs of the Ma« ligawa), he alleges he is not bound to perform. The Court however believes the evidence of plainiifif and his witnesses. It is apparent that defendant by his neglecting to perform these services^ has rendered himself liable to be ejected from the lands, and baa also cau-ed damage to plaintiff to the extent claimed. It is therefore decreed that defendant do pay, such damages, and that in the event of bis again failing to Crown has a right io resume possession of service parveni lands Whenever it pleases. Diewa Nilame cannot in the first instance eject a tenant for non- performance of service. 31? KANMAN LAW OF KAJAKABIA SERVICE. A preveni tenant of a temple cannot be ejected at the first ins- jtanoe for non-perfor^ mance jof service. Baanaika cannot eject ^ preveni tenant for non-performance of ser- vice. Tenant at will cannot be ejected at the first instance for non-perforr mance of service. perform all or any of the services enumerated in the Libel, he shall be ejected therefrom.'' In appeal affirmed, " except so far as to future forfeiture," — Collective, ^uly, ^ i8?7, — Austin s Rep. p. iia, 3. South Gomt, — No. 14,560. — This wa.s aij action by the Incumbents of a Temple to eject Ae- ^njdant, who they stated was only an Andakarea, or pne who cultivated in .consideration of receiving 3 pertain share pf the produce. The Onurt however found that he was a Paraveny NiUakaraya or tenant ia perpetuity, and as such entitled to hold the lands subject to certain services which were admitted by him. Claim dismissed. In appeal the following was added,—" the defendant to be liable also on any second instance of refusal to perform the above serT vices, to be ejected from the said lands."— Per Carr, October, 4 i344; — Austin's Bep, p. 60. 4. South Court. — No. 14,242 — Plaintiff sued a " Basnaika Nilamp (Chief of a Dewala) to recover possession of a certain paraveny land, for which ser? vice was due to the Temple, and from which he had been forcibly ejected by defendant. The latter in his Answer stated that ihis land was not a paraveny land as alleged by plaintiff, but was a Bulatsurulla Pan- gua (land held by paying a certain fee to the Head of the 'remple.) and that jt could be taken from the pos- session of the tenant at any time the Basnaika chose. Plaintiff denied this, but defendant established his Statement by evidence. The Court however was of opinion t^at the Basqaika could not displace or eject 9 possessor or pultivatpr of land subject to Templer gervicp, unless there be a failure in the performance pf such service. Judgment for plaintiff, and in ap.. peal affirmed. Per Oliphunt, January, 39 1844. — Auslfri's Bfp. p. 59. 5. Kandy D. 0. No. 29,474. — Plaintiff as in*- eumbent of a certain temple, sued to eject defendants from certain lands belonging to the said teitiple, and for damages for services which they as ten" ants failed to render. Defendants admitted that they were subject to perform service to the temple, that they did so perform, and that even if they failed they were not liable ^0 be ejected. The Court found that they had failed, and in condemning them in da? jjiages remarked " that it would not in this instanpe PROM Austin's appeal heports. 313 eject them from the premises, but they are warned that in the event of their being again in default, it will do so peremptorily," In appeal a^m^rf. Col- lective. November, 30 i^s^-— Austin's Bep p. 213. 6. KandyB. 0. No. 1,188— Plaintiff being a Tenant at will of a mere tenant at will of the Chief Priest (the defew temple may be replaeed dant,) cannot claim to be possessed of any of the pro- ^y >'* land-lord. duce of the garden in question. Admitting that it was placed in his charge, for the sake of improve- ment (which however is not proved,) there is nothing that should prevent the official proprietor for the time being from transferring it to other hands at his own will and pleasure. If Plaintiff intended to ac- quire a more permanent interest in it, he should have taken care to obtain a suitable deed to that effect from the defendant's predecessor from whom he alle- ges to have received the land. In appeal affirmed. Pj^S,ougk. August, 16 1834,— Austin's Bep. p 12, 7. South Court. Kandy No 13,832. — Plaintiff Tenant of a tempi* sued for certain lands which he alleges his deceased land cannot maintaia father possessed by performance of service to a cer- *° action without join- tain Temple, and obtained judgment for the same in »°8 incumbent prie»t. the Court below. In appeal reversed, — " the suit must abate for want of the incumbent of the Temple not having been made a party. The assessors are unanimously of opinion that a party holding lands in the manner claimed by the Libel, cannot maintaia the suit without the Priest's being cited for his in- terest of joining in the suit."— Per OUphant, Janw ary, 19 1841. — Austin's Bep. p. 55. 