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Present: Lascelles C.J. and De Sampayo A.J.JAYASHAMY et ■ al. v. ABEYSUEIYA.
172—D. C. Tangalla, 1,178.
Gifts to adulterine bastards—Valid.
Adulterine bastards can now take under a gift or bequest fromthe father.•
rpHE facts are set out in the .judgment of De Sampayo A.J.
Bawa, K.C. (with him Canagaratne), for appellant.—Under theBoman-Dutch law a person cannot give/a donation to the offspringof his adulterous intercourse. [De Sampayo A.J.—Adultery is nota crime under our law at present.] Our Statute law empowers aperson to leave .anything .by will to any one. There is no suchprovision as to gifts.
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H. A. Jayewardene (with him Samarawickreme), for respondents,relied on Wickremanayake et al. v. Perera.1
Bawa, K.C., in reply.—That case only decides that a mothermakes no bastard.
Car. adv, vult.
August 9, 1912. Lascbllbs C.J.—
I entirely concur in the judgment of my brother Sampayo, whichI have had the opportunity of reading. The present case is inprinciple covered by authority. In Wickremanayake et al. v. Perera,1this Court held that the rule of Boman-Dutch law, which prohibitedadulterine bastards from inheriting from their mother, was thelogical result of the fact that under Boman-Dutch law the unionbetween their parents was prohibited and was a punishable offence.Now that such unions are no longer prohibited or punishable, theCourt held that the incapacity to inherit no longer attaches to the-offspring. The principle of this decision is applicable to the presentcase, for it is inconceivable, that the status of adulterine bastards'should be such that they can lawfully succeed ab intestatio, but thatwhen it comes to taking by gift from a parent the incapacityimposed by the Boman-Dutch Itiw’is still in force. But I understandthat in Rabdt v. De Silva * the Privy Council took the view that theBoman-Dutch law with regard to the consequences of adultery hasin effect being repealed by the legislation which is now embodied inthe Marriage Eegistration Ordinance, No. 19 of 1907.
I agree that the appeal should be dismissed with costs.
Db Sampayo A.J.—
The second, third, and fourth plaintiffs are the children of thefirst plaintiff, born to her out of an adulterous connection with oneSuwaris de Silva now deceased. The defendant is the administratorof the estate of Suwaris de Silva, and this action is brought torecover a sum of Bs. 1,500 gifted by Suwaris de Silva to the second,third, and fourth plaintiffs to be paid out of his estate after hisdeath. The defence is that as the children are adulterine bastardsthe gift is invalid under the Boman-Dutch law, which, it is argued,is' still in operation in Ceylon' on this point. The well-knowndecisions on the question of gifts to persons who have lived inadultery and the children of such unions were cited to us. The-effect of these decisions is to set at rest the question as regards thevalidity if a marriage between persons who have lived in adulteryand a gift between such persons under the law .now prevailing inCeylon. I need only refer to the Privy Council decision in Rabdt v..De Silva.2 But it is argued that the children of such unions are-
» (1908) 11 N. L. R. 171.* (1909) IS N. L. R. 81.
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still under the disability imposed by the Roman-Dutch law. Thiswould be a curious result if well founded, because it would be topunish, as it were, the victims of persons whose misconduct the lawcondones. In my opinion the law is not so unreasonable. All thedisabilities in question" under the Roman-Dutch law, includingthose of adulterine bastards, are a consequence of the policy whichregarded adultery as a crime, and marriage between adulterouspersons as invalid; and as that policy is found no longer to exist inCeylon, all the consequences thereof have also disappeared with it.This, I think, is the true significance of the decision of the PrivyCouncil. This certainly was the view taken by this Court inWideremanayake et al. v. Perera,1 which, I think, covers the pointnow raised. But it is contended that that decision does not apply,because there the question was as to the right of the children tosucceed to the mother by inheritance. The ratio decidendi of thatcase, however, is much wider than contended for, and the decision,in which I venture to say 1 entirely concur, is an authority for theproposition that adulterine bastards can now take under a gift orbequest from the father. I think the judgment of the DistrictJudge in this case is quite right, and I would dismiss the appealwith costs.
JAYASHAMY et al. v. ABEYSURIYA