The inference that could be clearly drawn from this statement is thatPodimahathmayo, who had been living with ther husband at Menawa hadreturned to her mulgedera at Halpandeniya for her confinement, in keepingwith the customary traditions. Except for the fact that Podimahathmayohad given birth to the plaintiff at Halpandeniya, there is no other materialthat indicate that Podimahathmayo had maintained a close relationshipwith her mulgedera. Although the plaintiff in his evidence in the District
Except for the afore-mentioned statement, learned District Judge hasnot referred to any instances which had indicated that plaintiff’s motherhad maintained a close and constant affiliation with the mulgedera atHalpandeniya. The Court of Appeal was of the view that the judgment ofthe District Court would not warrant interference and had stated that—
“In the instant case the plaintiffs paternal grandfather (sic) havingbrought up the child from tender years and admittedly in the‘mulgedera’by the maternal grandfather whose rights the plaintiffclaims in the instant action, had not obviously disapproved ofthe daughter’s cohabitation with the plaintiff’s father.”
On a careful examination of the evidence of the plaintiff and the 1stdefendant and on a perusal of the documents that were produced in theDistrict Court, it appears that except for the Certificate of Birth of theplaintiff, there is no other material which reveals detailed informationregarding the residence of the plaintiff’s parents. The Certificate of Birthclearly indicates that the plaintiff was born at Halpandeniya and that beingthe village of the plaintiff’s mother, Podimahathmayo, it would appear thatshe had been at the mulgederator the confinement. However, with referenceto the name Sind residence of informant and in what capacity he had giveninformation, it had been stated that—
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Court had stated that his mother had a binna marriage with his father andthat they had lived at Halpandeniya there is no material to substantiatethis position. Furthermore, it is to be borne in mind that when the plaintiffwas questioned about his mothers previous marriage as to whether it wasdiga, he had vehemently denied that position. However, as stated earlier,Podimahathmayo’s first marriage was clearly in diga and therefore thequestion arises as to the credibility of the plaintiff’s evidence.
Be that as it may, the issue that has to be considered would be whetherthe return of Podimahathmayo to the mulgedera for her confinement couldbe regarded as an instance where there was a re-admission into the familyand thereby whether there had been a waiver of the forfeiture of inheritance.The question as to the return of a Kandyan woman to her parental homefor her confinement would re-establish the connection with the mulgederawas considered in Emi Nona vs. Sumanapala <">, where Jayatilake,S. P. J., held that, although there is evidence that after her marriage indiga she had visited her parents from time to time and stayed for sometime with them, that she went to her parents house for her confinementand attended on her father during his last illness is insufficient to establisha re-acquisition of binna rights.
In the instant case, there is no evidence to establish thatPodimahathmayo was living with the plaintiff’s father in the mulgedera.Also there is no material to show that, the plaintiff had been living with hismaternal grandparents prior to his mother’s demise. He was brought upby the maternal grandfather only after the death of his motherPodimahathmayo in 1908. On the other hand, the Certificate of Birth clearlystates that the plaintiff, although was born at Halpandeniya, his parentswere living at Menawa in the Kegalle district. In such circumstances it isevident that Podimahathmayo had not been living with Menawa RalalageMudiyanse at her mulgedera.
The legal position in regard to the property rights of a married daughtertherefore is quite clear and even if one were to consider the rights of adaughter who had returned from her diga-husband’s house, according toHayley (Supra at pg. 384), such a woman does not ordinarily recover anyright to inherit whether she returns before or after her father’s death. Theonly exception to this position where she would be able to inherit, is thatif she marries again in binna, with the consent of her parents.
Wickramasinghe VS.
Robert Banda and Others (Shirani Bandaranayake, J.)
In such circumstances, it is apparent that the plaintiff’s motherPodimahathmayo does not come within the said exception and thereforeshe would not be entitled to inherit from her father.
There is one other matter that has to be considered in this appeal.Inheritance is claimed by the plaintiff from the Estate of his maternalgrandfather. Plaintiff’s mother, Podimahathmayo pre-deceased her fatherand therefore the consideration should be regarding the rights of anillegitimate child to succeed to his maternal grandfather’s property. Hayley(Supra at pg. 391) referring to the said rights of illegitimate children statesthat, an illegitimate child does not succeed to his grandfather.
The Court of Appeal, however, relying on the decision of AppuhamyvsLapaya(,2) was of the view that irrespective of the fact that the plaintiff wasillegitimate that he is entitled to acquired property of his maternalgrandfather.
In Appuhamyvs. Lapaya (Supra) the Court had to deal with the rights ofan illegitimate child of the deceased person, namely one Rattarana, whohad pre-deceased his father. Wendt, J., sitting alone, was of the view that—
"he succeeds directly to his grandfather; the property doesnot come ‘through’ his father Rattarana in the sense that thefather ever had any interest in it, and there is therefore no reasonfor the argument that when it reached Wattuwa it wasRattarana’s paraveni property."