8. Kandy D. C. No. 37,857. — Plaintiff Ca Bas- Burden of proof whers naike Nileme) brought this action on behalf of a there is a diflferenee ef certain temple to eject defendant from a certain land, opinion aa to the nature the possession of which he had wrested from a ten- " '®°*'"'y' ant at will of the said temple. Defendant admitted that the land was subject to the temple, but alleged that it was his hereditary property, and that so long as he performed the customary services, he could not be ejected therefroiE, The Court below held that the burden of proof was on defendant, but his Coun- sel having refused to call evidence, judgment was entered for plaintiff. In appeal reversed, '' the Su- preme Court being of opinion that there is no ad- mission in the pleadings or examination of defetr- dant, which would justify the District Judge in r«- 314 KANDYAN LAW OF EAJAKARI4 SERVICE. lieving plaintiff from prof of this case, and calling on defentiant to begin." — Collective. January, 23 1857. — Austin's Tiep. p. 198. Uajakaria prescribed 9. Kandy D. C. No. 493, — This was an action after ten years' adverse fcy a Ninda proprietor for services which he claimed posaession. ^^^^ jj^g Defendant as bis tenant, but which the latter denied his liability to perforui. It appeared that the services now claimed had not been performed for upwards of ten years. The Supreme Court de- cided that the Proclaraaticn of the 18 September 1819 barred all actiuus for the enforcement of ser- vices, or to recover pcssefsion of land for refusal to perfoiTO them, wliere it had ap) eared that the party claiming' them had allowed ten years to run, without demanding (he perforrr.ance of tbem. * — November, ^9> 18.35. — Austin' i^ep. p. 6, Section 9. Tenant of a Nilapan- gua can be ejected for non-performance of ser- ivce. (From Beven and SieheVs /Appeal Reports.) I. Tenant of a Nilapangua can be ejected for non-per^ formance of service, I. Plaintiff as, the proprietor of the Ninda Pillage " Paldeniya", complained that the defend- ant, who was his teqant, failed to perform certain services for three years, and prayed for damages, and tp ej^ct hinj from a field, which he held as a NiUai pangua. The defendant denied that he was a tenarit of the plaintiffs, and claimed the field as his free hold. At the trial the plaintiffs endeavoured to> pvit in evidence deeds shewing his title to the ^inda Village* The foUowiig are the Judgment of the District Court, and the order made with respect to the reception of the deeds. Mr, A-dvocate Selly,, for the defence, contends that tliere is no proof that the plaintiff is the proprie- tor of the Ninda Village in question, or that defend- ant was ever a Nilakaraya ; and that with regard to the nonrperformance of service, the evidence goes tp shew that defendant h^$ acqiiired a prescriptive title. * See Mar. Judg. p.. 526. 315 The defendant has destinctly admitted that plain- tiff is in possession of a Muttettu field in the village Paldenya, and that he has cultivated a particular field called Nigalagaoiapela. The evidence is dear and satisfactory, upon the point, that Paldeniya is & Ninda Village, and that the Muttettua iu question is cultivated by the Nilakarayas. 1 do not consider that it was necessary for the plaintiff to go into the question, as to bow he derived bis title; and I think that the evidence he has ad- duced is sufficient for the purposes of this action. He has been proved to be in possession of the Nin- da Village. The defendant has been proved to be in possession of certain lands in that village ; and be has also been proved and adriiits (although he says it was in anda), that he has frequently cultivated a particular field of the Muttettua. Defendant further admits that he cultivated that very pela about 7 years ago, which brings it to within a year of the time when he is alleged to have ceased to cultivate. A point has been made of the admission that in 1844 a number of the Nilakarayas of this village ceased to perform services. As taken in connection with the evidence, that defendant has never performed any service from the period when he first failed, I do not see the force of this. The plaintiff has nowhere said that the defendant was included amongst those who were sued in the Matik Court; but he has said, that about the time of these cases, the defend- ant resisted and afterwards made StibtilisSidn. Now, this is in no way inconsistant with the evidence of the witnesses, that he ceased to perform service I think the plaintiff has fairly proved his case, and is entitled to Judgment 5 and it is deemed that de» fendant has forfeited his tenancy of the lands in question, and that he be ejected therefrom, paying plaintiff £.6 as damages, and costs of suit.:— Bew •• |- Sjebt Rep.p, mo. A praveny tenant ean alienate hia proper- ty subject to service. 316 kanbtan law 01? eajakaeia seeticb. Section 10. (From Ramanathan's Appeal Reports.) 1. A praveny tenant can alienate hia property sub- ject to Bcrvice. Batnapura. B.C. No. er death ... ... ... .... ... 201 Binna husband ha^ no right to his wife's inherited property through hev mother ... ... ... ... ... 235 mUjPt gupport his phildren, whetljer legitimate or ille- gitimate ... ... ... ... ,,. 211 husband's right to administration of M^ wife's estate, in pre- ference to her other heirs ... ... 216. 21? Brother a Priest, who throws off his robes and returns home, how sup- ported _ ... ... ... ... ... 130 associated, having children of a former single marriage ... 115 quitting the joint connection ... ... ... ... 