Bandara Menike v. Imbuldeniya
1949Present: Wijeyewardene C.J. and Gunasekera J.BANDARA MENIKE, Appellant, and IMBULDENIYA,Respondent
8. C. 28—D. C. Kandy, 2,040
Kandyan Law—Estate of deceased husband in debt—Minor children—Paymentof debts—Right of widow to mortgage property of deceased.
Under the Kahdyan'law a widow has the right to mortgage the estateof her deceased husband for the payment of hia debts.
1 (1910) 13 N. L. B. 259.
GTXNASEKERA J.—Bandara Idenike v. ImbtUdeniya
^^.PPEAL from a judgment of the District Judge, Kandy.
H. W. Jayewardene, for plaintiff appellant.
N. E. Weerasooria, K.G., with H. W. Tarribiah, for defendantrespondent.
Cur. adv. vult.
June 3, 1949. Gunaseoka J.—
This is an action for declaration of title to a land. The original ownerKiri Banda died leaving as his heirs his widow Pinchi Menika and fourchildren, one of whom is the plaintiff-appellant. In 1944, the otherthree children conveyed their interests in the land to the plaintiff. PinchiMenika died in 1948.
On January 17, 1910, after Kiri Banda’s death, Pinchi Menika (whowas subject to the Kandyan Law) had mortgaged the land and raiseda loan to pay off his debts. The mortgagee’s rights ultimately passedto one Silpa, who put the bond in suit and in due course bought themortgaged property at a sale held in satisfaction of the mortgage decree.His rights devolved on the defendant-respondent in 1935.
It appears to be common ground that the value of Kiri Banda’s estatewas less than a thousand rupees.
The learned District Judge dismissed the plaintiff’s action, holdingthat Pinchi Menika was entitled to mortgage the land.
At the time of the execution of the mortgage bond Kiri Banda’schildren were all minors; but two of them were over fourteen years ofage,having been born on May 12, 1892, and March 13, 1895, respectively.It is contended for the plaintiff that the mortgage bond could bind onlyPinchi Menika’s life interest and was ineffective to bind the interests ofthe children, for the reason that Pinchi Menika had not obtained theconsent of the two children who were over the age of fourteen ; and thatconsequently all that passed to Silpa and later to the defendant was onlythe life interest of Pinchi Menika, who died in 1948.
The basis of this contention is the rule formulated in the followingpassage in Sawers’ Memoranda and Notes :—
“ A widow having the administration of her deceased husband’sestate may, in the minority of her children from necessity, mortgagethe landed property; but it must be clearly to satisfy the mostnecessary and urgent wants of the family, otherwise the children mightnot be held liable to pay the debt. But in all cases where the childrenare grown up to fourteen or fifteen years of age, their consent isnecessary to such a mortgage being valid against them and their land ”.
(Hayley's Sinhalese Laws & Customs, App. I.-, p. 33)
What is dealt with in this passage, however, appears to be the extentof the widow’s right to mortgage the family property to meet urgentfamily needs, and not her right to mortgage it to pay the debts of thedeceased.
GTJNASEK.ERA J.—Bandara Menike v. Imbiddeniya
The Kandyan Law imposes on the widow the dnty of paying herhusband’s debts and gives her the right to sell his lands for that purpose :Appuhamy v. Kirihenaya1; S.C. 89—D.C. Badvlla, 8,470 ®. It is argued forthe appellant that it does not follow that she has a right to mortgage theproperty without the children’s consent. It is not suggested that while thewidowi is responsible for the payment of the deceased’s debts the childrenhave the right to decide whether she should be permitted to sell his lands forthe purpose. It is contended, however, that a mortgage would need theirconsent because, it is said, other lands of the estate would be liable to besold for the recovery of any portion of the debt that may be left unsatisfiedafter the sale of the mortgaged property. It appears to be a sufficientanswer to this contention that all the property of the estate would inany event be liable to be sold for the recovery of the deceased’s debts,and that under the Kandyan Law the widow is entitled to sell all thelands, if necessary, for the payment of these debts.
The liability of a widow under the Kandyan Law to pay the debtsof her deceased husband has been described as that of “ a sort ofadministratrix ”:Supen Chetty v. Kumarihamy3. In Britoe v.
Moekoetna4, a case reserved for collective decision, the Supreme Courtheld that “ by the settled practice, an administrator is at liberty toalienate, and consequently to encumber, the whole of the estate entrustedto him ”. Dr. Hayley says (Sinhalese Laws and Customs, p. 496) thatthis decision was followed in several cases in the Kandyan Districts,and he cites the cases of Mwrugappa v. Christina6 and Lokoo Banda v.Medduma Banda*. The former was a case of a mortgage by a widowacting in the capacity of administratrix of her husband’s estate and thelatter was a case of a sale by an administratrix. Though neither of thesecases is directly in point, they appear to support the view that aKandyan widow, being at liberty as “ a sort of administratrix ” toalienate the whole of her husband’s estate is consequently at liberty tomortgage it for the purpose of paying the deceased’s debts. Thereappears to be no reason in principle for holding that while she has theright to alienate the property she has not the right to mortgage it.
I would dismiss the appeal with costs.
Wijeyewaebene C.J.—I agree.
3 (1896) 2 N. L. R. 155.* S. C. M. 15.11.48.
3 (1905) 3 BalJ-96.
* (1838) Morg. Dig. 252.
(1846) B. <£> S. 6 ; (1843-55) Ram. 65.
(1862) B. <& S. 34.
BANDARA MENIKE, Appellant, and IMBULDENIYA, Respondent