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BANDULAHAMY v. RAMMENIKA.C. R., Ratnapura, 5,805.
Kandyan Law—Right of illegitimate children to maintenance out of inheritedestate of their father—Right of their mother to retain possession ofsuch land.
Under the Kandyan Law, the mother of the illegitimate children of aperson who has left him surviving his mother and brothers has no rightto retain possession of any portion of his ancestral estate on account ofthe maintenance of such children.
N this case the plaintiffs, who were the brother and the motherof one Malhamy, deceased, alleged themselves to be his only
heirs, and sought to recover one-half share of a land calledArambahenawatta and the. house standing thereon, which belongedto him by paternal inheritance. The defendant denied theirright and contended that she was the wife of the said Malhamy,and that he left three children by her as his heirs, and she claimedthe said share of the said premises, but at the trial she limitedher claim to maintenance only therefrom.
The Commissioner (Mr. T. R. E. Loftus) dismissed the peti-tioner’s claim in these terms: —
“ It was agreed that the first issue to be tried should be, whetherthe deceased Malhamy left any illegitimate children. Evidencewas forthcoming and not met by the plaintiffs. Defendantargued that the illegitimate children were entitled to maintenance,and plaintiff argued that so long as the children had anyacquired property they could not claim maintenance. I hold thatdefendants’ contention is right. The case cited for defendant(District Court, Kandy, 23,067, Perera’s Select Decisions, 186) doesnot apply. The Kandyan Law being silent, the Roman-DutchLaw must be followed. Defendant has therefore a right tomaintain her children from the produce of this land. Plaintiffs’action is dismissed with costs.”
• Bawa, for appellant.—The Roman-Dutch Law does not apply.The case of Subaliya v. Kannangara (Tambyah, 3), which restson Voet, does not apply to the Kandyans, because the KandyanLaw is explicit on the subject. The rights of illegitimate childrenunder the Kandyan Law are discussed in Perera’s Armour, p. 34,and Niti Nigandua, p. 14. Illegitimate children have no. right tomaintenance from the ancestral estate. Indeed, children born in
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wedlock of a low-caste mother do not succeed to the ancestralproperty, but only to the property acquired by the parents.Ancestral property vests absolutely in the blood relations of thedeceased owner, clear of any encumbrance for maintenance.The circumstances of the present case are not a casus omissus inKandyan Law, and therefore it is needless to refer to the Boman-Dutch Law. The illegitimate children may have a personal claimfor maintenance, but it must be formulated, and cannot beanything more than a claim for payment of money. It cannotbe a jus retentionis in regard to lands belonging to the deceasedfather. In Giranga v. Haramanis (2 8. 0. G. 191) it was heldthat the widow’s claim to maintenance did not justify a mortgageby her of her late husband’s lands.
Morgan, for respondent.—As the deceased father put thedefendant in possession of the land, she keeps it till maintenanceof herself and her children are properly provided for. Bankira.v. Kiri Etana (I G. L. B. 86). She has held possession for twelve- years, and has a claim on the estate of the deceased. Tambyah,pp. 2, 3. As the Kandyan Law is silent on the subject, the Boman-Duteh Law should be followed, and that law is in favour of therespondent.
19th August, 1902. Moncreiff, A.C.J.—
The first plaintiff and his brother Malhami owned equal sharesof a garden called Arambahena. Malhami died without apparentlyhaving married or leaving legitimate issue. He had cohabitedhowever, with the defendant, who says that she had three childrenby him. The plaintiffs, failing to obtain possession of Malhami’sshare of the house and garden, prayed for a declaration of title.The defendant simply denied that she had forcibly appropriatedthe produce of the land, or that she had caused the plaintiffs anydamage, and asked that the action might be dismissed. At thetrial she added that she had been Malhami’s mistress, and claimedmaintenance for her children. It seems that so far as acquiredproperty goes, the defendant is in possession of that, but itappeared to the Court that she had a claim for the maintenanceof the children upon the inherited property, and that the claimjustified her in resisting the plaintiffs’ action.
The plaintiffs argue that it is established, according to KandyanLaw, that illegitimate children cannot under such circumstances- as these claim maintenance out of the inherited property of theintestate father. Mr. Morgan, on the other hand, urges for thedefendant that there is such a claim, because there being here a10-
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c-asus omissus, an event for which the Kandyan Law does notprovide, the Roman-Dutch Law should apply.
I think I need not at the present moment offer an opinionon that point, because it appears to me—and my impression isstrengthened by the decision quoted from the 2nd volume ofthe 8. G. C. 191—that, even if' the defendant has a right tomaintenance out of the inherited estate of the man who was thefather of her children, that right does not carry with it any right toretain possession of the land and house, which under the KandyanLaw passed to the heirs of the intestate. I think the Commissionerwas wrong in dealing with the case as he did, and that his decisionmust be set aside, without prejudice, however, to any proceedingwhich the defendant may see fit to take with the view oE establish-ing the right of her illegitimate children to maintenance out ofthe inherited estate of their father.
BANDULAHAMY v. RAMMENIKA