030-SLLR-SLLR-2006-V-1-WICKRAMASINGHE-vs.-ROBERT-BANDA-AND-OTHERS.pdf
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WICKRAMASINGHEVS.ROBERT BANDA AND OTHERSSUPREME COURTBANDARANAYAKE, J.
AMARATUNGA, J ANDMARSOOF, J
SC (APPEAL) NO. 14/2004
12th MAY 2005 AND 14th AND 20th JUNE. 2005
Kandyan Law – Daughter married in deega. – Forfeiture of rights to paternal(mulgedera) inheritance – Re-acquisition ofbinna rights in mulgedera – Rightsof daughter's son to succeed to maternal grandfather’s property.
The District Court gave judgement in a partition case in favour of the 1 strespondent Robert Banda on the ground that the property of his paternalgrandfather Mohotty Appuhamy who died intestate devolved on Punchi Banda(son) and Podimahathmayo (daugther), Robert Banda’s mother, who marriedin deega and lived at Kegalle. That marriage was dissolved in two years on30.01.1908. In 1915, Robert Banda was born to Podimahthmayo by an illicit
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connection with one Mudiyanse ; and Podimahathmayo returned to themulgedera as was customan/, where she gave birth to Robert Banda (theplaintiff).
The district Judge gave judgement for the plaintiff on the basis that byreverting to mulgedera, at Halpandeniya. Podimahaththayo had by such “closeconnection" with the mulgedera re-acquired her rights to mulgedera property.
The Court of Appeal affirmed the District Judge’s order notwithstanding thatPodimahathmayo had predeceased Mohotti Appuhamy, the plaintiff's maternalgrandfather on the strength of Appuhamy v Lapaya (8 NLR 328) on the basisthat the plaintiff was entitled to inherit the acquired property of his maternal 'grandfather.
HELD:
In Kandyan Law, a daugther who marries in deega forfeits her rights tomulgedera property, except that she would reacquire binna rights byproof of several instances
having a close link with mulgedera even after the marriage ;
by a subsequent marriage in binna ;
by leaving a child with the grand parents at the mulgedara ;
by possessing shares of property in spite of the marriage in binna ;
any evidence to indicate the waiver of the forfeiture of her rights byother members of the family.
When it was found that Podimahathmayo had predeceased her father,plaintiff’s maternal grandfather, the Court of Appeal held wrongly thatthe plaintiff is entitled to succeed to the property of his maternalgrandfather, Mohotti Appuhamy. On the strength of Appuhamy v Lapayawhich decision has been criticized by Hayley and Kiri Punchav KiriUkku (1981)1 Sri LR 341 as having been wrongly decided.
In the circumstances and on the evidence, the plaintiff was not entitledto judgment on any basis. Both the District Court and Court of Appealhad erred in giving judgment for the plaintiff.
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CASES REFERRED TO:
Gunasena v Ukku Menika (1976) 78 NLR 524
Dingiri Amma v Ukku Banda (1905) 1 BAL 193
Tikiri Kumarihamyv Loku Menika (1875) RAM 1972-76 p. 106
Babanisa v Kaiuhamy(1909) 12 NLR 105
Dingiri Amma v Ratnayake (1961) 64 NLR 163
Madawalatenna (1834) Marshal's Judgements 329
Ukkuv Pingo (1907) 1 Leader 53
AppuhamyM Kiri Menika et at (1912) 16 NLR 238
Banda v Angurala 50 NLR 276
Appu Naide v Heen Menika (1948) 51 NLR 63
Emi Nona v Sumanapala (1948) 49 NLR 440
Appuhamy v Lapaya (1905) 8 NLR 328
Kiri Puncha v Kiri Ukku and Others (1981) 1 Sri LR 341
Rankin v Ukku (1907) 10 NLR 129
APPEAL from the judgment of the Court of Appeal.
J. Joseph with Ms. H. P. Ekanayake and Chamindika Perera for appellant.Peter Jayasekera with Gamini Peiris and Kosala Senedeera for respondent.
