080-NLR-NLR-V-23-APPUHAMY-et-al.-v.-BANDA.pdf
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Present: Bertram C. J. and Garvin A. J.
APPUHAMY ei al. v. BANDA.
135—D. 0, Regatta, 5,333.
Kandyan law—Interest of mother in acquired property of her husband—Usufruct.
The interest of a mother in the acquired property of her husbandis not defined with exactitude in Kandyan law; but it seemsclear that it was regarded as nothing more than a usufruct.
T
HE plaintiffs in this action sought to vindicate their title to ahalf share of the land in dispute which they claimed on a
planting agreement executed by the original owner in favour oftheir father.
The defendant denied the planting agreement relied upon bythe plaintiffs, and also the fact that plaintiffs’ father had plantedthe lands in terms of the agreement.
On the date of trial it was admitted that the plaintiffs’ mother *who was entitled to a life interest in the property in dispute wasalive and not a party to the action. The District Judge dismissedthe action as the mother was not a party. The plaintiffs appealed.
Keuneman, for the appellants.
Samaramchreme, for the respondent.
November 21,1921. Bertram C.J.—
This was an action by two persons claiming a planter’s share ofland in the Kandyan Province by inheritance from their father.On the day of trial a motion was made for the first time to join
1921.
1921.
Bbbtkam
C.J.
Appuhamyt>. Banda
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the- mother of the plaintiffs as a party. The learned Judge rejectedthat application, for what reason it was not altogether apparent.It then seems to have been assumed by all the parties that the factthat the mother was alive and not. a party to the action was fatalto the action, and that it could not further proceed. Apparentlyunder that apprehension a formal motion was made that the actionbe dismissed, and to this the learned Judge acceded. I thinkthat this procedure was mistaken. The interest of a mother in the •acquired property of her husband is not defined with exactitude inKandyan law; but it seems clear from a number of incidentalreferences that it was regarded as nothing more than a usufruct.In Madder's Kandyan law, paragraph 170, it is spoken of as aright of possession, and it is similarly spoken of in Kaht v. Lami 1by Layard C.J., who also speaks of it as a right of retention of theacquired property. There is another case {Ausadahami v. TikiriEtanaa), where it is spoken of asa life rent. But the most deliberateexpression of this point of view is to be found in the judgment ofWood Benton J. in Josi Nana v. Batin Nona? where he says:“ But it will perhaps prevent future litigation if at the same tiipewe direct, as I suggest that we should, a declaration in the decree ofthe admitted rights of the respondents to a share in the propertyin question—a right which is vested now, and will become a rightin posse on the death of the first defendant appellant.”
It is not necessary for us to go into this question now. But it isat least arguable that in this case the right of the plaintiffs Wasvested, subject to a right of possession in their mother. If that wasthe case, the learned Judge was clearly wrong in dismissing theaction of the plaintiffs, because, even if the mother was not a party,the plaintiffs would be entitled to a declaration of their title inrespect of their vested interest. I cannot help thinking, however,that it would have been better if the mother had been joined. Suchpossession as the sons had, if they had any, must have been inright of their mother. The right claimed was practically a familyright, and it would be much better that all the parties should bebefore the Court. Of course, the mother cannot be joined withouther conAt. But I think that the learned Judge should givq^ier anopporttfint^bf being joined. If she elects not to be joined, the actioncan still proceed with regard to the rights claimed by the children.
In my opinion the order dismissing the action should be setaside, and the case remitted for further trial. As the application tojoin the mother was only made on the date of trial, the defen^ntshould have the costs of the day. But the appeal should beallowed, with costs.
Gaevut A.J.—I agree.
Sent back.
1 (2909) 21 N. L. B. 222.* (1902) 5 E. L. B. 117.
> 2 Leader L. B. 47.