084-NLR-NLR-V-50-MOHOTIHAMY-Appellant-and-ALNINONA-Respondent.pdf
Moholihamy v. A.lninona
317
1949Present: Wijeyewardene C.J., Canekeratne and
Gratiaen JJ.
MOHOTI HAMY, Appellant, and AXiNINOISTA, RespondentS. C. 350—D. C. Balnapura, 8,097
Kandyan Law—Intestate succession—Children by two beds—Devolution perstirpes or per capita^—Inveterate error.
Where a Kandyan, whether male or female, dies leaving children bytwo beds, the children succeed per stirpes and not per capita.
Appeal from a judgment of the District Judge, Ratnapura.
E. B. Wihramanayake, K.C., with A. H. E. Molamure and
J.W. Svbasinghe, for defendant appellant.
O.A. Jaydsundere, K.C., with Vernon Wijetunge and C. G. Weera-mantry, for plaintiff respondent.
1 (1930) 32 N. L. R. 81.
1*J. 3ST. A 88963 (5/49)
318
WIJEYEWARDENE C.J.—Mohot-ihamy v. Alninona
April 6, 1949. Wijbybwaedbsi C.J.—
One Salishamy, a Kandyan woman, was married twice. She had twochildren, Maggie Nona and defendant, by her first marriage and fourchildren, Saralis, Themis, Jane and Baby by her second marriage. Salis-hamy died before the commencement of the Kandyan Law Declarationand Amendment Ordinance, leaving her six children as her heirs. Maggie,Saralis and Baby died intestate and issueless. Under the Kandyan Lawthe share of Maggie would have devolved only on the defendant and theshares of Saralis and Baby only on Themis and Jane {vide Hayley onSinhalese Laws and Customs, page 440).
By deed PI of 1945 Themis sold to the plaintiff ^ share of certainlands and houses. By deed P2 of 1945, Jane sold to the plaintiff ^ shareof one of the houses.
The defendant filed answer pleading that the plaintiff was entitled toclaim under Pi only £ share of the lands and houses and under P2 onlyJ share of the house referred to in P2. The District Judge held in favourof the defendant.
The question we have to decide on this appeal is whether the devolutionof the property on the death of Salishamy among the children of her twomarriages should be per capita or per stirpes.
It has been settled by a long series of decisions of this Court that thesuccession should be per stirpes where children of'different marriagesclaim property of their father [vide (1843) Austin Reports 105 ; (1851)Austin Reports 122 ; Ran Menika v. Ran Menika (1857) 2 Lorenz 27 ;(1870) Vanderstraaten’s Reports +3 ; Banda v. Lebbe et al. (1916) 2 CeylonWeekly Reporter 108]. It is contended by plaintiff’s Counsel thatthose cases have been wrongly decided and that we should not followthem when we consider the succession of the children to the property oftheir mother. It is conceded, however, by him that the early textwriters do not draw any distinction between the rule governing thesuccession of children of different marriages of a father and thatgoverning the succession of children of different marriages of a mother.Moreover, there are definite decisions of this Court adopting the rule ofsuccession per stirpes in the case of the property of a mother [videSiriyav. Kaluwa (1889) 9 Supreme Court Circular 45, Appuhamy v. HuduBanda (1903) 7 New Law Reports 242 and Nanduwa v. Punchirala et al.([1922) 24 New Law Reports 249.] Even if the decisions of this Courtare contrary to the rule to be gathered from Sawyer and Armour, Ithink that the present case is one of those cases in which inveterate errorshould be left undisturbed because it would be unjust to disturb titlesand transactions founded on such an error (vide Pate v. Pate (1915) 18New Law Reports 289 at 293.)
I would dismiss the appeal with costs.
Canekebathe J.—I agree.
Gbatiaen J.—I agree.
Appeal dismissed.