024-NLR-NLR-V-19-BANDA-v.-BANDA.pdf
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1916.
Present: Wood Renton C.J. and De Sampayo J.
BANDA v. BANDA.
187—D. C. Kurunegala, 5,756.
Kandyan law—Is father heir to his illegitimate childf—Acquired property.
Under Kandyan law a father is not an heir to his illegitimatechild in respect of the acquired property.
fp HE facts are set out in the judgment.
A. St. V. Jayeivardene, for defendant, appellant.—It is a well-.recognized principle of the Kandyan law that the illegitimate childsucceeds to the acquired property of the father along with thelegitimate children. See 8 N. L. JR. 328, 10 N. L. R. 129, 10 N. L. R.153. It is a necessary corollary that the father succeeds to theproperty of the illegitimate child in the same manner as he succeedsto the property of the legitimate child. There is no authority tothe contrary.
E. T. de Silva, for the plaintiff, respondent.—The father cannotinherit property from illegitimate children. See Niti Nighanduwa,pages 12 and 15. Moreover, while it is the duty of a father toprovide for his illegitimate children, there is no reason why a fathershould take any benefit from an illegitimate child.
Cut. adv. vult.
Juhe 16, 1916. De Sampayo J.—
The point of Kandyan law which the appeal mainly raises iswhether the father is heir to his illegitimate child in respect of theacquired property. There is no direct statement on this specificquestion, either in the text books (with, perhaps, one exception,which will be presently noticed) or in the reports of judicial decisions.
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There is good authority for the proposition that an illegitimate *910.child succeeds to the acquired property of the father along with the de Sampavo
legitimate children. Appuhami v. hap ay a,1 Re S under a, Ran-hami v. Menik Etana.3 The exception among the text books Ireferred to is the passage at page 13 of the Niti Nighanduwa, onwhich counsel for the plaintiff-respondent in this case entirelyrelies. It is there said:“ Procreate right gives a title to a legitimate
nhiid from the father and to the father from a legitimate child, butit does not give a title to an illegitimate child. ” I was at firstinclined to think that as the first branch of this proposition is shownby the decisions above cited to require modification so far asacquired property is concerned, a similar modification might benecessary in the second branch of it also, especially as thereappeared no logical reason why, if the child succeeded to thefather's property, the father should not succeed to the child's. Butthe Niti Nighanduwa (at page 15) repeats the previous statementas regards the father in still more emphatic language, thus: " Onthe death of legitimate children their father may inherit theirproperty by blood-right, but he can never, as their father, do thisin the case of illegitimate children. ” I am able to find no sureground on which we may confidently refuse to give effect to the ruleso laid down. I think we also have to take account of the factthat it is not always possible to extract a logical principle from therules of inheritance in the local customary systems of law. In the
J.
Banda v.Banda
present instance the reason for the difference between the cases forthe father and child may, perhaps, be found in the suggestion ofcounsel for the plaintiffs, that the Kandyan law recognizes anobligation on the part of a man to provide for a child for whosebirth he is responsible, and so allows the child to succeed to thefather’s acquired property, while no such obligation attaches tothe child. In the Kandyan law the right by which the fathersucceeds to the child’s property, whenever he does so, is describedas jataka urume, and it is undoubtedly the case that in the treatmentof the subject the reference is to the property of a legitimate child.In the absence of a positive or direct authority to the contrary, Iam .not prepared to dissent from the opinion of the- District Judgethat the father of an illegitimate child does not inherit his propertyby jataka urume. In this state of the law I think we must decidethe question involved in this case in the negative.
The dispute in this ease is to certain property which the defendanthad transferred to his illegitimate son Kirimudianse, who diedunmarried and issueless.Kirimudianse's mother appears to have
predeceased him, and administration having been taken to hisestate, the property was sold to the plaintiffs by three other children
i (1905) 8 N. L. R. 328.
a (2007) 10 N.
® (1907) 10 N. L. R. 129.L. R. 153.
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1916. 0f his mother by a different father. It was argued that theDb Sampayo defendant’s deed was not operative, as it was without considerationand had not been delivered, and that in any event the vendors toBanda v. the plaintiffs were not the heirs of Kiriroudianse. The originalBandadeed has not been produced by the defendant, and I cannot well
say on the evidence in the case that it was not delivered afterexecution, and the District Judge held against the defendant onthe issue as to consideration. As regards the second point, Kiri-mudianse's mother, If alive, would' of course have been his heirrand in her default I think his half-sisters were his heirs.
I would dismiss the appeal, with costs.
Wood Benton C.J.—I agree.
Affirmed.