Cur.adv.vult
09th September, 2005,
SHIRANIBANDARANAYAKE, J.This is an appeal from the judgement of the Court of Appeal dated
By that judgment the Court of Appeal affirmed the judgmentof the District Court dated 30.07.1993 and dismissed the appeal. The 1 stdefendant-appellant-appellant (hereinafter referred to as the 1 s‘ defendant)appealed against the said judgment of the Court of Appeal on which thisCourt granted special leave to appeal.
The main issue in this appeal is whether the plaintiff-respondent-respondent (hereinafter referred to as the plaintiff), the son ofPodimahathmayo, could succeed to his maternal grandfather, Mohottihamy.
The facts of this appeal, albeit brief, are as follows:
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The plaintiff instituted action in the District Court of Kurunegala to partitionthe land described in the schedule to the plaint (P1). The plaintiff hadstated that one Mohottihamy alias Mohotti Appuhamy, (hereinafter referredto as Mohotti Appuhamy) who was the original owner of the property, diedintestate and his property devolved on his son and daughter namely PunchiBanda (son) and Podimahathmayo (daughter) and the saidPodimahathmayo owned and possessed her 1/2 share of the property,which devolved upon her death to her only child Robert Banda, who wasthe plaintiff in the District Court case.
According to the plaintiff, his mother (Podimahathmayo) was married indiga to S. M. Dingiri Banda on 30.05.1906 and the said marriage wasdissolved on 30.01.1908 (P2). Podimahathmayo returned to her Mulgederaand while living with her father at Halpandeniya there had been an illicitrelationship with one Menawa Ralalage Mudiyanse and the plaintiff wasborn to Podimahathmayo in 1915. Thereafter Podimahathmayo had diedin 1918, when the plaintiff was 3 years of age. Mohotti Appuhamy (thematernal Grandfather) had brought him up at the mulgedera in Halpandeniyauntil his death in 1929 and thereafter the plaintiff’s maternal uncle (PunchiBanda) had looked after him.
The contention of the 1 st defendant, however, is different and his positionis that at the time the plaintiff was born in 1915, his parents were residingnot at Halpandeniya as stated by the plaintiff, but at Menawa in Kegalle.Further it was contended that the union between Podimahathmayo andMenawa Ralalage Mudiyanse, though not registered, is a diga marriagesince Podimahathmayo had left the mulgedera with the said MenawaRalalage Mudiyanse. The 1 st defendant took up the position that as thereis no birma marriage contracted between the parents of the plaintiff, thatthe plaintiff is not entitled to the 1/2 share of the property.
Learned Counsel for the 1 st respondent further contended that the plaintiffhad not averred that his mother married in binna and that his Certificate ofBirth (P3) indicates clearly that his parents were residing at Menawa inKegalle and not at Halpandeniya, the village of the plaintiff’s mother andthe grandfather. The learned Counsel for the 1st respondent submittedthat the union between the plaintiff’s mother Podimahathmayo and MenawaRalalage Mudiyanse, although not registered, is a diga marriage since theplaintff’s mother, Podimahathmayo had left the mulgedera with the saidMenawa Ralalage Mudiyanse. Further he contended that, there was no
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binna marriage between Podimahathmayo and Menawa RalalageMudiyanse as there is no evidence of binna settlement. Therefore hissubmission is that since Podimahathmayo married Menawa RalalageMudiyanse in diga, the plaintiff had forfeited his rights to his maternalgrandfather’s property.
It is well recognized in Kandyan Law that a daughter who marries in diga,forfeits her right to the paternal inheritance (Gunasena v Ukku Menika (1)).Hay ley referring to the Kandyan Law that is applicable to a daughter whohad married in diga, clearly states that,
“the general rule is‘that neither a d/ga-married daughter, nor herchildren, can compete with other children by the same mother, ortheir descendants, in the distribution of a deceased intestate’s estate.This rule has been accepted without hesitation ever since the Kandyan
Law was first administered by British Courts(The Laws and
Customs of the Sinhalese or Kandyan Law, Reprint 1993, pg. 379).”
