DUNUWEERA v. MUTTUWA et al

126-NLR-NLR-V-43-DUNUWEERA-v.-MUTTUWA-et-al.pdf


512
Dunuweera v. Muttuwa.
1942Present: Moseley S.P.J. and de Kretser J.
DUNUWEERA v. MUTTUWA et al.
41—D. C. Kandy, 5,229 (Testy.).
Kandyan Law—Diga-married woman—Acquired property—Right of survivinghusband to inherit—Failure of issue.
Where a Kandyan woman married in digo dies without issue, thesurviving husband succeeds to her acquired property in preference toher brothers and sisters.
Seneviratne v. Halangoda (24 N. L. R. 257), distinguished.
^^PPEAL from an order of the District Judge of Kandy.
One Kuda Ridee, a diga-married Kandyan woman, died issueless in1935, and her estate is being administered in this case by the petitioner,her husband. She has also left two brothers and a sister.
When Kuda Ridee was five years old her father had gifted certain landsto her. He died in 1912 and she married in 1922.,
The question was, who was entitled to her acquired property. The casewas argued on the footing that the lands gifted to her were her acquiredproperty. The learned District Judge held that the respondents werethe heirs to Kuda Ridee’s acquired property.
N. E. Weerasooria, K.C. (with him S. R. Wijayatilake), for petitioner,appellant.—-The question that arises for determination is whether thewidower being married in diga succeeds as an heir of his deceased wifeto the properties gifted to the deceased by her father before her marriagein preference to his deceased wife’s brothers and sister.
Property gifted to a person is classed among “ acquired ” propertyas opposed to paraueni or ancestral property.
Sawers, in his memoranda reproduced by Hayley in his Sinhalese Laws ■and Customs, Appendix I, page 12^ states categorically and without anyqualification that the husband is heir to his wife’s landed property whichwill at his demise go to his heirs. Sawers is here dealing with the caseof diga-married spouses and of acquired property. No distinction isdrawn between property acquired before marriage and during coverture.In A7aide Appu v. Palirtgurcila1, Dias J. states that the oldest authoritybearing upon the point is to be found in Sawers’ Digest- where Sawers'lays down in general terms that the husband is her to her landedproperty. He proceeds to say: “ On a careful review of all the authorities^upon the subject, I am of opinion that a diga husband is the heir.:and is entitled to succeed to the acquired property of the deceased wife ”!1Cayley C.J., in the same case, says: “ It seems quite clear from Armourthat a diga husband inherits his wife’s acquired ‘ goods ’ if she dies withoutissue. What Armour meant by the word ‘ goods ’ may be doubtful,but I am disposed to think that, in this expression, he intended to includeall kinds of property. If not, it is difficult to understand why he hasleft altogether untouched the important question of the devolution of
1 (1879) 2 S. C. C. 176.
Dunuweera V. Muttuwa.
513
land in cases of this kind. In any case, it is difficult to see why a differentprinciple should be applied to the devolution of acquired lands from thatwhich go ems the devolution of other description of acquired property ”,‘In this case, although the subject-matter of the dispute was propertyacquired during coverture, it was not a material factor which promptedthe decision of the case. The law was laid down generally that a digahusband was his wife’s heir to the exclusion of her sisters, so far as relatesto her acquired property, whether real or personal. Middleton J., inAppuhamy v. Hudu Banda1 at 244, accepts this view as correct when he says:“According to 2 S. C. C., p. 17G-7 a diga husband inherits his issuelesswife’s acquired property ” and he too does not seek to differentiatebetween property acquired before and after marriage. Sampayo andPereira J.J., :n Tilciri Banda v. Appuhamy-, discuss the judgments ofCayley C.J. and Dias J., and they too think that the proposition laiddown refers to “ acquired property ” in general and is not restricted toonly property acquired during coverture. Modder in his Principles ofKandyan Law, while discussing the rights of a diga-married widower,comes to the same conclusion when he sums up in an article (204) atpage 347 2nd edition) : “ A diga widower succeeds to all the acquiredproperty of his wife, dying intestate and without issue, in preference toher brothers and sisters ”. It might be argued that Garvin J., inSeneviralne v. lialangcda 3, had taken a different view when he held thatproperty, in the nature of a dowry left by a deceased diga-married woman,who died intestate, devolves on the heirs of the mother of the deceased inpreference to the widower. Garvin J’s reasoning in that case is on adifferent basis. There he was concerned with the dowry of the deceased andhe quoted Armour as his authority for taking the view that the widoweris not entitled to succeed to such property. He refers to Naidc Appu v.Palingurala (supra) and Tikiri 13anda v. Appuhamy (supra) and attemptsto read into them a distinction between property acquired before andduring coverture, although those cases did not seek to draw this distinc-tion. There are no grounds for this very artificial distinction. Theessence of a diga marriage is that the woman severs her connectionswith her family and joins her husband.”
