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Present: Mr. Justice Wendt.
UKKUHAMY v. BALA ETANA et al.
C. R., Kandy, 15,862.
Kandyan laid-—Devolution of property of deceased Kandyan man—Con-test between mother and brothers and sisters—Preferent right ofmother.
Where a Kandyan dies unmarried, intestate, and without issue,his acquiredimmovable property devolves on his mother(the
father being dead) in preference to his (deceased's) brothers andsisters.
PPEAL by the defendants from a judgment of the Commis-sioner of Requests, Kandy. The facts are fully set out in
R. L. Perera, for the defendants, appellants.
H. Prins, for the plaintifi, respondent..
Cur. adv. vvlt.
May 26, 1908. Wendt J.—
The only question left by the parties to the Commissioner at thetrial was whether the acquired immovable property of a Kandyanman dying unmarried and without issue is inherited by his brothersand sisters as the plaintiff contended, or by his mother (the father
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being dead) as contended by defendants. The mother, who is nowdead, has conveyed the land to the defendants, who are two of herdaughters, sisters of the propositus. The plaintiff claims to beanother sister, and apparently holds a conveyance from a fourthsister. The learned Commissioner held that the mother took a usu-fruct only in the lands, and that that usufruct having now beendetermined by her death, defendants could have no title to the lands;that is to say, presumably no title under their mother’s conveyance.There is nothing to show why they should not inherit jointly withtheir sister, the plaintiff.
It is recorded by the Commissioner that plaintiff’s proctor reliedon Bungappu v. Obias Appuhamy,1 and defendant’s proctor onUkkurala v. Tillekeratne,2 but neither of those oases embodies anauthoritative decision. In the former it was not denied that thedominium in the intestate’s acquired lands had passed to his brothersand sister, and the contest was, whether the mother had only aninalienable right to maintenance, or a life interest which she couldconvey to another. The mother was living and had conveyed allher interest to the defendant, who claimed that, in the partitionthat the Court was making, the life interest should be allotted tohim. In Ukkurala v. Tillekeratne the only question submitted tothe Court was whether the property in question should be regardedas the paraveni or the acquired property of the intestate owner, itbeing expressly admitted that in the latter case it passed to themother in preference to the brothers and sisters. The Court was notasked to decide, and it expressly refrained from deciding, what wasthe nature of the right acquired by the mother. The only othercase to which counsel directed my attention was that of Punchiralav. Dingiri Menica,3 where the question was, whether the motherwas sole heiress to the paraveni lands of her child who had died un-married and without issue, as against the father’s sister, there^ havingbeen no brothers or sisters of the intestate. Lawrie J. (Dias A.C.J.concurring) held that the mother was sole heiress, and he quotedwith approval the judgment of the Judicial Commissioner’s Court ina case decided on September 7, 1824, in these terms: “ The chiefsafter due deliberation gave it as their unanimous and unqualifiedopinion that a mother is the heir of her only fatherless child dyingwithout issue, however the property the child dies actually possessedof may have been acquired, whether it shall have been the paraveniproperty of the child’s father or accrued to the child in any otherway, and that to the exclusion of the child’s father’s family. ” Itappears to have been contended in the case of Punchirala v. DingiriMenika, upon the strength of the passage in Sa/wera’ Digest, p. 8.,repeated by Sir Charles Marshall, p. 338, paragraph 79, that themother’s interest was only a qualified right of life rent in her child’s
Him) a Browne 886.H188S) 6 8. C. C. 48.
»(i888) 8 S. C. C. 186.