In terms of the general rule, a diga-married daughter, or her childrenwould therefore not be entitled to any paternal or maternal inheritance.However, the general rule is not to be applied thus simply as the moderncase law has clearly accepted certain exceptions, which favours the diga-married daughter enabling her to re-acquire the rights of a binna-marrieddaughter in the event she fulfils certain requirements. In fact Hayley pointsout that ‘certain modern judgments have tended towards engrafting anexception in favour of the d/ga-married daughter who has1 kept up a closeconnection with her father’s home’ (Supra, pg. 379).
The exception to the general rule thus appears to be a developmentthrough the case law and therefore it would be useful to examine theimportant judgments to assess the circumstances in which the exceptionhad been applied.
Dingiri Amma v Ukku Banda(2) is one of the early decisions, which hadconsidered a daughter married in diga re-acquiring the rights of a daughterwho had married in binna. In Dingiri Amma’s case the plaintiff first lived withher husband in her father’s house prior to the marriage being registered.Subsequently the marriage was registered and both husband and wife livedin the father’s mulgedera as well as in the husband’s house, until themulgedera was demolished. Thereafter the plaintiff’s husband built a new
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house in the same garden where the mulgederawas situated and both thehusband and the wife were living together in that house. Pereira, J., heldthat even if the plaintiff was married in diga, she had acquired binna rights.
in Tikiri Kumarihamyv Loku Menika(3) the Court was of the view that adaughter originally married in binna, subsequently leaving her parents’house and going to live with her husband in diga and still keeping up aclose connection with the mulgedera or a daughter originally married indiga and subsequently returning to her parents house and being re-marriedin binna, may preserve her rights to any share in her parents estate.
The entitlement of a Kandyan woman to her parental inheritance, whohad contracted a diga marriage, but who had subsequently returned to theparental roof and contracted a binna marriage during the lifetime of herfather, was further strengthened in Babanisa v Kaluhami(4) as well as inDingiri Amma v Ratnayake(5).
It is therefore clear that a daughter who had married in diga, but undervarying circumstances had kept a close connection with the mulgedera,would re-acquire the rights to inherit from her father as that of a daughterwho had married in binna. This position has been endorsed in an earlycase, namely in Madawaiatenne{6) decided in 1834 where the SupremeCourt was of the view that,
“it appears that, though she was married in diga, she always
kept up a close connection with her father’s house, in which indeed
three of her children were bom;again it appears that the father,
on his death-bed, gave one talpot to the defendant and two others tohis wife, what had become of those two latter olas does not appear,but it is not improbable that one of them may have been intended forthe plaintiff, more especially considering the frequency of hervisits to the paternal residence (emphasis added).”
However, it is to be borne in mind that, as correctly pointed out byHayley (Supra), that the daughter in Madawalatenne was awarded only
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one-sixth of what her mother possessed and not the half share to whichshe would have been entitled if not for her marriage.
Be that as it may, there are several other decisions that had taken theview that depending on the circumstances, a Kandyan woman married indiga could later re-acquire the rights of a binna marriage. I would refer tosome of the judgments to indicate the circumstances in which such re-acquiring the rights of a binna marriage had taken place.
In Ukkuv Pingom it was held that a daughter, who married in diga, afterher father’s death, retained he/ share by leaving behind in the mulgederaa child previously born to her there as mistress of her brother-in-law. Asimilar view was adopted in the decision in Appuhamyv KiriMenika et al(8)where a Kandyan woman, who was married in diga went to live with herhusband about two miles away from the mulgedera. One of their childrenwas left in the mulgedera and brought up by her grandmother. It was alsorevealed that the woman, although maried in diga, kept up a constant andclose connection with the mulgedera. Lascelle, C. J., held that in thecircumstances, the woman did not by reason of her marriage in diga,forfeit her right to the paternal inheritance.
