APPUHAMY v. PERERA et al

050-NLR-NLR-V-40-APPUHAMY-v.-PERERA–et-al.pdf


Appuhamy v. Perera.
173
1938Present: Hearne J. and Wijeyewardene A.J.
APPUHAMY v. PERERA et al.
54—D. C. Colombo, 7,349.
Inheritance—Estate of illegitimate person—Husband sole heir in absence ofmother—Other illegitimate brothers and sisters not entitled to succeed—Ordinance No. 15 of 1876, ss. 30, 36, 37.
Where an intestate, a person of illegitimate birth, dies • leavingsurviving her, her husband and other illegitimate children of hermother.
Held, that the husband was entitled to succeed to the entire estate.^^PPEAL from a judgment of the District Judge of Colombo.
One Podihamy had seven illegitimate children, one of whom was Lucia.Lucia married in 1901 and died intestate in 1935 without leaving anydescendants. The appellant, as surviving husband of Lucia, claimedthe entirety of Lucia’s property to the exclusion of the respondentswho were either some of the illegitimate children of Podihamy or theirdescendants: The. District Judge held that the husband was entitled
* 22 Cal. 176." C. L. 683.
174
Appuhamy v. Perera.
to half of the intestate’s property and the respondents to the other>half.He was of opinion that The Matrimonial Rights and InheritanceOrdinance, No. 15 of 1876, did not provide for a case like this, which had,therefore, to be decided, under section 40, according to the rules of theRoman-Dutch law as it prevailed in North Holland,
H. V. Perera, K.C. (with him N. E. Weerasooria, K.C., and P. A.Senoratne), for petitioner, appellant.—The point at issue is governedby Ordinance and we need not speculate upon the Roman-Dutch lawrelating to it. Podihamy had seven illegitimate children, one of whomwas the deceased Lucia, who died intestate. As Lucia died leaving nochildren, the appellant, her husband, is entitled to the entirety of Lucia’sproperty. It is common ground that he is entitled to a half. As regardstfee remaining half, it is sufficient to consider the rights of the respondentswhip are the children of Podihamy, as the rights of the respondentswho are the children of any deceased child of Podihamy cannot be' greater.
The District Judge has purported to apply Roman-Dutch law, actingunder section 40 of Ordinance No. 15 of 1876. The old Roman-Dutchlaw never recognized the surviving spouse as an heir. He took his shareonly as a partner of the community. The difference between Romanlaw and Roman-Dutch law on this point appears in Van Leeuwen, vol. I.,bk. 3, ch. 15, art. 7 at p. 417 (1881 ed.). Community of propertywas, however, abolished by Ordinance No. 15 of 1876. The Ordinancebrought in the surviving spouse as an heir and gave him half and, incertain contingencies, the whole of the property. Under the old Roman-Dutch law, illegitimate children inherited from the relatives of themother. Our Ordinance has not adopted that rule—section 37, thefirst part of it. By the second part of section 37, relatives are brought inonly to prevent an escheat to the Crown. On the contrary, if there is asurviving spouse,therelatives ofthemother cannot claim. The
position, therefore, is that, where there is a surviving spouse, the secondpart of section 37 will -not operate, and the first part of the section will beapplicable unconditionally and conclusively. Sections 26, 28, 29, and 30have all to be read with section 37. Section 40 will be applicable in thepresent case, only if there had been no surviving spouse.
Chelliah v. Kadiravelu1, cited in the District Court, cannot help therespondents. Thatwasa case undertheOrdinance relating to Thesa-
walamai, whereasthepresent casehasto be decided according to
Ordinance No, 15 of 1876.
Fi A. Hayley, K.C. (with him M. Tiruchelvam), for first and secondrespondents.—Section 26 of Ordinance No. 15 of 1876 has to be appliedto the facts of this case. It definitely says that the surviving spouseshall inherit only a half. To claim the whole, he will have to satisfy therequirements of section 36. To satisfy that there are no other heirs,appellant has to argue that sections 29, 30, and 35 must each be readcoupled with section 37. Section 37 comes after section 36. It islogical to. presume that it would not cut into section 36, unless referenceis made to section 37 in section SB.
» (1931) 33 N. L. R. 172.
HE ARNE J.—Appuhamy v. Perera.
175
Th* ratio decidendi in Chelliah v. Kadiravelu et al. (supra) is applicableto the present case.
Section’s.29, 30, and 35 are not subject to section 37. “Children”include illegitimate children—Maxwell on Interpretation of Statutes, p. 106(1920 ed.). Interpret so as to maintain the law rather than to vary it.Who is a half-brother or half-sister ? It is conceded that mother makesno bastard. The result is that, by virtue of sections 29 and 30, claimantshave not failpH In a case where there are no heirs under sections 29 and30, the provisions of section 35 have to be applied.