114 prpperty acquired by one, dying without issue, his estate goes to the surviving associated brotW, to the exclusion of the single brother ... ... 115. 136. 156 Brothers half, having one associated wife ... ... 114. 156 5rciffter's gift to sister irrevocaljle during his life ... ... ... 51 possession of the estate dividedly and undividedly ... ... 123 Buddhist Priest, if only child, succeeds to his f atljier's estate ... ... 282 Priests and Temples, classification of , ... ... ...267 beque^ by incumbent, to cp-pupil ... ... ... 272' could pot possess property except in trust fpr a tem- ple, but now they can ... ... 260.264 have the same rights as lay-men ... ... ... 266 of one sect not entitled to succeed to temple property of another sect ... ,., ,.. 266. 278 325 Page. Bw(id!feis< Priest, private property of ... „, „.. ,.. 265 resident, entitled to maintenance from the profits of the temple ... ... ... ... 269 when there are no pivpils. tutor sujcoeeds ... ... 269 Burden of proof, where there is a difcereiice of opinion as to the uatnre of tenanpy ,,, ' „. ,„ ,,. 313 c. Caste between hiiBhand and wife, if equal, and if not ... ,„ 131 law of inheritance, how regulated, when cagte is the game, and when not, between the parents ... ... ,,. 150 Casual cohabitation, no wedlock ... ... ... ,,, 165 Ceremmty Kandyan, of bathing' the heads of the Bride and Bride? groom on the seventh day after their marriage... ... 107 of delivery and acceptance of Deed ... ... .,,47 of licling the donor's h^nd, pr the giving of a tooth of the donoi' .. ... ... ... ... 47 Oeremontes observed in the consummation of a Eandyau marriage ... 106 f)hild of a, former bed, entitled to his share of his father's estate from the widow of the second bed ... ... ,.. 192 only, of one bed entitled to a, share alike with children of the other beds ... ■•• ••• ... ... 179 Childless ijTdow cannot plaim mainteng-nce from both prwueni and flcgmred property of her deceased husband ... ... 201 entitled to same life-interest as one with children „■ 203 CJvild/ren how legitimatised ... ••• ••. ... ... 143 not prejudiced by the dissolution of thefr parent's mar< riage ... ... ... ... ... 170 pi & Biipnara&TmgiA. daugMee ... ... ... _ ... 123 son will lose their rigjit of inheritance to their grandfather's estate, if their father had not asserted his right thereto before his death ... ,.. 115 deceased Diga daughter, claiming right to a portion of land allotted to their mother by her parents, when she returned home in a state of destitution ... ,,, ... 185 of a deceased father ... ... _ ... ... 125 of a joint connection can claim the share of their deceased father 125 of associated husbands who are brothers ... ... ... 114 of different beds, division of inheritance, jBaferwa?,^ersferpes,* maternal, per capita ... ... 114. 158. 239 of whole blood preferred to children of half blood ... 132.133 (CMe^ew'e debts, parents not liable to pay ... _ ... ...117 right to claim the share of their deceased joint father ...148 to their mother's inheritance derived from the father 187. 188 Pdge. Ctewse of disinhearision necessary to disinlierit le^ai ieif .,. ... S& Community oi goods none, between a Kaudyan husband atid wife ... ... ... 110. 167. 177. 200 Compensobtion, grantee entitled to, if JOeec? revoked. . . 43. 49. 70. 94 Compulsory \ahoit, when and how abolished ; and the institution of the commutation tax in its stead ... ... ...30-3 CoMcttfemajfe, property acquired during, ... '•• . :■■ 117 CovjcMfrme dying without, and leading issue ... ... 117.118.155 property which she is entitled to from her' deceased hus- ■ band's estate ... ... ... 178.201 Consent of eon not necessary to enable father to dispose of his property ... 50 Crmm, when property reverts to ... ... ... 118. 156. 172 Crown's right to resume possession of Service paraveni lands ... 311 Daughter, given out in l)iga by the father, and after his death by the mother, or full-brothers, forfeits her right to her paternal inheri> tance ... 113. 129. 147. 184. 211 by her half-brother, do not forfeit her right of inheritance; but her chil- dren do ... ... ... 12^ ^ving birth to children at home without an acknowledged husband ... ... ... ... 147. 148 if only child of one bed, though married in Diga, will not forfeit her right of inheritance to a share of her father's estate ... 113. 122. 146. 184. 185. 201. 202. 212. 2l3. 214 married in- Binna, has an equal right" with|her brother in her father's estate ... ... ... 147 quitting her father's house before his death to go and live in Diga with her husband, forfeits her right to her paternal inheritance, unless she leaves a child of hers behind _„. 113. 127. 128. 146 in Diga or adopted out of the family, will lose her right Of inheritance to her father's estate, unless she was the only child ... 126. 163 when entitled to her paternal inheri- tance and when not ... 126. 163. 171. l73 only, of a deceased brother, or a Bitma sister ... 114. 122. 147 returning home and getting from father a specific portion offand ... ... ... ...209 destitute, bound to be supported by her brothers ... \ ... 113. 129. 173. 183 unmarried, acquiring property and dying intestate ... 116 who brings disgrace upon her family, loses her right of inheritance in her father's estate , ,,, 129.147 327 Page. Daughters, all children if, tliough married in Biga and no sons, will inherit their father's estate equally ... ... 