032-NLR-NLR-V-28-DINGIRIYA-v.-UKKU-AMMA-et-al.pdf
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Present: Schneider A.C.J. and Lyall Grant J.
DINGIBIYA v. UKKU AMMA et al.
22—D. 0. Kurunegala, 9,930
Kandyan Into—Properly inherited from mother—Intestate successionthereto.
A Kandyan died intestate leaving property, which he hadinherited from his mother who was married in binna. The plaintiffclaimed title to the intestate's property on a deed of transfer fromthe maternal granduncle and the cousin of the deceased, while thedefendants relied on a deed of sale from the binna married father.
Held, that the maternal granduncle of the intestate being thelawful heir, the title derived from him prevailed.
from a judgment of the District Judge of Kurunegala.
The facts .appear from the judgment.
Appultamy e. Qamarala 1 considered.'
Haylcy. for plaintiff, appellant.
Samarakoon, for defendants, respondent.
October 13, 1920. Schneider A.C.J—
Nanduwa, a Kandyan, inherited two allotments of land from hismother Horatalai who had acquired them by a deed. Horatalaiwas married in binna to Setuwa. Nanduwa died intestate, and theonly persons who might possibly be regarded as his heirs to the landsin question are Setuwa his father, Menika an uncle of his mother,and Puncha the son of another uncle of his mother who is dead.The plaintiff acquired title to the land by purchase from Menikaand Puncha, the defendants by purchase from Setuwa. The DistrictJudge upheld the defendants’ claim as he thought that the claimof the father Setuwa should be preferred to the “ mother’s grand-uncle's son, a very distant relation. ” He purported to follow thecase of Appultamy v. Gamarala (supra), but it seems to me that hehas misapprehended that decision. It was there held that the law aslaid clown by Sawyer should be accepted, with the limitation to befound in Armour, and that the claim of the binna married fatherof the propositus was to be preferred to the claim of the great-grandson of a sister of the great great-grandfather, the preferencebeing given to the husband as the relations on the mother’s sidewere “ distant ”. I agreed with the judgment in that case, buton further consideration I am doubtful whether the statement of1 Times of Ceylon L. R. 147 (1325); (1925) 27 X. L. R. 361.
1926.
1926.
Schneider
A.C.J.
Dingiriyav. UkkuAmma
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law by Armour should Ihj regarded as limiting the law as statedby Sawer. However, it was held in that ease that'the law asstated by Sawer should be followed. According to Sawer, thematernal uncles, and failing them, the. next of kin on the mother’sside, are the lieirs. Meniku being a maternal granduncle is, in myopinion, entitled to preference to Setuwa the binna married father.I do not think that Puncha succeeds as an heir together withMenika, that is, according to the application of the general principlesof the law of inheritance. No authority was cited to us to showthat he is entitled to so succeed. Even if the law as stated byArmour be regarded as limiting the law as stated by Sawer,neither Menika nor Puncha would he excluded by the binna marriedfather. Both of them would succeed as next of kin on the mother'sside who are not “ distant.*’ The instance of a distant relationgiven by Armour is “ mother’s granduncle’s son.” Puncha is theson of the mother’s uncle not granduncle. Armour clearly intendedto say that any relations nearer in degree than a mother's grand-uncle's son were not to be regarded as “ distant ” relations.Whether Menika and Puncha be regarded as joint heirs, or Menikaas the sole heir, the plaintiff is entitled to succeed inasmuch as liispurchase includes all the right, title, and interest of his vendors inthe lands in claim.
The learned District Judge's decree must therefore, be setjxside, and the plaintiff be declared entitled to the two allotmentsof land described in his plaint. He will have his costs in the DistrictCourt, and also of this appeal.
It was agreed at the argument of the appeal that from the landNo. 1 in the plaint should be excluded an extent of 1 pela in favourof the 2nd defendant. This 1 pela should bo so excluded in thedecree.
At the argument there were cited to us the following authorities:Modder’s Kandyan laic, pp. 492 and 002; Madder's Edition ofSawer1 $ Digest, />. 17: Pereira's Armour, p. 77: Marshall1 s Judg-ments, p. 354; An anonymous case from the District Court ofKurunegala No. 14,628 (Legal Miscellany, 1SG6, p. 8'>), the facts ofwhich art' to be found in Modder's Kandyan law9 p. 494, where thename of the case is given as Bandirala v Ukku Menika; PunchiMenika v. Dingiri Menika. 1; Appuhamy v. Dingiri Menika , 2: RanMenika v. MudalihamyA: Appuhamy v. Tiltiri MenikaA
It does not appear to me to be necessary to refer to these autho-rities further in my judgment, as the authorities are all, or nearlyall of them, discussed in Appuhamy v. Gamarala (supra).
Lyalj, (ritAXT J.—I agree.
Appeal allowed.
. * (1872-76) Ram. Rep. 130.2 (1839) 9 S. C. c. 34.
8 {1912) 16 N. Tj. R. 131.
*{t913)17N.L. R. 1.