The only express provision is section 26, section 36 constituting onlya proviso. Section 40 preserves the Roman-Dutch law in all matterswhere the Ordinance is silent. According to .that law, relatives in theposition of the respondents are considered half-blood for" the purpose ofinheritance. There is no provision which says that a brother of thehalf-blood, brought in by sections 29 and 30, does not include an illegiti-mate half-brother.
J. E. Alles (with him S. J. Ranatunge), for fourth respondent.
Peter de Silva (with him A. P. de Zoysa), for third respondent.—Undersection 37, children cannot be described as relatives of the mother.
H. V. Perera, K.C., in reply, cited Punchihamy v. KostanRelativesof the mother would include the other illegitimate children of Podihamy.The first part of section 37 leaves no doubt or room for argument.
Cur. adv. vult.
September 16, 1938. Heabne J.—
This appeal concerns the rights of succession to an intestate of_illegiti-mate birth.
The intestate, Lucia, was the wife of the appellant and the daughter ofPodihamy who had predeceased her. Podihamy had other illegitimatechildren and these children are represented by the respondents.
The relevant law is contained in Ordinance No. 15 of 1876. By virtueof the provisions of section 26 of that Ordinance the Judge held that theappellant was entitled to one half of the estate of the deceased and,following the view of Lyall-Grant J. in Chelliah v. Kadiravelu (supra) that“ the succession of a surviving spouse of a bastard is not expressly dealtwith in Ordinance No. 1 of 1911 or in that of 1876 ”, decided that accord-ing to the principles of Roman-Dutch law the remaining half “ should goto the other children of deceased’s mother ” and their representatives.
In the case of Chelliah v. Kadiravelu (supra) it was held that where awoman of illegitimate birth, subject to the Thesawalamai, died intestateleaving her husband and no issue, the legitimate issue of the motherof the intestate was entitled to succeed to her dowry property to theexclusion of her husband.
Drieberg J. considered the effect of section 37 of Ordinance No. 1 of1911 which reads “ When an illegitimate person leaves no survivingspouse or descendants, his or her property will go to the mother, and thento the heirs of the mother so as to exclude the Crown. ” The correspond-ing section in Ordinance No. 15 of 1876—it is the second part of
1 (1902) 2 Mat. cases 33.
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WIJEYEWARDENE A.J.—Appuhamy v. Perera.
section 37—is as follows : “ Where an illegitimate person leaves nosurviving spouse or descendants, his or her property will go to the heirsof the mother, so as to exclude the Crown
Drieberg J. held that section 37 of Ordinance No. 1 of 1911 did notmean that on the failure of descendants the husband or a wife ofillegitimate birth would take the entire estate to the exclusion of hermother and the mother’s heirs: it meant that the rights of the motherof an illegitimate child were subject to the rights of the deceased’schildren and the rights of her husband, that is to say, “ the right of thechildren to succeed to the entirety and the right of the husband to aseparation of half of her acquired property
With that view, if I' may say so with respect, I am in completeagreement. It was a statement of the statutory law, in so far as it wasnecessary for the determination of the appeal which Drieberg J. wasconsidering. As the deceasecLdeft no issue, as the husband had beengiven a half share of her acquired property, and as the mother’s rightswere only subject to the rights of descendants (if any) and the rights ofthe husband to particular property, viz., to a half of the after acquiredproperty, the mother, and failing her, her heirs, were entitled to succeedto the dowry property to the exclusion of the husband. " No furtherdifficulty arose. 'Hie mother of the deceased was dead but her heirs werelegitimate issue, and a consideration of section 36 of Ordinance No. 1 of1911 did hot arise. It is to be noted that Drieberg J. did not seek theaid of the principles of Roman-Dutch law : for in his opinion the pointhe had to decide was covered by the statutory law.
In the present case, however, there is an added difficulty. Lucia’smother is dead and, as it appears to me, the rights of her mother’s otherillegitimate children to succeed to any part of Lucia’s property arebarred by statutory law. The first part of sectioii 37 of Ordinance No. 15of 1876 l eads “ Illegitimate children inherit the property of their intestatemother, but not that of their father or that of the relatives of theirmother ”. The relationship between a mother and her illegitimatechild is well recognized in our law, and the consequence is that therespondents must fail. This- being the case, and all other personsenumerated in the sections prior to section 36 also failing, in the sensethat there are no such other persons in esse, the entire inheritance in myopinion must devolve under section 36 of the Ordinance upon theappellant as the surviving spouse.
I would, therefore, allow the appeal and declare the petitioner appellantentitled to the entirety of his deceased wife’s estate with costs in bothCourts.