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property, but Lawrie J. expressed the opinion that Sawers was inthat passage dealing with the case of a mother’s rights when herdeceased child had left full brothers and sisters; that is to say, a caselike the one now before me. Mr. Justice Lawrie then proceeded tolay it down as clear law from the Niti Nighanduxoa and Armour thatthe mother was sole heiress of her child, but that if the child left afull brother or sister, he or she was entitled to the deceased’s shareof his paternal paraveni land in preference to the mother. I do nothesitate to accept Che authority of Sir Archibald Lawrie, and if thepresent were a case of paraveni property, that would conclude thematter. The question is, whether a different rule of successionapplies in the case of acquired property. The passage at page 15 of theNiti Nighanduwa, in stating that the mother “ inherits the property ”of her children, does not make it clear whether or not the absence ofbrothers and sisters is contemplated, while the passage at page 105,by giving the paraveni lands to the mother, implies that brothers orsiBters do not exist. The passage at page 113 expressly postulatesthe absence of brothers and' sisters, and in those circumstancesallots even the paraveni lands to the mother. Those passages thenmay be taken to declare that, When there is no brother or sister, theacquired property devolves on the mother. The passage on page 8of Sawers (Campbell’s edition) deals with the case in which all thedegrees of relationship are represented. In that case the heirs tothe deceased's landed property (no distinction is made as to paravenior acquired) are 6aid to be first the father, or if the father bedead, the mother, but this for a life interest only; next the brotheror brothers and their sons; and next the sister or sister’s sons. Butat page 17 Sawers states: “ the assessors unanimously state thatthe mother is the heiress to the acquired property of all kinds of herchildren dying unmarried and without issue, and that the same isentirely at her disposal, but should she die intestate, the propertywould go to the brothers and sisters of the whole' blood equally.That is a clear and unequivocal statement. Armour (originaledition, pp. 16 and 130; Perera's edition, 85) states the law to be thatthe mother is sole heiress to her child who had survived his fatherand died without issue, and left no full brother or sister, in respectof every description of property. “ But, ” he continues, “ if thedeceased child left a full brother or sister, that brother or sister will beentitled to the deceased’s share of his or her paternal paraveni landin preference to the mother. ” Nothing is said in that event aboutacquired property. The language therefore clearly implies that inrespect of that class of property, the mother’s rights would remainas previously stated. The point is, however, put beyond doubt bya later passage in Armour (original edition, 131; Perera’s edition, 87),which is in these words: “ If a man died without issue and intestate,that portion of his landed property whioh had belonged to himindependently of his father, for instance, lands which devolved to
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him from his adoptive father, and lands which he had received as agift from his maternal uncle, will devolve absolutely to his mother inpreference to his brother and sister, subject nevertheless to hiswidow’s claims thereon.” That refers to acquired property, anddeclares the mother’s right in preference to that of brothers andsisters. Again, Armour (original edition, 132; Perera’s 88): " Themother is heiress to the acquired property of all lands left by herchild who died unmarried and without issue and intestate, and suchproperty will be entirely at her disposal.”
As to the extent of the mother’s interest in the acquired property,we have, in the first place, the Niti Nighandwwar8 statements thatthe mother will “ inherit ” and that the property will “ devolve ”on her. Strictly interpreted these terms import acquisition of thedominium. In the next place, we have Sawers’ dictum that themother “ is the heiress to the acquired property of all kinds, and thesame is entirely at her disposal,” followed by Armour’s impliedstatement that “ the mother is sole heiress,” and his express declara-tion that acquired lands “ will devolve absolutely to the mother.”Those passages are unequivocal- Lastly, we have in apparentconflict with these, Sawers’ general statement (page 8) that themother’s is a ” life interest only, or on the same condition as sheholds her deceased husband’s estate, which is merely in trust for herchildren,” which, I agree with Lawrie J. in thinking, refers to para-veni property, when there are brothers and sisters; and Sawers*statement at page 13 that the property which a man dying childless,but leaving parents and brothers and sisters, had had from hisparents, reverts to them reciprocally, and " his acquired property,whether land, cattle, or goods, to his parents; but his parents haveonly the usufruct of the acquired property, they cannot dispose of itby sale, gift, or bequest, it must devolve on the brothers and sisters
ultimately it is divided among the brothers of the whole
blood equally ” This statement of the law. is not adopted
by the later writer, Armour, but Sir Charles Marshall takes itover almost verbatim (page 344, section 96), and without comment,although at page 338 he notes the contradiction between thepassages at pages 8 and 17 of Sawers. Indeed, his purpose was notto present to the reader a consistent body of Kandyan law, butrather (as he states at page 366 of his ” judgments ”) to collate thebest authorities which these two gentlemen (Sir John D’Oyley an.dMr. Sawers), with all their advantages of situation, were able toobtain on the various points of inquiry submitted by them; theymay safely be consulted, unless and until they are controverted.It is only by controversy that erroneous position will be set rightand doubtful points depided, and the best way to invite''contro-versy on such points is to give the utmost possible publicity to thenotes, which at present form the only ground on which discussioncan be maintained.
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1908. If there be a conflict between the authorities as to the claims of theMay 98. mother and of the brothers and sisters, I think I ought to give theWkndt J. preference to the mother, as the nearer relation in blood. Theinstance in which she is postponed to the brothers and sisters iswhere the principle operates of inherited lands reverting to thesource whence they came. That principle, of course, does notaffect “ acquired ” lands.
I decide in favour of the mother, and hold that she inheritedabsolutely and exclusively the acquired lands of the deceasedSellappu. It follows that the lands passed by her conveyance to thedefendants, and that plaintiff’s action must be dismissed.
The appeal is therefore allowed, and plaintiff's action dismissed,with costs in both Courts.
UKKUHAMY v. BALA ETANA et al