It would appear that a diga-married woman is under greaterobligations to her husband than a binna married woman, and this mayprobably account for the distinction, if any distinction there be,between the rights of binna and diga husbands with regard to their wifes’property.
In Kalu v. Lami', Layard C.J. discusses this distinction betweenproperty acquired before and after marriage and, having referred to ajudgment of the Full Court reported in Ramanathan’s Reports (1861),.p. 112, dismisses it as artificial and foreign when considering the rights ofa widow. There is, therefore, no reason why this capricious distinctionshould be maintained in the case of a widower when it nullies the effectof a marriage in diga.
[de Khetser J.—in Scncvzrctne v. Halangoda (supra) Garvin J. wasinquiring into the claims of the mother of the deceased.]
1 (1903) 7 K. L. R. 242.s (1922) 24 N. L. R. 257.
* IS N- L. R. 105 (F.B.) p 108-110.‘ (1905) 11 N. L. R. 222
514
Dunuvoeera v. Muttuwa.
N. E. Wleerasooriu, K.C.—That is so. In this case the claimants arethe brothers and a sister of the deceased. Garvin J’s judgment, even ifcorrect, would not apply to a case like this, where the respondents areclaiming in their/ own right as collaterals and not through the mother ofthe deceased.
H. V. Perera, K.C. (with him M. T. de S. Amerasekere, K.C., and R. N.Jlangakoon), for the respondent.—The question is whether it is the' brothers and sisters of a deceased Kandyan woman or her diga-marriedhusbandthat is entitled to succeed abintestato.It washeld in
Seneviratne v. Halangoda (supra) that where a Kandyan woman diedintestate and issueless her diga-married husband was hot entitled to succeedto the property because it had been acquired before coverture. In thiscase too we have the elements of diga marriage, death issueless andintestate and property acquired, before coverture. The appellant isclearly not entitled to succeed as the facts are indistinguishable. Theattemptto distinguish Garvin J’s decision on thegroundthat the
property there was dowry property is fallacious. From Garvin J’s ownstatement as to the point he was determining, it is clear that what wasimportant for him was not the property being dowry property but itsacquisition before coverture. Ke only once refers to the fact that theproperty was dowry, but significantly only for the purpose of drawingthe inference therefrom that the property was acquired before coverture.That the ratio decidendi has for. all these years been understood byKandyans themselves to have been theacquisitionbeforecoverture
is shown by the 1935 Report of the Kandyan Law Amendment Com-missionwhich states the principle laiddown byGarvinJ. It is
clear that it accepted the case as correctly laying down the Kandyan law.Otherwise, it would have recommended legislative action. Counsel alsocited Hayley, p. 462. Even the appellant at the trial endeavoured tofall outside the principle laid down in the case by showing that theproperty, in this case, unlike the property in that, had been acquiredafter coverture. Though conceding that the gift to his wife was madea long while prior to her marriage and to a girl merely five years of age,evidence was lead, calculated to prove an intention on the part of thedonor to postpone the operation of the gift till after marriage. Sawers’statement' that the diga-married widower is heir to. his wife’s estatemust be read subject to certain qualifications as pointed out by Garvin J.Else certain absurdities result. The statements in the various commen-tators on the customary law are vagqe. We have, however, an authorita-tive and unambiguous interpretation by the Supreme Court of the law.During the last twenty years innummerable dealings have taken placeon the basis- of that decision. Even if this Court thought that anotherinterpretation of the commentators was possible, it should, as presentlyconstituted, follow the decision of Garvin J. as the facts in the presentcase .are absolutely indistinguishable in principle. The only other propercourse would be to refer the point to'a fuller Bench.