WXJEYEWARDENE A.J.—
In this case certain questions of law arise with regard to the successionto the property of a bastard who died intestate in 1935 without leavingany descendants.
The* deceased Lucia Moraes was the wife of the petitioner-appellant.She was an illegitimate child of one Podihamy who was also, the motherof six other illegitimate children. Podihamy herself is dead.
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WIJEYEWARDENE A.J.—Appuhamy v. Perera.
The respondents fall into two groups : —
(o)illegitimate children of Podihamy.
<b) descendants of the deceased illegitimate children of Podihamy.
The petitioner’s claim to the entire estate of Lucia Moraes wascontested in the District Court by the respondents who claimed theentirety themselves as brothers and sisters of the deceased. The learnedDistrict Judge held that the petitioner was entitled to one-half and therespondents to the other half. The present appeal is by the petitioner-.The respondents have not preferred an appeal against the order of theDistrict Judge.
I propose to consider first the question of law whether the respondentshave a. right to succeed to any share of the estate of the deceased. Ithink it convenient, while discussing this question, to refer only to therights of the respondents who are the children of Podihamy and thatit is not necessary to refer to the rights of the respondents who are thechildren of any deceased child of Podihamy as the last-mentioned groupof respondents cannot have greater rights than the other group.
The respondents’ claim to a half-share of the estate is based on section30 of Ordinance No. 15 of 1876 which reads :—“Father and mother bothfailing, the property of the intestate goes to his brothers and sisters,whether of the whole or half-blood, and their children and other issueby representation ”.
It is argued on behalf of' the respondents that the section does notrequire that’the persons described in that section as “ brothers and sisters ”and the “ intestate ” should be the issue of a legitimate union and thatin any event the respondents could claim to be “ brothers and sisters ofthe half blood” as they are the children of Podihamy the mother of theintestate. The soundness of this contention could be tested by consider-ing the following simple case: —X and Y are the illegitimate sons of awoman A who is dead. Could X succeed to the estate of Y who diesintestate leaving a spouse and no children ? Now Y, who is an illegitimateson of A, is a relative of A. If X could succeed to any share of the intestateestate of Y under section 30 on the ground that he is a “ brother ” or“ half-brother ” of Y, the result is that X an illegitimate child inheritsthe property of Y a relative of his mother. This right to inherit theproperty of a relative of the mother is denied by section 37 to illegitimatechildren. The portion of section 37 relevant to the present questionis as follows:—“Illegitimate children inherit the property..of theirintestate mother, but not that of their father or that of the relatives ofthe mother ”.
The correct legal position appears to be that section 30 should be readg#)ject to section 37. The provisions of sections 26 to 36 of the Ordi-nance no doubt regulate the succession to the intestate estate of a personwhether such person is an issue of a regular or irregular union butwhere the intestate is an “ illegitimate person ” or the heirs are“ illegitimate children ” within the meaning of section 37, the earlierprovisions are modified by section 37.
In view of the argument put forward ori behalf of the respondentsthat in the absence of any clear provision to the contrary OrdinanceNo. 15 of 1876 should not be so interpreted so as to make the law of40/16
178
Vinayagamo&rthy v. Ponnambalam.
succession under the Ordinance differ from the law which governed thedevolution of estates prior to .the Ordinance, I think the decision of theSupreme Court in Sinno Appu v. Abeywickreme1 is not without someinterest. In that case the Court had to consider the succession to theintestate estate of a bastard who died before the Ordinance leaving himsurviving his mother and a “ brother ” and a “ sister ” who were two“ illegitimate ” children of his mother. It was there held that whetherthe question was decided under the North Holland Law of Inheritance orthe South Holland Law of Inheritance the “ brother " and the “ sister ”were not entitled to claim any share of the estate.
I think therefore that the respondents do not inherit any share of theestate of the deceased.
It remains to consider the further question as to the rights of thepetitioner. It is conceded by the respondents’ counsel that the petitioneras spouse gets a half-share under section 26 of the Ordinance. Theremaining half-share, also, I think, devolves on the petitioner by virtue ofsection 36 which reads : —“ All the persons above enumerated failing,the entire inheritance goes to the surviving spouse, if any, and if none,then to the next heirs of the intestate per capita
In the case of Lucia Moraes “ all the persons above enumerated ” havefailed within the meaning of section 36. As she was a bastard she couldnot have a father entitled to succeed to her estate. Her mother pre-deceased her. She left no descendants. As stated by me earlier, inview of section 37 she could not have any brother, sister, grandfather orother relative entitled to succeed to her estate under the earlier provisionsof the Ordinance.
I hol,d'that the petitioner is the sole heir of the estate of the deceasedand allow the appear with costs.
Appeal allowed.