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Present: Hutchinson C.J. and Middleton J.SILINDUHAMY ct aL v. MOHOTTIHAMY et at.
8—C. R. Ratnapura, 11,323.
Kandyan Law— Children by three beds—Succession among half-brothersand sisters—Per stirpes and not per capita.
A, a Kandyan, who was thrice married, died intestate, leavingliim surviving one child S by his first wife, one child D by hissedond wife, and four children (plaintiffs) by his third wife. Sdied leaving two children (Uefendants). D, who inherited one-third share of A*s estate, died intestate and childless.
Held, that the four plaintiffs were entitled to one-half and t-lietwo defendants to the other half of D’s property.
HE facts are fully set out in the judgment of Hutchinson C.J.
The case was referred to a Bench of two Judges by Van
R. H. Morgan (with him Zoysa), for the plaintiffs, appellants,referred to the following authorities : Sawyer's Digest, pp. 9, 10 ;Per eras Collection, /?. 124 ; Siriya v. Kaluwa ;* 2 Lorensz 27
No appearance for respondents.
Cur. adv. vult.
February 24, 1911. Hutchinson C.J.—
This case was referred to a Court of two Judges by Van Langen-berg A.J., as it raised a point of Kandyan Law on which there doesnot seem to be any authority. Rajapakse Appuwa was entitledto certain land, he died intestate forty years ago ; he was thricemarried. By his first wife he had one child, Setuhamy; by hissecond wife he had one child, Dingiri Etana ; and by his third wifehe had four children, who are the plaintiffs. It was admitted bythe parties in their pleadings that on his death the child of the firstwife became entitled to one-third of the land ; the child of thesecond wife to another one-third ; and the four-children of the thirdwife to the remaining one-third between them.
Setuhamy died intestate eighteen years ago leaving two children,who are first and second defendants. Dingiri Etana then diedintestate and childless. Appuwa’s third wife, Sanchihamy, diedafter Dingiri Etana.
On the above facts, which arc admitted, the plaintiffs claim inthis action that on Dingiri Etana’s death Sanchihamy, the thirdwife, became entitled to the whole of her share, and that they, as
1 (1899) 9 S. G'. C. 4o.
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Sanchihamy’s heirs, are now entitled to it. The first and seconddefendants, the children of Setuhamy, say that on the death ofDingiri Etana they became entitled to one-half of her share and theplaintiffs to the other half.
The Commissioner upheld the defendants’ contention. On appealby the plaintiffs their counsel did not contend that Sanchihamybecame entitled to the whole of Dingiri Etana’s share, but he hasargued that they and the children of Setuhamy are entitled toDingiri Etana’s share in equal shares pet capita.
The question has to be decided by the rules of Kandyan Law, andthere does not seem to be any authoritative statement as to what isthe law on the point in dispute. In Siriya v. Kaluwa1 the majorityof the Court held that by Kandyan Law where-a man dies intestateleaving issue by two or more beds his estate is divided among hischildren pet stirpes and not per capita, that is, they held that eachof the wives was a stirpes. That rule is one by which we are bound,and in accordance with which the parties here agreed that onAppuwa’s death Setuhamy (the child of the first wife) took one-third ; that Dingiri Etana took one-third ; and that the plaintiffs(the children of the third wife) took the remaining one-third betweenthem. It seems to me to be right that the same rule should beapplied now, when the property which Dingiri Etana inherited fromher father has to be divided amongst her half-brothers and sistersand the children of another half-sister who died before her. In myopinion, therefore the appeal should be dismissed with costs.
Middleton J.—I agree.
(1889) 9 6'. G 6'. iJ.
SILINDUHAMY et al. v. MOHOTTIHAMY et al