042-NLR-NLR-V-20-DINGIRI-v.-UNDIYA-et-al.pdf
( 186 )
1918*
Present: Shaw J. and De Sampayo JDINGIRI v. UNDIYA et al.
431—D. C. Kegalla, 4,534.
Kandyan law—Husband dying leaving behind widow and illegitimatechildren-—Life interest of widow.N
A Kandyan widow is entitled to a life interest in the .wuoie of theacquired property of her husband to the exclusion of her husband’sillegitimate children.
K XRIBANDIYA, a Kandyan, died leaving a childless widow(who married a second time after Kiribandiya died) and anillegitimate child, the second defendant, a minor, who appeared byhis guardian, first defendant.
The widow (plaintiff) claimed in this action a life interest m theentire property, which consisted of only the acquired property of thedeceased.
The second defendant contended that plaintiff was entitled toa life interest in one-half of the property, and that second defendantwas entitled to the entirety of the property and to a life interest inone-half! The District Judge upheld the contention.
The plaintiff appealed.
J. W. de Silva, for the appellant.—The learned Judge vs wrong indeciding -that the plaintiff was entitled to possession of only one-half. Her second marriage does not deprive her of her rights (seeModder’s Kandyan Law, 325, 330; 6 N. L. R. 214; 19 N. L. R.260). Even the legitimate children, cannot deprive the widow ofher 'life interest. It was held that the children cannot bring apartition action for the acquired * property during the widow's ■lifetime (15 N. L. R. 154). They cannot sue her in ejectment(Moddcr 326).
[De Sampayo J.—Is Tikiti Menilca v. Menika1 against you?]There the children were legitimate children by another b=:d. Thesame principles do not apply to illegitimate children merely becausethey have a right to inherit the father's property along withlegitimate children. . Moreover, in the case referred to the Courtgave several illegitimate children only a life interest in one-half,but here there is only one illegitimate child. The most that the-second defendant can claim, if that case applies, is some allowance,and not a life interest in one-half the property. The Full Denchhas in Rankin v; ZJkku 2 decided the point against the respondents.
2 (1907) 10 N. L. R.'lZih
(1917) 20 N. L. R. 12.
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[De Sampayo J.—That was a contest between the rights of n sisterand an illegitimate child.] The widow was alive, and her rights tolife interest had to be considered. The Court held that the illegiti-mate children were entitled to the dominium only, and the widowto the life interest; the decision in so far as it refers to the widow’sright is not a mere obiter dictum. Counsel cited Modder, 403, 405,408, and 409; Rankin v. Ukku.1
J. C. Pereira (with him Batuwantudawe), for the respondent.—In Rankiri v. Ukku 1 the widow’s life interest was not in issue, but onlythe question of title. Illegitimate and legitimate children are no.wplaced on .the same footing. On the principle enunciated in TikiriMenika v. Menika 2 the illegitimate child must have a share, otherwisehe will have nothing to depend upon as long as the widow is alive.According to Kandyan law the father must maintain the illegitimatechildren. [De Sampayo J.—Yes, the father, but not the widow.She is entitled to life interest in property earned by her along withher husband.] That will be the same when there are legitimatechildren by the first bed, as in Ttlciri Menika v. Menika.2'
In Rankiri v. Ukku 3 Wendt J. says: “ It appears to be well settledthat where a man leaves both legitimate and illegitimate children,bis acquired property is shared between them, each branch takinga moiety.” The widow’s rights are limited where all the propertyconsists of acquired property. Counsel referred to 6 N. L. R. 214;19 N. L. R. 260.
J. W. de Silva, in reply.—Wendt J. in the passage cited at page135 refers .to the ultimate rights after the death of the widow (seeModder 408)
Cur. ad)), vult.
January 29, 1918. De Sampayo J.—
The facts on which a point of Kandyan law has arisen for lecisionare as follows. The plaintiff is the widow of Nekatdurage Kiri-bandiya, who died intestate leaving an estate consisting entirely ofacquired property. There were no children of the marriage betweenthe plaintiff and Kiribandiya. The second defendant, who. is aminor and is represented in this action by the first defendant, i? anillegitimate child of Kiribandiya by another woman. The plaintiff,who. as widow, claims to be entitled to a life interest in the entiretyof the property, has brought this action for possession of the propertyand for damages. The defence is that the second defendant issolely entitled to the lands in question, subject only to the plaintiff'slife interest in half thereof; and the first defendant, who has been inpossession of the lands on behalf of the second defendant, pleadsthat he is, and always was, willing to render to the plaintiff a half
1 {1903) 7 N. L. R. 364.2 {1917) 20 N. L. R. 12.
8 {1907) 10 N. L. R. 129. at page 135.
