057-NLR-NLR-V-07-APPUHAMY-v.-HUDU-BANDA.pdf
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1903.
February 26.
APPUHAMY v. HUDU BANDA.
B., Badidla, 24,135.
Kandyan Latu—Diga married husband’s interest in his deceased wife’s estate—Partition Ordinance, No. 10 of 1863, s. 2—Land belonging to plaintiff incommon with others—Meaning of “ belong to him ”—Bight to maintainpartition suit.
The property of a Kandyan diga wife dying intestate, leaving children,by two beds, descends per stirpes to such children.
Failing children, her ancestral property goes over to the next nearestline which issues from the cdnmon ancestor, subject to a life interestin favonr of her diga married widower.
The diga married widower as owner of a life interest is not
entitled to a partition suit?
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HE plaintiff prayed for a partition decree in respect ofcertain lands, alleging that his wife Hudu Menika received
them as a gift from her father and died intestate, leaving three
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children bora of the plaintiff, and the defendant bora of a previous 1903.husband, as her heirs; that the three children died unmarried and February 26.intestate; that their shares, namely, an undivided three-fourths,devolved on their father by the right called daru-urume; andthat the defendant was entitled to the remaining one-fourth.
It was admitted that Hudu Menika married the plaintiff indiga; that she returned to her father's house with the plaintifffifteen years before -her death; and that the plaintiff sold all hislands and resided with his wife in her father’s house.
The Commissioner (Mr. Bartlett) deoreed a partition betweenthe plaintiff and defendant in equal shares.
The defendant appealed. The case was argued on 19th February,
3903.
Bawa, for defendant, appellant.
Samarawickrama, for plaintiff, respondent.
Cut. adv. vult.
26th February, 1903. Middleton, J.—
In this case one Bandirala, by deed on 17th June, 1884, gavecertain property to Hudu Menika. Hudu Menika married firstone Kirimitta, and had issue the defendant. On the death ofXirimitta, Hudu Menika married in diga one Appuhamy, and hadissue, three children: Punchirala, Kalu Banda, and Hudu Konna. -Hudu Menika died leaving her surviving Appuhamy, her hus-band, the defendant, and the three children by Appuhamy, whodied respectively five, five, and eight years previous to thisaction.
It is admitted that when Hudu Menika died her heirs were herfour children by her two marriages. The question here iswhether Appuhamy, the father of the three children by the secondbed, has a right of inheritance in their estate.
It is also, I believe, admitted that if the marriage had been inbinna the plaintiff would hate had no rights. (Sawer’s Digest,
P- i4).
The plaintiff Appuhamy brought this action or the partition ofthe landed property of his three deceased ehil uen and defendanton the footing that he was entitled to.; three-fourths and thedefendant to one-fOurth.,
The first question is, (1) On whom did Hudu Menika’s landed.property devolve? (2) On whom does that portion of it falling tothe children of the second bed deVolve?
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1903. According to the decision reported in 9 S. C. G. 45, following D.February 2G. (/.. Badulla, Iso. 14,512, reported in 2 Lorenz, p. 27, Hudu Menika'sMiddleton, property would descend per stirpes to her children of the two1- beds.
The half of her property would therefore devolve on thedefendant, and the other half on the plaintiff’s three children byher.
This being so, the plaintiff would not in any case be entitledthrough his children to three-fourths as he claims, but at the .mostto half. What right then has plaintiff to this half ?
Now, it seems to be the policy of the Kandyan Law that ances-tral property, when the line of descent is broken, goes over to thenext nearest line which issues from the common ancestor,(1 'S. 0. 0. 3). There is also, I believe, a recognized difference inthe social status of a binna husband from that held by a digahusband.
According to 2 S. C. C., p. 176-7, a diga husband inherits hisissueless ' wife’s acquired property. In D. C., Kandy 338(M odder, /). 45) a binna widower has been held to have no rightto or interest in his issueless wife’s property, whether ancestralor acquired. See also the case decided by the Collective Court,reported in 9 S. C. C., p. 34, which Mr. Justice Lawrie subse-quently dissented from (Modder, p. 166).
There is therefore a marked inferiority shown in the inheritingstatus of binna to diga husbands in respect of an issueless wife’slanded property.
Bearing in mind Sawer’s dictum at page 14, it is not difficult to*conclude that Armour at p. 76, section 15, paragraph 4, is speakingof & diga marriage.
Also that Sawer at p. 9 is referring to a diga marriage when hesays: “ that a wife dying intestate leaving a son who inherits herproperty, and that son dying without issue, the father has only alife interest in the property which the son derived or inheritedfrom or through his mother; at his,.father’s death such propertygoes to the son’s uterine brothers or sisters, if he has any,and failing these to the son’s nearest heirs or his mother’s$ftmily« ”
All the original authorities I have' consulted on Kandyan Lawseem to be indifferent to a regular discriminative and accurateuse of words, wfiich renders their meaning often somewhatobscure, but, so far as I am able to form an opinion, I hold thatthe plaintiff, the diga married widower, here succeeds to a life=interest in the estate of his three children, •
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The next question is whether the plaintiff, as owner of a life 1003.interest, is entitled to demand a partition under Ordinance No. 10 February 20.of 1368. In my opinion he is not, as the land does not “ belong Middletonto him in common with other owners ” according to section 2.J-
All plaintiff has is a life interest in one moiety, and I do notthink the Entail and Settlement Ordinance, No. 11 of 1876, couldbe applied on the ground of analogy. That Ordinance is directedto a specific object which does not include the case of an ordinarylife interest. I think, therefore, the appeal must be allowed, andthe judgment of the Commissioner set aside, and the actiondismissed with costs.