The decision in Bandav Angurala® on the other hand, clearly indicatesthat the Court had looked at the question from another perspective andheld that the regaining of binna rights may be evidenced by material otherthan in connection with the mulgedera. Emphasising on this aspect,Bertram, C. J., stated that,
“In all previous cases the question for the recovery of binna rightshas always appeared to turn upon something done in connectionwith the mulgedera. such as a resumption of residence there ; thecultivation of the paternal lands held in connection with it; the leavingof a child in the mulgedera; or the maintenance of a close connectionwith the mulgedera. But in this case nothing of the sort is suggested.The claim to binna rights, however, in the case is based uponcircumstances of a very significant and uneqivocal character”
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In this case notwithstanding the fact that the diga marriages of the twodaughters, their brothers had executed a series of deeds clearly basedupon the supposition that their sisters retained rights in the paternalinheritance. It was held that the execution of a series of deeds for a numberof years by other members of the family on the footing that a diga marriedlady still possessed rights would be sufficient evidence of such waiver. Indeciding so, Bertram C. J., further stated that—
The point at issue is the forfeiture of certain rights of inheritance.
Any forfeiture may be waived by those in whose benefit it takesplace. It has been customary in considering whether a forfeitureof binna rights has been waived to look at the matter from thepoint of view of the connection of the daughter in question withthe mulgedera. But in my opinion there is nothing to show thatthis is the only test. To use a favourite phrase of the late LordBowen, ‘there is nothing magic about the mulgedera. When aforfeiture has taken place it is not the connection with themulgedera which restores the binna rights, it is the waiver ofthe forfeiture of which the connection with the mulgedera is theevidence. As was said by Wood Renton C. J., in Fernando vs.
Bandi Silva (1917) 4 C. W. R. 12), The instances given in thetext books on Kandyan Law of the cases in which binna rightscan be regained are illustrations of a principle and not categoriesexhaustive in themselves. The underlying principle is thatthe forfeiture by a marriage in diga of the rights of thediga married daughter to a share of the inheritance maybe set aside by her readmission into the family (emphasisadded.)”
Several years later, another aspect was taken into consideration by thethen Supreme Court and the decision in Appu Naide vs. Heen Menika(,0,brought in a new concept to the question of the rights of a woman marriedin diga to acquire property of her family. The question in this case waswhether the two sisters who were married in diga and had nore-
acquisition of binna rights be entitled to their father’s property on his death.There was evidence that on the death of their father, who was the originalowner of the land, the two sisters with their brother in pursuance of anarrangement among themselves, possessed and enjoyed their father’slands in equal shares. It was held that where a brother permits his sisters,
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in spite of their marriages in diga to possess their share of the land for along period of time, he has acquiesced in their right and cannot be permittedto deny it.
On an examination of the afore-mentioned decisions as well as theearly authorities, it is apparent that a Kandyan woman who had married indiga, could establish the re-acquisition of binna rights by proof of severalinstances, which would include —
having a close link with the mulgedera even after the marriage;
by a subsequent marriage in binna;
by leaving a child with the grand parents at the mulgedera;
by possessing their shares of property in spite of the marriage indiga;
and most importantly
any evidence to indicate waiver of the forfeiture of her rights.
Having said that, let me now turn to examine the circumstances inwhich the plaintiff had made a claim to the property in question.
Admittedly, the plaintiff’s mother, the said Podimahathmayo marriedone Dingiri Banda, on 30.05.1906. The certificate of marriage (P1) statesthat the marriage was in diga. The said marriage had been dissolved on30.11.1908 (P2). According to the Register of Dissolution, there had beenno children from that marriage. The plaintiff was born on 06.06.1915 atHalpandeniya and the Certificate of Birth (P3) discloses that MenawaRalalage Mudiyanse and Podimahathmayo are the parents and that theywere not married at the time of the birth o.f the plaintiff. Podimahathmayohad died in 1918 and the plaintiff’s maternal grandfather, Mohotti Appuhamy,had died in 1929.
Learned Counsel for the plaintiff, referred to the judgment of the DistrictCourt and submitted that the learned District Judge had held that from thefact that the plaintiff was born and bred in the mother’s village, that it couldbe concluded that the plaintiff’s mother had close connection with themulgedera and therefore she does not forfeit her paternal inheritance. Ireproduce below the relevant portion from the judgment of the learnedDistrict Judge where he had stated that —
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’(emphasis
added).”
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.
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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—
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“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