1918.
Dingiriv.
Undvya
( 188 )
1018. .share of the produce. The District Judge has upheld the contentionBe Sampayo of defendants, and has entered judgment for the plaintiff forJ*possession of an undivided half share of the. lands and for the
Dingiri c.value of half share of the produce as damages. The plaintiff has
Vndiya appealed.
It is true, as a general proposition, that under the Kandyan lawthere is no distinction between legitimate and illegitimate childrenwith regard to succession to the acquired property of the father, buthow far can the widow’s life interest be affected thereby? Theright of inheritance appears to be founded on the supposed obligationof the father to make provision for the maintenance of his illegitimatechildren, but the same consideration does not apply to th? widow,who is entitled to the life interest by matrimonial right rather thanbv. succession. As was observed by Lascelles C.J. in Kuda Etanav.‘ Ran Etana,1 the widow’s right to the life interest is “ a privilegeallowed her by the law, which rests, at any rate partly, on thepresumption that the acquired property was purchased by thesavings and exertion of the wife as much as by .the husband.’*Legitimate children born to her and the deceased Ijave uo right ofpossession during her lifetime, and I can find no indication, in theKandyan law that illegitimate children of the deceased by anotherwoman are in a better position. Nor can the contention to thecontrary derive any support from the decision in Tikiri Menika vMenika.2 It was no doubt decided there that, where the deceasedhad children by a first wife and left no paraveni property thewidow's life,interest did not extend to the entirety of the acquiredproperty, but only to a share, and that the children of the first bedwere themselves entitled. to the immediate possession of the othershare. The District Judge has, I think, made too large a deductionfrom that decision. Because illegitimate children are put on thesame, footing as legitimate children with regard to succession, hehas regarded illegitimate children as having the same right as thefirst bed children as against the widow. There is no warrant fprsuch extension of the above decision, which was founded on author-ities dealing with the case of the widow of a man who lawfullymarried more than once and left children by a former wife. Thef*ase of children of a concubine is quite different, and the Kandyanlaw does not appear to recognize any right in them to cut down thewidow’s life interest. This point is not without judicial authority.See the-Full Bench decision in Rankin v. JJkku.3 There, no doubt,the question was as to the right of ai sister as against the illegitimatechildren, but it was necessary for the decision of that question toconsider whether the widow did not exclude the illegitimate children.The District Judge in that case had purported to follow the judg-ment of L^wrie A.C.J. in M ah atm ay a v. Banda,* and had decided
1 {1912) 15 N. L. R. 154.3 {1907) 10 N. L. R. 129.
1 {1917) 20 N. L. R. 12.4 {1893) 2 S. C. R. 142.
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that the widow excluded the illegitimate children, and his decisionwas affirmed in appeal-1 But in review preliminary to an appealto the Privy Council the judgment in appeal was reversed, and theCourt explained or overruled the judgment of Lawrie A.C.J. inMahatmaya v. Banda,2 and held that the illegitimate children wereentitled to succeed to the acquired property in preference to the sister,but subject to the widow's life interest. If the illegitimate children,in the view of the Court, had any right to immediate possession evenof a share, it would have been necessary, in that case, to decree it tothem. I think it is clear that the effect of the decision was to holdthat the widow was entitled to a life interest in {he entirety of theacquired property.
T accordingly think that this appeal is entitled to succeed. I wouldset aside the judgment appealed from, and direct that the plaintiffshould have judgment for possession of the entirety of thelands, and also for damages at the rate of Bs. 850 per annum, whichit was agreed at the trial was the total nett income. It was thefirst defendant who was in possession of the lands, and he alone wasoriginally sued. The second defendant was added as a party inconsequence of his allegations in the answer, and probably on thataccount the District Judge ordered the plaintiff to pay costs ofaction to the first defendant. But now that the plaintiff fullysucceeds, I think the first defendant alone should pay to plaintiffthe costs of the District Court and of this Court.
Shaw J.—
I agree that we should follow the opinions expressed by the
Judges of the Full Court in the case of Ranteri v. Ukkuf that a .Kandyan widow is entitled to a life interest in the whole of theacquired property of her husband to the exclusion of her latehusband’s illegitimate children, and that the case of Tikiri Menika v.Menika4 is not an authority in favour of the respondent's conten-tion in the present case. ' The appeal should, therefore, be allowed,and I agree to the order as settled in my brother De Sampayo’sjudgment.
Appeal allowed.
1918.
De Saupavo
J.
Dingiri v.Undiya
'(1903) 7 N. L. R. 364.*11893)2 8. C. R. 142.
(1907) IO N. L. R. 129.
(1917) 20 N. L. R. 12.