N. E. Weerasooria, K.C. (in reply).—Seneviratne v. Halangoda (supra)does not cover the facts in the present case.
Sawers is the best authority on Kandyan Law. Armour's opinionhas not the same weight as Sawers, for he was not a judge but only an
DE KRETSER J.—Dunuweera v. Muttuwa.
515
interpreter. Sowers, “ whose long experience and extensive acquaint'ance ”, in the words of Marshall, “ with the laws and customs of theinterior of the Island, and the care which he seems to have taken inprocuring the best native opinion on these – subjects, and in collectingthem when they differ, give a weight and value to the collection, so far asit goes, which no learning merely legal, and unassisted by local observa-tion and practice, can lay claim to ”—vide Modder 2nd Ed., XLV.
His memoranda are not mere random jottings. There is a scheme in hispresentation of the law and his notes show that his memoranda are notmere comments but succinct expressions of the laws and customs at thetime.
If this appeal is allowed your Lordship’s Court will only be upholdingthe view taken by Cayley C.J. and Dias J. in Naide Appu v. Palingurala(supra) and later approved of by Middleton J. in Appuhamy v. HuduBanda (supra) and Sampayo J. and Perera J. in Tikiri Banda v. Appuhamy(supra). This proposition recognised by judicial authority, commentatorsand text book writers, is only the natural consequence of a marriage in diga.
Cur. adv. vult.
September .9, 1942. de Kretser J.—
The deceased, Kuda Ridee, died in 1935 issueless, and her estate isbeing administered in this case by her husband, the petitioner. She alsoleft two brothers and a sister, one of them being the third defendant-respondent. When Kuda Ridee was five years old her father had giftedto her the lands numbered 1 to 5 in the inventory. He died in 1912,and she was married in 1922. The case was argued on the footing thatthe lands gifted to her were her acquired property. This is the correctposition, in view of a number of decisions of this Court, the latest ofwhich is Lebbe v. Banda In that case it was sought to impress on theproperty gifted the quality it had before the gift of being paraveniproperty. Drieberg J. saidour Courts have in questions
of inheritance always regarded paraveni property as meaning ancestralproperty which has descended by inheritance, property derived by anyother source of title or by any other means being regarded, as acquiredproperty. ”
Mr. Perera, for the respondent, limited the question in this case to onepoint, namely, whether the husband, where the marriage was in digaand where the wife died issueless, had any rights in property acquiredby his wife before coverture, and he relied on the judgment of this Court,in Seneviratne v. Halangoda (supra).
The authority of Sawers has always stood high and there is repeatedtestimony to this fact in our law reports. I do not think, however,that it has been sufficiently realised tlat Sawers’ Memoranda were notmerely the work of a diligent scholar but were compiled under the expressinstructions of the Government.
Anybody examining the archives will find that, shortly after theBritish occupation, Sir Alexander Johnstone, Chief Justice, either under-took or was commissioned by the Council to collect the customary lawsof the Island. Instructions were accordingly sent out to Government
» 31 X. L. R. 28.
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DE KRETSER J.—Dunuweera v. Muttuwa.
officials, and it was in this way that the compilation known as Thesavala-mai was discovered and the Mohammedan Code of 1806 compiled.Similar instructions had been sent out regarding the Kandyan Law,and as a result D’Oyly made some Notes, reference to which will be foundin the “ Decisions of the Supreme Court ” collected by Perera. Tumour,the Government Agent of Sabaragamuwa, also collected some informationwhich will be found in Madder’s Copy of Sawers’ Digest published in 1921.
