066-NLR-NLR-V-27-APPUHAMY-r.-GAMARALA.pdf
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Present: Schneider J. and Jayewardene A.J.
APPUHAMY r. GAMARALA.
78—D. C. Kurunegala, 9,606.
Kandyan law—Rights of inheritance—Contest between binna father andbinna daughter of propositus.
Where under the Kandyan law, a woman, the issue of a binnamarriage, died intestate leaving her surviving her father, and herbinna husband who was the great great-grandson of a great-granduncle of the deceased.
Held, that the father was the heir to her estate.
The rule stated in Sawers, that the father is not the heir of theproperty of his children born in a binna marriage, which theyhave acquired through their mother—but that the maternaluncles or next of kin on the mother’s side are the heirs to suchproperty—should be read with the limitation laid down in Armourthat the father’s right is not lost, where there are only distantmaternal relatives, and the child remained under the father’s careafter the mother’s death.
Ran Menika v. Mudalihamy1 referred to.
r I ''HE plaintiff in this action sued for a declaration of title tothree lands. The lands originally belonged to oneKapuruhamy from whom they were inherited by his two childrenGallerala and Tikiri Etana, and thence through various personsthey ultimately devolved on Ran Menika, who died intestateand issueless. The plaintiff who was the binna husband of RanMenika claimed title also as the great-grandson of Tikiri Etana.The defendant is the binna married father of Ran Menika. Healso claims title on a transfer from one Menik Etana, the widow ofGuruhamy. who was a son of Gallerala.
The learned District Judge held in favour of the plaintiff, andthe defendant appealed.
Drieberg. K.C. (with him Amerasekera), for defendant, appellant.—Plaintiff claims by virtue of the failure of descendants of RanMenika. It is no doubt a well established rule in Kandyan lawthat where there is failure the property reverts to the source whenceit. came. But this rule has a limitation, viz., that it is limited tothree generations Ranhamy v. Pinhamy.2
Menik Etana, the wife of Guruhamy, the son and heir of Gallerala,being alive still would stop any further ascent. The defendanthas a deed from Menik Etana, No. 122 dated July 14, 1922. He
has therefore superior title.
' UUl-1) 1G *V. L. R. 131.
1925.
1 IS. C. C. 3.
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1925.
•Appvhamy
Qwnatala
[Schneider J.—Menik Etana is entitled to be in possession.]
Yes, she is the point at which the ascent stops (Pereira'sArmour, p. 48, and Modder, p. 606).
[Jayewardene A.J.—Where the three generations fail it goesto the widower.]
But in this it is a binna widower.
[Jayewardene A.J.—But you are claiming for a binna father.;
Yes, but the incident of binna does not touch him on the questionof inheritance from a daughter, but only if it is from his wife.(Marshall's Judgments, pp. 348 and 349, Pereira's Armour, p. ? I.)Binna husband has no claim.
[Jayewardene A.J.—Ttisnotthe husband preferred tothefather ’)
One cannot apply analog}'. Binna incident is peculiar toKandyan law. So that defendant has clearly superior title whetherviewed as binna father of Ran Menika or as transferee of MenikEtana, who clearly had title at the date of her transfer.
Hayley, for respondent.—Claim by father cannot be maintainedwhere property comes through the mother. (Ran Menika v.Mudalihamy ($upra)i Appuhamy v. Tikiri Menika.1) The passage atpage 77 in Pereira's Armour cited by the appellant is subject to theproviso : “ If the child had been under the father’s care.” Thereis no evidence here that Ran Menika was under the care of herfather. On the contr ry she was given up and married.
That being so, the only question is who are the next of kin, andin deciding this, the husband is to be preferred to the father, BandiEtana v. Herat Hamy * The next of kin are the next of kin throughwhom the property came, and n a case such as this where thedirect line is broken a side line ought to be taken. In any eventMenik Etana would not succeed to Hitihamy as property isGuruhamy’s. There is no proof either that Menik Etana wasmother of Hitihamy. Whatever evidence there is on our sideshows no right in her, and, therefore, the learned District Judge liascome to a correct conclusion.