127. 1 82 before marriaoje, or returuing home from a Diga mar- riage ... ... ... ... 113. 121. U7 must accept the husbands chosen for them by their pa- rents, and if they are dead by their brothers .. . 113. 129. 147 of halfrblood do not forfeit their right of inheritance to their father's estate, though married in Diga 203. 213. 214. 215 returning home from Diga, and marrying in Binna ... ... 182 while they remain in their father's house unmarried, have a temporary joint interest with their brothers in their father's estate ... ... ... 113. 121 Daughter's illegitimate children's right to their father's estate,.. 129. 130 Debt, acknowledgment of, before a Notary and witnesses, sufficient without a Deed ... ... ... ... ... 73 Debts, contracted by a Binna husband, wife not liable to pay, but a Bigfa wife is ... ... ... ... ... 144 incurred by children, parents are not liable to pay ... ... 117 of a deceased person must be paid by those who inherit his or her property ... ... ... 117. 155. 172 Deed, a Kandyan, of sale revocable by. seller, but not by his heir ... 42 admissible in evidence, if it comes from the custody of the claimant under it ... ... ... ... 67 age at which a person could have executed a, in former times ... ... ... ... 69 all witnesses to a Kandyan, need not have been present at its execution ... ... ... ... 26. 28 ceremony of delivery and of acceptance of a Kandyan, in olden tinjes ... ... ... 28. 47 clear proof, just cause, and consent, necessary to disinherit the legal heirs even by a ... 35. 36. 37 necessary to make the last, valid ... 44 containing clause debarring donor from revoking, irreDocaftZe ... 60 containing no clause barring grantor from resumption of pro. perty, revocable "■ ... ... ... 103 correct names of the grantor not absolutely necessary to make a Kandyan, valid if sufficiently described ... ... 48 donor cannot maintain an action upon a, once granted to another ... ... ... ... ••. 69 for assistance to be rendered, revocable subject to compensa- tion for assistance already rendered ... ... 42, 50 for the whole estate revocable ... ... ... ... 69 land, valid for a part ... ... ... 71 from brother to sister, irrevocable during her life ... ... 61 from husband to wife, requires no clause of disinherison... ... 82 grantor can revoke his, whenever he pleases ... ... ... 26 heirs' right to cancel a minor's, ... ... ... ... 29 if not clear, intention must be ascertained ... ... ... 72 if one acknowledges another's title by, he cannot afterwards gainsay or deny it ... ,,. ... ... 67 328 Deed imprication was necessary to make a Kandyan, valid in consideration of past payment irrevocable in contemplation of a second marriage irrevocable invalid, if fraudulently executed ... irrevocable, if for past expenditure, and advance of money lent to the donor minor when can cancel his, minor's, when valid ... must be fully written before it is signed must contain reasons, and must be clearly proved, to disinherit thelegal heir ... modes of revoking a Kandyan, nature of a Kandyan, ... ... ... 27. necessary to disinherit the legal heir no prescription against a revocable, not necessarily void for want of attestation and duplicate number of witnesses which was necessary to make a Kandyan, valid in former times of assistance, becomes void by donor's removal to another's house to get assistance not to be enforced,, where there is no proof of any assistance rendered ... undutiful and. ungrateful conduct on the part of the donee are good grounds for the revocation of a, ... of gift, from husband to wife, for a portion of his estate irrevoca- ble after his death ... requires no clause of disinherison. . . reserving the bulk of the estate, for the donor and his heirs, irrevocable once executed, though nominally, valid owner can alienate his property either by, or otherwise ; and when not reason necessary for the revocation of a, of gift requirements that were necessary to make a Kandyan, valid requires proof, though admitted by the grantor unless it comes from the proper custody,., signed on blank, when was valid and when not Talpot, when admits of proof though containing clause renouncing right of revocation when revocable under Proclamation must be signed, not subscribed valid though not executed, if acknowledged before a Notary and witnesses what was sufficient to make a Kandyan, valid when revoked, donee entitled to compensation 26. 42. 49. grantee enitled to keep possession of land, till compensation is paid, for improvements made, and assistance rendered ,., ... 24. Page, 27. 28 91 80 29 93 29 29 48 36 49 46. 49 31 69 73 25. 46 ... 38 ... 38 80. 82 82. ,83 48. 76 69 25. 30 16 48 66 65 28! 48 80 85 28. 73 ... 48 70. 94 50. 71 329 Page, Deed, who may execute a, ... ... ... .,, ... 4$ written, was necessary to disinherit legal heir, and when not 25. 26 Deeds, all Kandyan, of Gift (except to Priests and Temples), con- ditional or unconditional are revocable by the donor, and when not 4. 41. 42. 43. 49. 60. 66. 61. 74. 81 are usually attested and not signed ... ... 46 of Gift, how they differ from Wills ... ... ... 