022-NLR-NLR-V-10-DINGIRI-MENIKE-et-al.-v.-APPUHAMY.pdf
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1907.
February 8.
Present : ‘Mr. Justice Wendt and Mr. Justice Middleton.DINGIKI MENIKA et al. u. APPUHAMY.
D. C., Kandy, 2,313.
Kandyan Law—Intestate succession—Rights of diga father and uterinehalf-sisters of intestate's mother—Property inherited from the mother.
Where a Kandyan, whose parents were married in dtgat diedintestate and without issue, leaving him surviving his father, hismother’s mother, and two uterine half-sisters of hig mother, andwhere the intestate's estate consisted ' exclusively of lands inheritedby him from his mother, who had inherited them from her father,-—
Field, that the intestate's father wao sole heis to his festate, andthat the uterine half-sisters of the intestate’s mother were notentitled to any share thereof.
D. C., Kandy, 23,620 (1), followed.
T
HE respondent Appuhamy was the administrator of the estateof his son Punchi Banda, who died intestate. Appuhamy was
married to his wife, the mother of the deceased, in diga. Thedeceased left him surviving his father (the administrator), hismother’s mother, Ukku Menika, and the appellants, who were hismother’s uterine half-sisters, being issue of Ukku Menika by a secondmarriage. The estate of the-intestate consisted exclusively of landsinherited by him from his mother, who in turn inherited them fromher father, Punchirala, the first husband of TJkku Menika.
The appellants, who were the intestate's mother’s uterine half-sisters, applied for the judicial settlement of the estate of theintestate* on the footing that they were his sole next of kin andheirs-at-law of the intestate.
(1) (1852) Austin 155.
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The District Judge (J. H. de Sarain, Esq.) disallowed the applica- 1907.tion, holding that the intestate's father (the administrator) was the February 8.sole heir.
In appeal.
Walter Pereira, K.C., S.-G.t for the appellants (applicants).
H. J. 0. Pereira, for the respondent (administrator).
Cur. adv. vult.
8th February, 1907. Wendt J,—
This is a petition for the judicial settlement of the administrator’saccount on the footing that the petitioners are the sole next of Innand heirs of the intestate. The deceased, Punchi Banda, was a Kan-dyan, and he died intestate and without issue. He left no brothersand sisters or their issue, but was survived by his father (the respon-dent), by his mother’® mother, Ukku Menika, and by the petitioners,who are his mother's uterine half-sisters, being issue of Ukku Menikaby a second marriage. His estate apparently consisted exclusivelyof lands inherited from his mother, Punchi Menika, which she hadin turn inherited from her father, Punchirala, the first husband ofUkku Menika. The marriage of respondent and Punchi Menika wasin diga. Letters of administration were granted to the respondent(who, as diga-married father, claimed to be the sole heir), in prefer-ence to Ukku Menika and a brother of the present appellants, whowere counter-applicants.
The present petition was* dismissed by. the learned District Judge,who held that the father was the sole heir, and appellants haveappealed*. The District Judge followed the case D. C., Kandy,No. 23,620 (1). There the District Court had held that the fatherwas heir-at-law of his child in respect of land which the child hadinherited from her mother, in preference to the issue of the mother’spaternal aunt. The unsuccessful parties appealed (admitting,however, in the petition of appeal, as the District Judge informs us,that the marriage was a diga one), but the Supreme Court affirmedthe decision of the Court below. No reasons for the judgment ofthis Court are recorded.
Admittedly it has often been decided that the father is not theheir of his child born in a binna marriage in respect of propertyinherited from the mother. But the learned Solicitor-Generalargued that the binna marriage in the cases so decided was a mereaccident,9 and that the ratio decidendi applied equally to diga mar-*riages. We cannot assent to that contention. The institutionalwriters on Kandyan Law, who are our ultimate written authorities,appear to draw a distinction on this point between the two kindsof marriages. Sawer, at page 8 of the first printed edition, says:
(1) (1652) Austin 155.
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1907.“ Failing immediate descendants, that is, issue of his own body by a
February 8. 0f his own or a higher caste, a man’s next heir to his landedWbndt J. property is his father, and if the father be demised the mother, butthis (i.e., in the case of the mother) for a life interest only.”