Drieberg, in reply.—As for the father’s care and protection, theCourt will always, in the absence of evidence to the contrary, presumethat the father did his duty by his child. Further there is evidencethat the father lived with Menik Etana and looked after her.It must be presumed that Ran Menika also lived Avith her great-grandmother Menik Etana.
October 7, 1925. Jayewardene A.J.—
This case raises a question of inheritance under Kandyan law,which is not covered by authority. The lands in dispute belongedto a brother and sister, Gallerala and Tikiri Etana, by inheritanceJ (1973) 17 N. L. R. 1.2 (1915) 1 C. W. It 29.
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from their father Kapuruhamy. Gallerala died leaving Gnruhamywho married Menik Etana. Guruhamy died leaving his widow anda son Hitihamy. Hitihamy died and left a daughter PunchiMenika, who was married to the defendant in binna. She toodied leaving her surviving her husband, the defendant, and adaughter Ban Menika, who was married tothe plaintiff in binna. BanMenika died intestate and without issue. The plaintiff is the greatgreat-grandson of Tikiri Etana, one of the original owners. Thecontest is between Ban Menika’s binna married husband, the plaintiffand her binna married father, the defendant, who has also obtained adeed of gift for the lands in dispute from Menik Etana, the widow'of Guruhamy, dated July 14, 1922. At the date of Ban Menika’sdeath her maternal great-grandmother Menik Etana, her father,and her husband were alive. The learned District Judge saidthat the question raised in the case was one of great difficulty, andwith much hesitation upheld the claim of the plaintiff, as he was amember of the family to whom the lands belonged and had a betterright than the defendant, who was an outsider, and whose titlewas also derived from an outsider.
The plaintiff claims the lands not as the husband of the propositusBan Menika, for he was married to her in binna, but as a descendantof the original owner Kapuruhamy. It is contended for thedefendant that although married to the mother of the propositusin binna, he is her heir to the exclusion of the plaintiff who is avery distant relation, being the great great-grandson of a great-granduncle of the propositus. If he as father does not excludethe plaintiff, he claims that his transferor, the maternal great-grandmother of the propositus was her heir. It is necessary,therefore, to ascertain, so far as the same is material for the purposesof this case, the rule which governs the right of intestate successionto property which a person, the issue of a binna connection, hadinherited or acquired from the mother, in the absence of directdescendants.
Now as regards the father, Sawers says —
“ The father is not the heir of the property of his children bornin a binna marriage, which they have acquired throughtheir mother ; the maternal uncles or next of kin on themother’s side being the heir to such property ; but thefather will succeed to such children’s property if otherwiseacquired.” (Modeler’s Edition of Sawers’ Digest, Chapter /.,s. 50, p. 17.)
Armour states the law thus :—
“ If the child was the issue of a binna marriage, and if, after thedeath of that child’s mother, the father had desertedthe child and left it entirely to the care of the mother’sfamily, in that case the father will have no right to the
1926.
Jayewab-DENE A.J.
Appuhamy
v.
Qamarala
( 364 )
1926.
Jaybwar-
DSNS A.J.
Appuhamy
v.
Oamarala
reversion of any property that belonged to the child;that property will, therefore, at the child's death, devolveon his or her nearest of kin on the mother’s side inpreference to the father and in preference to the saidchild’s paternal half brother and half sister, it beingpremised that the father was not also an ewassa cousinof the said child’s mother.
“ But if the child, albeit the issue of a binna connection, hadremained under the father’s care after the mother’sdemise, in that case the father will be entitled to areversion of the child’s estate in preference to any child’sdistant maternal relations (mother’s granduncle’s son forinstance) and that whether the father was or was not alsoan ewassa cousin of the said child’s mother." (Pereira’sArmour, p. 77.)
Marshall adopts the law as laid down by Sawcrs. (MarshalVsJudgments, p. 344.)