42 same rules to females as to males in the execution of ... ... 29 to Priests and Temples irrevocable ... ... 42. 43. 49 written, were not common before the reign of the Kandyan King Kirthi Sri ... ... ... ... 45 Deformed sister who marries in Binna dying with and without issue... 137. 167 Descendants, failing immediate, ... ... ... 131. 161 Descending, line of Priests, if exhausted, recourse must be had to the ascending ... ... ... ... ... 294 Dewala, defined ... ... ... ... ... ,., 257 Bewalagama, definition of a, ... ... ... ... ... 302 Different, kinds of farms or ^anjrw ... ... ,., 303. 319 ot Bajalcaria service ' ... ... ... ... 305 of tenants attached to a Temple or Ninda village . . . 320 of villages to which BajaJtaria has to be performed ... 302 Diga, daughter if only child of a man's first, second or third bed, entitled to a share of her father's estate, 122. 146. 180. 201 202. 212. 213. 214 forfeits her right to her paternal inheritance, even if married out by mother or brother after father's death ... ... ... 211 returning home and marrying in Binna ...123. 145. 182 destitute ... ... 173. 183 with husband and getting a specific share of land for her maintenance from father ... ... ... 210 sole heir if brothers and Binna sisters have no issue ... 123 when entitled to her paternal inheritance, and when not, 1 7 i . 173 when regains Binna rights... ... ... ... 209 if all daughters are married in, and no sons .. ... ... 182 vrif e, leaving her husband against his vrishes, not entitled to take her children away without husband's consent ... 168 Dmjifceni, reason and consent necessary to, the legal heir ... 27. 31. 32. 33 34. 36. 37. 62. 64 Disinheriting clause not absolutely necessary to a Kandyan Deed, if donor's intention is clear, and a portion of the estate is only gifted ... ... ... ... 82. 87 Dissolution of marriage, property which tiie wife is entitled to carry away after, ... . . .. ... ... m Distinction between Sisya and Sewuru paramparawa . . . 260. 263 Division, of inheritance, " paternal" per sterpes, " maternal" per capita ; but different according to TJda/rata and Sdbaragomua custom of division ... ... ,.. 144. 178. 180. 212. 213 Page. 111. 143 167. 168 168 118 168 311 25 106 44. 63 63 76 43 38. 40 41. 42 .108 330 Divorce, ground of,... Bsvoroed diga-wife, when entitled to maintenance, and when not... wife, children of a, entitled to their paternal inlieritance . . . contracting a second marriage, and not contracting a second marriage ; but giving up her chil- dren to husband's ' parents after his death in a state of pregnancy Diwanilema's right to eject a Temple tenant, how limited D'Oly's, Notes on Kandyan Law, extvactsiTom, ... 1. Donations, may be made orally or in writing ... 25. of, the last is preferred Donee, dying before donor entitled to compensation, if Deed revoked ... '' Donor, can revoke hig Deed without another, and retransfer lands to a third party, if dissatisfied ^ith the treatment of the first ; and when not his power of revocation... ... ... 38. 39, 40, Dowry, giving of the, after m^friage JVimiZ^/ a separated, has no claim from the estate .,. .,, ... 165 Father bound to support his child whether born in Binna or in Diga ... 211 cannot be taken up for son's debts ... ... ... 117 not heir to the property acquired by his children through their Bm»a married mother ... ,.. ... 134. 153, 225 to the property of his children born in Smwa marriage ... 173 property derived from, goes to half-brothers on the .father's side, in preference to half -brothers on the mother's side ... 157 when heir to the property of his children ... ... ... 181 Father's property, right of children of half -blqod thereto ... ... 132 Feasts relating tq a Kandyan marriage... ... ... .,. 106 Gfa6o(Zayam theirnature, servfces &c. ... ... ... 302.305.316 Ganeswara, ceremony of smashing a cocoanut after marriage in the name of, 107 Gm»ici!-cMdrem their right to their grand-father's estate ... ...130 whether children of a son or a daughter, have the same rights as their parents, over their grand-father's estate ... ... ... ... 147. 155 Grand^daughter given out in Diga by her grand-father, or grand- mother, or uncle ... ... ... ... 11* Gwardiom appointed by widow over her children *. ... ...141 881 H. ragg: ttalf -blood, right of inheritance of children of, to their father's property , . . 119 Half-brothers on father's side, and half-brothers on mother's side ... 119 JTarciy's "Eastern Monaehism", quoted... ... ... 258.264 Heir, his consent not necessary for owner' to dispose of his property ; and when necessai-y to disinherit him ... ... 30. 37 Heirs cannot maintain an action pending widow's life-interest ... ... 221 failing, property goes to the source from which it came ... 171 legal, cannot be disinherited without just cause ... 35. 36 Hindu deities, to Whom temples called Dewala are dedicated in Ceylon ... 257 Horoscope custom of comparing the, of the parties before marriage . . . 106 Husband an associated, dying leaving children by a former bed ... 115 and wife, maintenance ... ... ... ... 205 entitled to hia DigCL wife's acquired property during coverture to the exclusion of her heir's at Law ... ... ... 252 Hot bound to pay wife's debts, not answerable at Law for claims against her ; and when he is . . . ... ' 144. 