He does not expressly state that it is a condition precedent to thefather’s inheriting that he should have been married in diga, but weknow that the diga was the most common form of marriage (see page84), and it would be a safe construction to understand this dictumas implying that form. Moreover, he states expressly on page 14:
1 ‘ The father is not the heir of the. property of his children bom in abinna marriage, which they have acquired through their mother.”He adds: “ The maternal uncles or next of kin on the mother’s sideare the heirs to such children,” relations whom the diga-marriedfather apparently excludes. Remembering that in the binna formof marriage the husband (with little or no property of his own, thewife having a large estate) lives in the wife’s house and is maintainedby her, whereas in the diga marriage the wife becomes a member ofher husband’s family, and forfeits in favour of her brothers all claimto inherit her father’s property, there appears to be reason for thedistinction between the husband’s rights as derived from the two-forms of marriages [see Naide Appu v. Palingurala (1)].
An undoubted difficulty, however, in ascertaining the rule ofinheritance is introduced by the passage at page 9 of Sawer: “ Awife dying intestate, leaving a son who inherits her property, andthat son dying without issue, the father has only a life interest inthe property which the son derived or inherited from or through hiamother; at the father’s death such property goes to the son’s uterinebrothers or sisters, if he have any, and failing them, to ‘the son’snearest heirs of his mother’s family.” , Sir Charles Marshall (Judg-nienta, pp. 388, 340) transcribes the passages 1 have quoted frompages 8 and 9 of Sawer, merely noticing that the limitation of themother’s right to a life interest is opposed to the author’s laterstatement at page 9, that the mother is absolute heiress-at-law ofher children dying without issue, and that she ‘has the power ofdisposal of the father’s paraveni estate which she inherits throughthem. Thev later authority Armour, however, lays down {firsteditiont p. 124; Per era* 8 editiont p. 76 that “ the father (by jaatekeurumu) is entitled to inherit the lands and other property which hiedeceased infant child had inherited from the mother, in preferenceto the relations of the person from whom that property had been, derived to the said child's mother.” He puts a case ix which amother having (presumably owing to the father’s having predeceased)inherited her child’s paraveni property has a son by? a second marriage(in binna) who inherits the property from her. This son dying in hisfather’s care, that father will inherit the property in preference to the
W (1879) 2 S. C. C. 176.
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representatives of the original owner from whom it had descended
to the first child, provided there is no other child of the mother February^
living. Where the binna father, not being the mother's ewessa Wbndt J.
cousin, had after her death deserted his child and left it entirely to
the care of the mother's family, the child's property would devolve
on the next of kin on the mother's side, in preference to the father.
Where, however, the father had looked after thja tchild until itsdeath he would succeed) in preference to the child's " (patent maternalrelations (mother's granduncle’s son, for instance), and that whetherhe was or was not the ewessa cousin of the mother." These passagesare an amplification with exceptions of the rule quoted from p. 14of Sawer.
In this unsatisfactory state of the authorities, the learned DistrictJudge, whose long administration of the Kandyan Law in theDistrict Courts of Kandy and Kurunegala entitles his opinion on acontroverted point to very great weight, has accepted the viewadopted in the case in Austin. No decided case distinctly negativiugthe father's right, which was there recognized, has been brought toour notice, and I think the judgment of the Court below, should beaffirmed.
I may add that at the argument, when counsel agreed that UkkuMenika was alive, I felt a difficulty in holding that her children, theapplicants, were nearer of kin than herself to the issue of her deceaseddaughter—in other words, that the half-sisters were nearer of kinthan the common mother. It is, however, unnecessary to decidethis point, or another points (which was dealt with in our judgmenton a former appeal), viz., whether, if the principle of the property• going back to the source whence it came is adopted, the appellantsare in the line of succession at all, being strangers in blood to PunchiMenika's father, from whom she had inherited.
Middleton J.—
I agree that in view of the conflicting character of the originalauthorities that Ve should affirm the learned District Judge'sjudgment following the case reported in Austin, p. 155, and hold thata diga-married father of an intestate dying without issue is entitledto inherit, before the uterine half-sisters and brother of his deceasedmother, the property derived from his mother which she, in turn,had inherited from her father.
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