It has to be observed that this view is not in accordance with the lawsapplicable to intestate succession in Kandyan Law. Referring to the decisionin Appuhamyvs. Lapaya (Supra), Hayley in his treatise on the Laws andCustoms of the Sinhalese (Supra) stated that in deciding the matter inhand, Wendt, J., has disregarded the general principles of representationon which the rights of grandchildren are based. In his observation Hayleystated that—
“in allowing the appeal, Wendt, J., relies mainly on the propositionthat the property descended to the grandchild directly inits character of acquired property. Such a view, however,
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disregards the general principle of representation on which therights of grandchildren are based and also fails to take accountof the fact that illegitimacy itself usually arose from the refusalof the grandparents to recognize the marriage, for which veryreason the issue of such marriage was debarred from inheritingany property descending from them.”
The decision in Appuhamy vs Lapaya (Supra) was considered byWanasundera, J., in Kiri Punchavs. Kiri Ukku and others(,3>. In that case,the question arose as to the rights of illegitimate children to paraveniproperty and it was held that although illegitimate children are entitled tosucceed to their father’s acquired property, that in the general KandyanLaw an illegitimate child cannot inherit the property of his grandfather.Further it was held that if his father had predeceased the grandfather, hewould not be in a better position than if his father had survived and theproperty would still descend as paraveni.
In Kiri Puncha’s (Supra) case, Wanasundera, J. closely examined thedecision of Wendt, J. in Appuhamy vs. Lapaya (Supra) and was of the viewthat Wendt, J.,’s position was clearly not in accordance with the KandyanLaw. Referring to Wendt J.,’s judgment in Appuhamy vs. Lapaya (Supra),Wanasundera, J. stated that,
“This view is clearly not in accordance with the principles ofKandyan Law. Hayley at page 392 of his book shows byreference to the passage from Armour and other institutionalwriters on Kandyan Law that Wendt, J., had overlooked certainbasic features of the Kandyan Law in coming to this conclusion.”
On an examination of the decision in Appuhamy is. Lapaya (Supra)and Kiri Punchavs. Kiri Ukku and the principles of Kandyan Law referredto by Armour and Hayley, it is apparent that in Appuhamy vs. LapayaWendt, J., had overlooked certain basic features applicable to KandyanLaw in coming to his conclusion. It is also to be born in mind that in KiriPuncha vs. Kiri Ukku (Supra) decided in 1981, Wanasundera, J.disapproved the decision in Appuhamy vs. Lapaya (Supra) and did notfollow that judgment.
The Court of Appeal in considering the present appeal however hasrelied on the decision in Appuhamy vs. Lapaya (Supra) where it was statedthat—
Wickramasinghe VS.
Robert Banda and Others (Shirani Bandaranayake, J.)
“Even in the case of acquired property of a deceased who diesintestate under the Kandyan Law both legitimate and illegitimatechildren are entitled to such property in equal shares, videAppuhamyvs Lapaya 8 (Supra).
On a consideration of the above, I am inclined to the view that theimpugned judgment would not warrant interference.”
Thus it is evident that the Court of Appeal in decidjng that there shouldnot be any interference with the decision of the District Court, had reliedon a decision, which was disapproved by the Supreme Court and hasbeen regarded by Hayley, as a decision which had overlooked certainbasic features in succession to property by illegitimate children under theKandyan Law.
The judgment of the Court of Appeal thus creates the impression thatAppuhamyvs. Lapaya (Supra) is decided correctly and has to be followedin deciding property rights of illegitimate children.
The position with regard to the intestate succession of illegitimatechildren in Kandyan Law is quite clear. Under the general Kandyan Law anillegitimate child could not succeed to paraveni property if there are anyother relations however remote (Rankiri vs. Ukku(14)). Considering thisposition Hayley (The Laws and customs of the Sinhalese (Supra) pg 3)has clearly stated that the illegitimate child does not succeed to thegrandfather. In Hayleys words:
“I legitimate children are, however not entitled, to succeed tothe paraveniit there are any other relations however, remote. Itfollows therefore that an illegitimate child can never inherit theproperty of his grandfather, for, even if his father has predeceasedthe grandfather, he cannot be in a better position than if hisfather had survived in which case the property would descendas paraveni.”
As referred to earlier, the decision in Appuhamyvs. Lapaya (Supra), clearlyconstitutes a departure from the general principles applicable in KandyanLaw dealing with property issues pertaining to an illegitimate child. TheCourt of Appeal decision is based on the decision in Appuhamyvs. Lapaya
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which was disapproved in Kiri Puncha vs. Kiri Ukku (Supra) and for thereasons aforementioned, I hold that that the Court of Appeal has decidedthis matter erroneously.
For the reasons afreosaid, I answer the issue in the appeal in thenegative. This appeal is accordingly allowed and the judgment of the Courtof Appeal dated 27.08.2003 and the judgment of the District Court dated30.07.1993 are set aside. In all the circumstances of this case there willbe no costs.
AMARATUNGA, J. -1 agree.
MARSOOF, J. -1 agree.
Appeal allowed