142-NLR-NLR-V-14-DINGIRI-BANDA-v.-KIRI-BANDA.pdf
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Aug. 17 >1911
Present: Lasceiles C J.
DINGIRI BANDA v. KIRI BANDA.
259a and b—C. R. Matale, 9,401.
Kandyan law—Person dying without ascendants or descendants—Contestas to acquired property between maternal uncle and paternal half-brother.
Under Kandyan law a maternal uncle is entitled to the acquiredproperty of an intestate in preference to the paternal half-brotherof the intestate.
T
N this case the plaintiff purchased the premises in dispute fromthe half-brothers on the father’s side of one Kalu Banda, the
original owner, who acquired the same on deed No. 5,099 datedNovember 20, 1895. The plaintiff’s right was disputed by thedefendant, who is the maternal uncle of Kalu Banda. Kalu Bandadied leaving no descendants or ascendants. The parties went totrial on the issue as to who was entitled to the acquired immovableproperty of Kalu Banda—his half-brothers (plaintiff’s vendors) orhiis maternal uncle (the defendant).
The learned Commissioner of Requests held that the propertyshould be divided equally between the half-brothers and thematernal uncle, and declared the plaintiff entitled to only a half ofthe premises. He also divided the costs.
Both plaintiff and defendant appealed.
J. W. de Silva, for the plaintiff.—Sawer (p. 13) clearly laysdown the law of succession as to acquired immovable property.The half-brothers have a better right than maternal uncles. Evenas regards inherited property, the half-brothers have a better rightthan maternal uncles (Pereira’s Armour 43).
The passages cited from Pereira’s Armour 118 and 154 by thedefendant in the lower Court refer to movable property.
Counsel cited Dingiri Menika v. Appuhamy ;1 Mudalihamy v.Bandirala ;2 Sawer 8, 13 ; Marshall 344, 348 ; Modder 188.
Vernon Grenier, for defendant.—Sawer (p. 13) seems to assumethat full-brothers and sisters taking and actually enjoying is acondition precedent to devolution as he sets out.
That the mother is heiress to acquired property of all kinds andnot merely to usufruct is now indisputable (Pimchirala v. Dingiri
1 (1900) 6 N. L. R. 735,* {1393) 3 N. 1. R. 209.
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Menika et al.,1 Mudalihamy v. Bandirala2), and preference for uterine Aog.ll,i9llrelatives is shown in 2 Thompson 642 (note), 648, 649, and 654.Dingiri
Mr. Modder, at page 188, has compared the tables, and gives his J?0.”*1 vopinion in our favour.
Cur. adv. vult.
August 17,1911. Lascelles. CJ.—
This appeal raises a question with regard to the Kandyan law ofinheritance. 'Kalu Banda, the propositus, died leaving no directascendants or descendants, and the contest is between Kalu Banda’spaternal half-brother, whose interest is vested in the plaintiff, andhis maternal uncle, the defendant. The property in dispute isacquired property. The Commissioner of Requests has divided theproperty equally between the plaintiff and the defendant, but I canfind no authority relating to acquired immovable property whichsupports such a distribution. Two conflicting sets of rules are givenby Sawer (Marshall 348) for the devolution of the acquired pro-perty of “ an unmarried daughter ” and “ a child ” (no distinctionbeing apparently made between the two cases). In the first set ofrules, which, for convenience, I will refer to as table A, the brothersand sisters of the father’s half-blood occupy the fifth place and thematernal uncle the sixth place. In the other table, which I will calltable B, maternal uncles and aunts rank seventh and half-brothersand sisters on the father’s side tenth. In discussing these two tablesof descent, Sawer, as reported in Marshall 348, states that table Awas in accordance with the opinion of the Adigar and some others,but that certain other chiefs took exception to table A in somerespects. I understand from Sawer’s notes that all the chiefsultimately agreed with the order of succession set out in table B.It is clear, I should add, from note 112 (Marshall 350) thatthese rules of descent apply to immovables as well as to movableacquired property. Mr. Modder, in his valuable work on Kandyanlaw, discusses these two tables of descent on pages 187 and 188, andstates that an inspection of the manuscript of Sawer’s notes hadsupplied additional reason in favour of the conclusion that table Bwas that which received the unanimous approval of the chiefs andwas adopted by Sawer himself. Mr. Modder has adopted table Bwithout qualification as the authority regulating the devolution ofthe acquired property of a child dying intestate.
Mr. Silva, for the plaintiff-appellant, relies on the rules of descentgiven on page 13 of Sawer's Digest, according to which the propertydevolves on brothers and sisters of the father’s half-blood in priorityto maternal uncles. Now, it is true that these rules have sometimesbeen regarded as applicable to acquired property, as in Mudalihamyv. Bandirala- and in other cases cited in Modder 188 ; but this
1 {1888) 8 S. c. c. 135,
1 {1898) 3 N. L. B. 209.
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An*/. 11 MU
La8CE!.LEH
C.J.
DingiriBanda v.Kiri Banda
construction involves a serious difficulty, for it can hardly be sup-posed that Sawer should, without any explanation or comment,have given two different and irreconcilable sets of rules for thedevolution of acquired property.
1 am inclined to think the latter part of the passage on page 13 ofSower*s Digest, namely, the part following the word “ ultimately,”applies to paraveni and not to acquired property. The passage iscertainly capable of this construction ; it begins with a reference toparaveni property, then follows a reference to acquired property;the sentence then proceeds “ ultimately it is decided,” &c. If theword “ it ” be construed as relating to paraveni property, placing theallusion to acquired property in a parenthesis, the rules of inherit-ance will apply only to paraveni property, and the contradictionwhfth would otherwise exist between this section and subsequentpassages relating to acquired property will be avoided. It isdifficult to extract the principle on which these rules are foundedbut inasmuch as the acquired property of a child dying intestatedevolves on the mother in preference to any other relative, it is notsurprising that the mother’s brother should rank before the half-brothers and sisters on the father’s side.
The decree must be set aside, and the action must be dismissedwith costs both here and in the Court below.
Defendant's appeal allowed.
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