In Hayley’s Singhalese Laws and Customs will be found Sawers’ officialletter to the Chief Secretary, dated December 30, 1826. Armour,Secretary to the Judicial Commissioners’ Court, attempted to carry onwhat Sawers began. Sawers was the Judicial Commissioner and tookvoluminous evidence before he compiled his Memoranda. His workbears evidence not only of his diligence and knowledge of the countrybut also of the methodical manner in which he approached his subject.His arrangement of subjects has not been recognised frequently.
At the argument, section 31 was relied on by Counsel for the appellant.
In that section Sawers says that “ the husband is heir to his wife’s landedproperty, which will at his demise go to his heirs ”. This is an un-qualified statement and I see no reason why it should be qualified. Itclearly applies only to property acquired during a marriage in diga,for in section 3 Sawers had already stated that a daughter married indiga loses her rights in the landed property of her parents, and insubsequent sections he had dealt with the daughter married in hinna. .Since the diga-married daughter lost her rights to the paraveni lands,Sawers’ statement must apply only to landed property which she hadotherwise acquired. It is now too late to consider the question whetherSawers would not have said that ancestral property given by way ofdowry or apportioned by a parent at a division j?f his property stillretained the quality of paraveni land. Nowhere has either Sawers orArmour dealt with that specific question.
The statement- in section 31 that the property will at the husband’sdemise go to his heirs need not necessarily mean that he had only anestate for life. Sawers was dealing with the question of inheritance,and there would be nothing to inherit if the husband dealt with theproperty. Probably he is here indicating what happens to the propertyat the husband’s death, making it clear that the property goes to thehusband’s heirs and hot to the heirs of the wife. There is, however,one instance in which the voice of the dead wife speaks and that is wherethe husband contracts a second marriage. We are not, however,concerned with the case where issue was left.
In section .31, Sawers makes no distinction between property acquiredbefore coverture and property acquired during coverture. It wasrather assumed during the argument that he had no such distinctionbefore bis mind at any time. I doubt if this is correct, for when he comesto deal with succession to Movable Property (in the next chapter) heclearly makes the distinction in section 7 : movable property receivedby the wife from her parents reverts to her family when she dies withoutissue, “ but the husband inherits aii the property acquired during thecoverture, but that only. ” Seeing that Sawers makes that distinction soemphatically, it seems hardly likely that he would not have made a similar
517
DE KRETSER J.—Dunuweera v. Mv.ttv.wa.
distinction regarding immovable property, if such a distinction existed.In this section (7) he assumes that before marriage a woman wouldacquire property only from her parents. He uses the words “ all theproperty ”, and unless one bears in mind that the chapter deals withmovables one might be inclined to apply it to immovables also.
Section 31 of chapter 1 came up for consideration so far back as 1879in the case of Naide Appu v. Palingurala (supra). There the property inquestion was property acquired after the marriage, but there is nothing inthe judgments of the Court to indicate that it was limiting its judgmentto that class of property only. The passage in Sawers is referred to andArmour is invoked in a passage where he speaks of “ goods ”. Adecision in Austin’s Reports was also considered. The Court did notnote that Sawers was dealing separately with movable and immovableproperty. Dias J. arrived at the conclusion that on a careful review ofall the authorities a diga husband was heir to the acquired property ofhis deceased wife. Cayley C.J. was doubtful as to what Armour meantby the word “ goods ” but in view of the fact that Armour had leftuntouched the question of the devolution of land was inclined to thinkthat the word “ goods ” included property of all kinds.
Another possible explanation, of course, is that Armour did not sort outhis notes as carefully as Sawers had done. But, in fact, Armour did dealwith the devolution of land. In Sinhalese there would be no confusionbetween the words for movable and for immovable property. In the copy ofArmour’s Grammar, which is in the Judge’s Library, Armour himselfgives the words. It is also difficult to believe that a person having aknowledge of the English language, as Armour doubtless had, would usethe word “ goods ” to describe immovable property.