These conflicting views have been considered by this Court in manycases and the rule as laid down by Sawers was adopted by theCollective Court in Appuhamy v. Dingiri Menika.' This decisionhas beenfollowedsince. (See Ran Menika v. Mudalihamy (supra) andAppuhamy v. Tikiri Menika (supra).) AlthoughLawrie J. in DingiriMenika v. Somathani,2 doubted the correctness of the rule as laiddown by Sawers and thought that Armour ought to be followedin preference to Sawers. However, the rule as laid down by Sawersis too strongly established to be questioned now. But it is possibleto give some effect to the rule as stated by Armour in the secondparagraph quoted above without unduly restricting the rule asgiven by Sawers, that is, that the father ought to be preferred tothe child’s distant maternal relations, such as the mother's grand-uncle’s son. There is nothing in the decided cases to prevent theadoption of such a course. Thus in Appuhamy v. Dingiri Menika(supra) the maternal grandmother and the mother’s uterine halfsister were preferred to the father. In Ran Menika v. Mudalihamy(supra) also the maternal grandmother and in Appuhamy v. TikiriMenika (supra), the maternal grandmother and the mother’s brotherand sister were preferred to the father. In Ran Menika v. Mudali-hamy (supra) Lascelles C.J. dealing with the conflicting views ofSawers and Armour said :—
“ As a matter of construction I should have held that it (that is,Armour’s opinion) was applicable only to cases where theclaimants on the maternal line stood in a more remotedegree of relationship to the propositus than that of great-aunt.”
1 (1889) 9 S. C. C. 35.2 (7597) Modder's Kandyan Law, p. 497.
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This construction receives support from the Niti Niganduwa,where it is laid down that " if the proprietress dies leaving herfather and her maternal grandfather’s elder or younger brother orcousin all her property, including all her maternal lands, willdevolve on her father.” (Le Mesurier's and Pannebokke’sTranslation, p. 114.)
This would apply to a father married in binna for wheneverthere is a difference between the rights of persons married in digaand in binna, the Niti Nigandmca is careful to draw a distinction.It also shows that while a maternal grandfather might himselfexclude the father, his brothers and cousins would not. In myopinion, therefore, the rule as stated in Sawers should be readwith the limitation laid down in Armour, that a father’s right toinherit the property of a child bom of a binna marriage is not lostwhen there are only distant maternal relations. As regards therequirement that the father should not have abandoned the child,but should have had the child under his care after the death ofthe mother, it may fairly be presumed that the father did his dutyby his child. There is positive evidence that he lived with hiswife’s grandmother Menilc Etana, and looked after her. With whomcould his daughter have lived except with her great-grandmother ?It is not suggested that he abandoned the child or left the villageand lived elsewhere. I think it must be held that this requirementhas been complied with. In the present case the plaintiff is thegreat great-grandson of a great-granduncle, and cannot be preferredto the defendant, the father.
A question was also raised with regard to the rights of MenikEtana, the great-grandmother of the propositus, who transferredher rights to the defendant. It was contended for the plaintiffthat there was no proof that Menik Etana was the mother ofHitihamy, the grandfather of the propositus. I find in the recordan affidavit by the plaintiff (P3) in which he states that Guruhamywas married to Menikhamy in diga and died leaving a son Hitihamyand complains that Menikhamy is proposing to sell her husband’sshare in the family lands. This was in 1919. This documentproves conclusively that Menik Etana alias Menikhamy was thegreat-grandmother of the propositus, and not the second wife ofGuruhamy. A maternal grandmother under the Kandyan lawis only entitled to a life interest in the property of her grandchildinherited from her mother. The right of the maternal great-grand-mother cannot be greater than that of the grandmother, so if thelatter has only a life interest, the former can also have only a lifeinterest. But in Ran Menika v. Mudalikamy (supra), the maternalgrandmother, it was said, took an absolute interest in her grand-child’s property. This appears to be in conflict with the law as
1925.
Jaybwah.BEHE A..T.
Appuhamy
v.
Qamarala
( 366 )
1925.
, Jayewar-
deneA.J.
Appuhamyv.
Oamarala
laid down in Puncki Menika v. Dingiri Menika- which followedan earlier case reported in (1837), Morgan's Digest p. 20i, s. 542.(See also Ran Menika v. Ukku Menika.2)
If Menik Etana became entitled to an absolute interest, herdeed of gift of July 14, 1922, would vest that right in the defendant,and he would be entitled to the property. If, she had only a lifeinterest the defendant would be the person entitled to the dominium.
For these reasons I hold that the defendant’s right is superiorto that of the plaintiff. The appeal will, therefore, be allowed,and the plaintiff’s action dismissed, with costs in both Courts.
Schneider J.—I agree.
Appeal allowed.
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