166 not heir to his wife's landed property inherited from her parents, or acquired by her before marriage . . . 144. 169 when heir and When not to his wife's landed property 111. 120. 178 Husband's surviving, right to his deceased Binna wife's lauded property ... 172 I. Illegitimate children, though of a low-country man, entitled to father's acquired property ... ... ... ... 186 Imprication was necessary to make a Kandyan Deed valid ... ... 45 Incumbent priest, his right to appoint a successor by Deed, and to revoke such appointment ... ... ... 291 Inheritance regulated according to parents' marriage ... ... 162 Irrevocable Deeds, nature of ... ... 49. 58. 60. 86. 91 J. Joint-fathers issue of, and children of their former or subsequent marriage Joint-husbands one quitting and taking a separate wife and leaving issue ... ... ... ... 149 148 K. Kapufala who is. a, ... ... ... ••• .'.. 257 iTiKrede/ieZe presentatioa of the cloth called, ... ... ...107 332 Land-lord cannot eject a tenant in a summary way Lands offered to temples subject to Bajacaria service cannot be disposed of as the owner pleases Law of England, analogy between it and the Kandyan Law, as to heir's consent to dispose of one's property Lease of temple property g'ood, so long as the lessor is alive ... Legal-heir, just cause and reason necessary to disinherit the ... 31. 32 i>icH»ijr donor's hand, ceremony of Line, when the descending of Priests is exhausted, recourse must be had to the ascending ... Low-country-man a Christian, and his Kandyan wife and children also Christians Page. 310 30 30 34 281 35.37 . 47 . 294, . 207 M, JMajTMZpafo, wedding plate, the ceremony of eating from the, .,, ... 107 Magulporuwa ceremony of standing on the plank called, ... ... 107 Majjihema order of a Buddhist priest ... ... ... ... 259 3liyori% age of , according to Kandyan Law ... ... ... 172 Man dying intestate childless leaving no heirs on his father's side, but only on the mother's side ; his widow succeeds to all his property, prawexii as well as acquired ... ,,. 134. 243 no nearer relations than first cousins ; his acquired property goes to them ... ... 137 no widow, but parents, brothers, and sisters only ; Ms property reverts to the source from which he got the same ... 153 no widow, his acquired property goes firsfe to hiamrents ; next to brother's and sisters ; and in their absence, to next of kin ; and if none, to the Crown 118. 133. 153. 156 leaving widow and children , , . 158. 171 JfanW power of husband ... ... ... ... ... 110 limited ... ... ... ... Ul of wife ... „. ... ... ... Ill Marriage, consent of parents when necessary for, and when not ; in the ease of a female, absolutely necessary ... ... 164 consequence of a prohibited ,. , ..,, ,,. .,, 146 333 Page. Marriage, consequences of a Biga and Binna ... ... 163. 166 definition of , in Dijia and Bmna ... ... ... 108 different kinds of , among the Kandyans ... 108.162 dissolution of, effect of a Diga and Binna ... 167. 168. 169 grounds for the dissolution of, ... ... ... 170 illegal, consequences of the same ... ... ... 165 in Binna when takes place ; wife's right over her property, and power over her husband ... ... ... 162 in Diga, husband's right over his property, and his power over his wife ... ... ... ... ... 163 its dissolution and the consequences arising therefrom 111. 167 notice of, by Registrar, if opposed and if not .,. ... 170 requirements necessary to constitute a legal . . . 109 163 the five feasts that were necessary, and what was sufficient to constitute a lawful Kandyan, before the Ordinance 106. 163. 164. Marriages prohy)ited ... ... ... ... ... 109 Marshall's Judgments, exkrsiotB irom, ... ... 2.30.120.260.308 Ma/ruwena-pangu meaning and nature of, '... ... ... 303 Maternal cousin, preferred to paternal cousin in the mother's estate . . . 136 inheritance, daughters, right thereto, ... ... ... 186 Minor can cancel his act or Deed, and resume possession of his property ... 29 if a female ... ... ... ... ... 29 villages called pangu or shares ... ... ... 302 Minor's act when valid ... ... ... ... ... 29 Mistake in an action is no bar to one's right to inheritance. ... ... 181 Mortmain English Statute of, compared with donations to Buddhist temples ... ... ... ... ... 30 Mother heiress to her children's accjuired landed property ; and when to their pravewi property ... ... ... 117. 1 IS 132. 152. 154. 181. 230. 232 ilfo^^r's estate, succession to ... ,,. ... ... 124 JlftweaSZe property, what constitutes ... ... ... 118.171 JlfMffeWit lands, what are ... ... ... ... ... 304 N. J/awaifea order of a Buddhist priest ... ... •.. ...259 Nephews and neices of the whole-blood preferred to nephews and neices of the half-blood ... ... 119. 138. 151. 157 176. 189 Nila proprietor's right to cultivate the lands he holds ,,, ... 309 Nindagama defined .,. ... ... ... ... 302 ffmda-muttettu defined ... ,.■ ••• ■■• ••. 403 Page, Oaths frliat are the fire Kandyan, ... ... ... ... 2< Officiaimff -priest oi a Buddhist and Hindu temple ... ••• 257 Orders into which Buddhist priests are ditided ... ... ... 258 Ordinances extracts from the, ... ... ... ... S]9 Parents and children ... .,, ... ... ... 