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APPUHAMI t>. LAPAYA.
R-, KegaUa, 6,202.
Kandyan Law—Acquired property—Illegitimate children—Succession.
B, who was owner of a certain land by purchase, died intestate,
• leaving him surviving (1) H, his son; (2) W, the illegitimate son ofhis late son B; and (3) L, his nephew. H also subsequently diedintestate and without issue and survived by W and L. W conveyedhalf share of the land to his mother, who conveyed to plaintiff in anaction by plaintiff against L.
Held, that on B's death W became entitled to a half share of ‘theland.
Under the Kandyan Law where a person dies intestate leavingboth legitimate and illegitimate children, his acquired property isdivided equally between them.
Bawa, for appellant.
ff. Ja/yewardene and Wadsworth, for respondent.
13th December, .1905. Wendt, J.—
This appeal raises a question of Kandyan Law as to intestatesuccession. One Balaya acquired by purchase the land in question,and dying intestate left surviving him (1) his son Horatala, (2)Wattuwa, the illegitimate son by one Salloo of his late son Battarana,and (3) the first defendant, who on the one hand is said to be theson of both Balaya and his brother Kiriya by a common wife Gam, andon the other hand the son of Kiriya alone. Horatala next diedintestate and without issue, survived by Wattuwa and Salloo andfirst defendant. Wattuwa conveyed half Balaya’s interest in theland to his mother Salloo, who thereafter conveyed it to plaintiff.Plaintiff’s case is that Wattuwa inherited one-half of Balaya’s shareof the land, as it was acquired property, and that Horatala took theother half. The Commissioner, if I understand him aright, is ofopinion that although Wattuwa would have inherited his fatherBattarana’s acquired property, he was excluded from inheritinghis grandfather Balaya’s acquired land by the existence of Horatala.On Horatala’s death the land, as his paraveni property, passed tofirst defendant, whether he was half-brother or cousin only ofHoratala, Wattuwa being excluded from the inheritance of paraveniland by the illegitimacy of his birth.
The question is, did Wattuwa inherit any interest in Balaya’sestate ? Had Battarana lived to inherit, Wattuwa would on thedeath have taken no part on the inheritance, because the land wouldthen have become his father’s paraveni property. Gan we look upon
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his claims as being on exactly the same footing, as if they were pre- 1905,ferred by Eattarana being alive at Balaya’s death and being an December 13.illegitimate son?
Assuming we can, Armour says (Cap* III., sec. 2, Perera's Edn.p. 34)> "In some cases illegitimate children are even competent toinherit their fathers* purchased lands as well as goods and chattels.
Thus, if a man of high caste cohabited with a woman of inferiorfamily rank and maintained that woman in his own house, and wasattended and assisted by her until his demise, then, in case thatman died intestate and left not a widow who had been lawfullywedded to him, and left not legitimate issue, his landed property,which he had acquired by purchase, will devolve to his illegitimateissue, the child or children of the said woman of low caste or inferiorfamily rank; but his paraveni or ancestral lands will return to hisnext of kin amongst his blood relations." These words imply thata widow or legitimate issue would exclude the illegitimate childrenfrom inheriting .the acquired lands. The old authority, Sawer, doesnot support this view: he merely states (pp. 7, 8)-: " The issue of hislow caste wife can inherit the lands acquired by their father. . . .but should no provision of this kind exist for the children of the lowcaste wife, they will in that case be entitled to temporary supportfrom their father’s hereditary property." The NituNighanduwais the basis of Armour’s work, in fact the original edition of his bookwas Niti-Nighanduwa or Grammar of Kandyan Law." The originalpassages (at pp. 14 and 71 of LeMesurier and Fanabokka’s trans-lation of. the Sinhalese work) give no countenance to .the statementthat a widow or legitimate children would exclude the illegitimatechildren. And in Mahatmaya v- Banda (2 8. C. B. 142) Lawrier
J., held (although the point did not arise for adjudication) that theacquired property would be divided between he legitimate andillegitimate issue. He gives a reference to D. C., Kandy, 721, whichI had occasion recently to verify. The judgment of the SupremeCourt in that case delivered on the 24th August, 1842( held thatthe legitimate son. took one-half of the acquired property and theillegitimate children the other half. In the hypothetical ca6e I haveput, therefore, Eattarana would have shared with Horatala theacquired property of Balaya.
Then does the fact that Eattarana was dead when the successionopened make any difference? In principle I can see no reason forholding it does. " Acquired property " in Kandyan Law possessedthe quality of being heritable by illegitimate children as well asby legitimate, and Wattuwa was therefore not disentitled to take,a share. He succeeds directly to bis grandfather^ the property does
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1905. not come " through ” his father Battarana in the sense that theDecember 13., father ever had any interest in it, and there is therefore no reasonWbud®, 3. for the argument that when it reached Wattuwa it was Battarana’sparaveni property.
It follows that Wattuwa was entitled to sell to his mother one-halfof Balaya’s interest of one-eighth of the land. "The remainingofie-eighth has passed from Horatala to first defendant. Plaintiff.. will therefore have judgment against first defendant for one-eighthof the land (worth Bs. 30), with costs in the appropriate class in theCourt of Bequests. The dismissal of the action as against seconddefendant is affirmed, but without appeal costs to second defendant.The first defendant will pay plaintiff’s appeal costs.
APPUHAMI v. LAPAYA