11- not obliged to pay their children's debts ... ... ... 1 55 who were ]oint husbands, children's right to their estate ... 148 Perahem explained ... ... ,., ... ... 307 Per capita, " maternal inheritance'' regulated, ... ^. ... 145 Persons incapable of inheriting' their parents' estate ... .,.135 Per sierpes, " paternal inheritance" regulated, ... ... ... 145 PoKawdri/, polig'amy aHd concubinage ... ... ... 165.170 Prescripiton against co-heirs ... ... ... 190.220.225 does not run against an heir, pending widow's right in her husband's acquired property ; but it does against his paraweni property ... ... 158. 175 no, in favour of either a daughter or sister returning destitute, and possessing lands belonging to the estate, for any number ofyears ... ... ... 183 oi jRajakaria aevxice ... ... ... 308.314 of shares ovpangu subject to service .., ... ... 320 r reveni pangu de&nei ... ... ... ... 303.319 tenant cannot be ejected in a summary way ... ... 312 priest Buddhist, his private property goes to his temporal successor 282. 300 his right to a share of inheritance from the estate of others, though not from that of his own father's ... ,., 13 Pn'esi if only child, succeeds to his father's estate... ... ,„ 282 incumbent, his right to appoint a successor by Deed, and to revoke such appointment ... ... ... ... 291 of one sect not entitled to temple property dedicated to another sect ... ... ... ... ... ... 278 resident, entitled to rents and profits of the temple ... ...297 throwing off his robes and returning home ... ... ... 130 Priests and Temples ... ... ... ... ... 257 Deed to Buddhist, irrevocable ... ... ... ... 56 PrmcipaZ villages to which jBo/afcarm has to be performed ... ... 302 Private property of a Buddhist priest goes to his temporal successor, , . 282. 300 Property derived from the father goes to half-brothers on ihe father's side, in preference to half-brother's on the mother's side.,. 136 heir to,given to a concubine or prostitute with or without issue ,., 155 subject to Bajaka/ria service cannot be disposed of by the owner without the sanction of the land-lord , , , i . . 30 m Ptoprietdr'g right to dispose of hiia property Subject to service... ... 30 Pupilary 8U(Sti9Ssion, robing necessary for, .,, ... ... 283 Mdjaiearia defined ... ... ... ,., ... 802 lands subject to^ cannot be disposed of as the owner pleases ... 30 .prescribed after ten years' non-pbrformance ... 308.314 JBama?!Wa sect of Buddhist priests ... ... ... ... 257 Jieastm necessary to disinherit the legal heir ... ... ... 52 Revied/y against tenant neglecting to perform service or pay commutation... 320 Remuneration, Deed in favor of a strang'ei- for ... ... ... 33 Revocable, Deed containing no clause barring gi-antor from resump- tion of property ... ... ... ... 103 Deeds, nature of ... ... ... ... 59 Revocation of Deeds, modes ... , , , ... ... 49 JSidtes five in money when given to the dhoby ... ... ... 108 Robing necessary for pupilary succession ,., .,, ,,. 283 s. Saca year of, rule to find out its equal in the christian era So^rag'am. Law, relating to life-interest Sales final, when irrevocable Samane»*a order of Buddhist priests jS'amjrifca property, Buddhist law of, Sannases how provfed, and to whom they descend ... Sawer's X)^esi, extracts from, ... ... ... ! Sects, difEerent, of Buddhist priests in Ceyloil Separation temporary, between husband and wife ... Service paraweni lands, transfer of, valid before the year 1809 Tenure Comfnissibners' Reports, extracts from 302. 303 Services appertaining to Vihdra, Dewala, and Ninda gain in general of a Dewdla-gama in particular of a Ninda-gama in particular ... of a Vihara-gama in pai"ticular Siamese sect of Buddhist priests Signature of grantor was not absolutely necessary, in former times to make a Kandyan Deed valid ; verbal declaration was sufficient ... ... ... ... ... 46 Sister if forced to marry a man of lower caste than her own, owing to brother's ill-treatment ... ... ... ,., 213 ... 33 174. 176 ... 43 258. 259 297 73. 134 27. ]08 257 • • . 169 51 304. 305 ... 306 ... 307 308 306 1 . . 257 336 Page. Sisters of the whole-blood, though married in diga, aucoeed in prefer-. enee to brothers oi the half-blood ... .,. 136. 156 iSjsier'* right to brother's inheritance ... ... ... ... 187 to maintenance from her parent's estate on becoming destitute ... ... ... ... 133. 162. 189 son preferred to bjother's daughter ; and when not ... 135.151 Siayanu sistfa pa/raiwp(ixawa He&ii&i ... ... ... ... 259 Siwru paramparawa defined ... ... ... ... 260 Solomons' Jfawitai, extracts from ... ... ...6. 48. 162. 264 Son acquiring independent property and dying leaving issue and a destitute father "^ ... ,„ ... * 133.152 dying without issue leaving father, his mother's property how dis- poned qf ... ... ... ... ... 132 eldest, has no right to a better share than the other children in the . estate of his parents ... ... ... 121. 145. 171 marrying in Biwna, or adopted out of the family, will not lose his right of inheritance to his father's estate ; but his child- ren wUl, unless he had asserted his right before his death ... ... ... 115. 146. 149. 150 (Sow proving undutiful, and father disinheriting him ... ... 3s iS(ms when bound to pay parent's debts ... ... 117.155 Succession rale of , same to mother's, as that to father's estate... ... 148 to temple property, how regulated ... ... ?59. 294 Temple property if common, the resident priest cannot be sent away without cause ... ... ... ... 280 lease of , good so long as the lessor is alive ... ... 281 auccessiop to, when the descending line i^ ex- hausted, recourse must be had to the ascending . . . 294 Temples lauds offered to Buddhist, and Hindu Dewala ... 30. 264 Tenant how ejected on his failing to pay, or perf orra Bajakaria service . . . 310 of a Nilapangua, can be ejected for non7perf prmance of service ... 314 preuem, can alienate his properjiy subject to seryioe ... ... 316 cannot be ejected by the liana-lord ... ,.• 321. remedy against tenant neglecting to perform service or pay commutation ... ... ... ... 330 Tenant-at:will of a temple, cannot be ejected by the inpumbent priest at the first instance, for non-perfornaance of service 312 cannot maintain an action without jqiiiing the incumbent priest ... ... ..313 may be replace(f by its official proprietor ... 313 Thera wnwamse priest, who is a ,., ... ... ... 259 J'ttomson's Instittiites, extract irom, ,,, ,,, ,,■ 4.45. 14^ 337 Page. Transfer when turns invalid, transferee entitled to compensation for expenses incurred by him on behalf of the transferrer ... 50 Treason convict for, cannot make a WiU ... ... ..,194 Tying ceremony of, the fingers of the Bride and Bride-groom, among theKandyang ... ... ... .,. 107 u. ZTremarried woman dying intestate Tsithout issue ,., .,, ,.,154 f^osampada order of a Buddhist priest... .,, ... ... 258 JTierme children of half-blood ... ... ... 118.132 V. Vendor cannot maintain an action against a third person in his own name, . . 69 Vihara defined ... ... ,., ... ... ,.. 257 yiharagam defined ... .,, ... ... ... 302 Tillages to which Ba/afcana hag to be performed... ... ,,. 302 TTeddiiijf feasts, number and nature of the Kandyan, ... ... 106 Widow admitting a Binna husljand into the house, can be sent away by the children of the first bed ... ... 120.141 and children heirs, when husband dies intestate ... ... 160 phild-less, caimot claim maintenance from both parveny and acquired property of her husband ; bu|; must elect ,one ... ... ... ... ,. 210 entitled to the whole of her husband's moveable pro- perty, exceptiiig the " heirlooms" of the fapiily 119. 141. 159 ■^ leaving her husband's house, entitled to parry away what ... ... ... ... ... 119 dying, leaving children, her moveable property goes to them 161. 171 entitled to her wearing apparel ... ... ... ... 160 to support from her own parent's estate if she return home destitute ... ... ... ,., 159 to the whole of her husband's moveable property in- cluding money ; but not, if the husban4 had left children of a former marriage ... ... 159. 160, 265 if barren, her right to her husband's acgmre(Z landed property ... 120 if second wife Trijih issue ,,. ... .,. „• 159 rage. Widow leaving her husband's house entitled to carry away wHat ... 160 loses her lite-interest, by taking a second husband contrary to the wishes of the family of the first ; by disgraceful conduct; or by squandering the property ... 159. 171. 198 no action of ejectment against; by heir-at-law, so long as she is entitled to her life-interest from the estate. ... ... 191 no prescription against heir-at-law, pending the life-interest of the... ... ... ... ... ... 191 though not entitled to interefet, entitled to maintenance from her husband's mJierifed property .. . ... . ... 250 whose husband has left no issue ... ... 119.171 Widcmer his right to his wife's acquired property ... ... 170 Widiows and widowers ,.. ,., ... ., ... 190 Widow's heir-at-law preferred to her Birma husband in the adminis- tration of her property ... ... ...195 right to administration of her husband's estate ... ... 218 to appoint a guardian over her minor children ... ... 161 to her husband's moveable property limited, if husband died indebted ... ... ... ... 161 to life-interest in her husband's estate and when and how she loses the same 112. 138. 158. 169. 176. 191 132. 192. 193. 203. 246 to mortgage her husband's lands for the maintenance of her family ... ... ... ■.. 161 to the disposal of her husband's lands, when and how limited ... ... ... 120. 138. 141. 159 TTi/e and children quitting the house owing to means of subsistence failing... ... ... ... ... 121. 144 divorced refusing to give up her children to husband ... . . . , 1 68 vrheiD. ia. a, siSiiQ oi pregnancy ... ... ... 168 dying barren, her property how disposed of ... 144. 154. 161. 174^ leaving a sou ; and son dying without issue, father entitled to life-interest ... ... ... ... 132 husband and children, her property goes to her children ... ... ... 154. l^'l entitled to support from her husband, if she is kept against her will without maintenance ... ... ... 222 1 if repudiated by her husband without just cause, entitled to wear- ing apparel ; but if she goes away against his wishes, to nothing ... 07 T^iZr a convict for treason cannot make a, ... ... 11. 94 Witnesses number of, necessary to make' a Kandyan Deed valid 25. 46 presence of all, was not necessary at the execution of a Kandyan Deed in former times. ,,, 25. i7 git eCC C C CO Ce