In the case reported in Austin's Reports (p. 66) the District Judgehas relied on the passage in Sawers at page 16 (i.e. section 7 of chapter 2of Modder’s Edition) and quite clearly had failed to realise that thatpassage applied to movable property. Cayley C.J. saw no reason whythere should be a different principle governing the tv/o types of acquiredproperty.
In the edition I referred to, Armour quotes within inverted commas(at p. 26) Sawers’ statement that “ a wife dying intestate, leaving ahusband and children, her peculiar property of all descriptions 'goes toher children and not to her husband As I have already stated, thispassage applied only to movable property. Sawers’ use of the word“ peculiar ” is striking. Lower down on the same page Armour refers tolanded property. Dealing with “ goods ” received from her parents asdowry', he states that this “ will remain to her husband, and her brotherwill have no right to the said goods ”. The brother would have no rightalso to the goods acquired during her diga coverture even on the groundof a bequest from his sister. But if the deceased wife's mother survived,she would be entitled to all the property that belonged by right ofinheritance and as dowry to the deceased daughter, the husband beinglimited to the property acquired during the coverture. Even, therefore,if we accept the authority of Armour, we must accept the interpretationeither that “ goods ” included landed property or that it did not. If itdid, he expressly states that the goods received from her parents will
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DE KRETSER J.—Dunuweera t). Muttuwa.
remain to the husband to the exclusion of her brother. In this case,therefore, where no parent survives, the husband would be entitled tothe property. If the expression “ goods ” did not include landed pro-perty, then the statement in Sawers remains uncontradicted.
In the case of the widow surviving, it has been held that she is entitled,to a life interest in her husband’s property. In Kalu v. Lamidecidedin 1905, it was sought to limit her right to property acquired duringcoverture. This contention was repelled and has not been raised since.In Tikiri Banda v. Appuhamy*, 'where the diga-married wife died leavingher husband and children, the husband claimed a life interest. A Benchof Three Judges held that he was entitled to what he claimed, thisconclusion being arrived at on different grounds. In that case, theproperty had been acquired during coverture : Pereira J. mentions thefact. He referred to Naide Appu v. Palingurala (supra) and confinedthat ^ruling to the case of a wife dying without issue, quoting withoutdisapproval Modder’s Art. 204 to the effect that a diga-married widowersucceeds to all the acquired property of his wife dying intestate andwithout issue, in preference to her brothers and sisters. He followeda recent decision of Saduwa v. Siri”, giving the husband a life-interestwhere there was issue. He drew no distinction between property acquiredbefore and after coverture. Shaw J. thought that some operation shouldbe given to the paragraph in Sawers,- cited before them, and that therecent decision was equitable. De Sampayo A.J. did not think thereasoning in Naide Appu v. Palingurala (supra) was restricted to the case ofa wife dying without issue nor that it was any authdrity for the propositionthat the husband was not entitled even to a life-interest. He thought itpossible that Sawers (at p. 8) meant to give the husband a life-interestwhere there were children of the marriage, for he had stated that on thedeath of the husband the property would go to his son by his deceasedwife. Naide Appu v. Palingurala (supra) still retained its authority in thecase of a wife dying without issue.
> In 1922 came the case of Seneviratne v. Halangodain which Garvin A.J.wrote the judgment. The case had come up before this Courtpre'iously- (vide 22 N. L. R. 472). It appeared that the wife, notwith-standing her diga marriage, had maintained such a connection with hermulgedera as to have preserved or regained her binna rights. The Courtheld that, nevertheless, the husband did not cease to be a diga-marriedhusband. De Sampayo A.J. said that if he were so it must be concededthat he would inherit from his wife, but,in view of the ruling in TikiriBanda v. Appuhamy (supra) it was thought desirable to send the caseback for further proceedings. When the case came before this Courtthe second time, the question for determination was stated by Garvin A.J.to be whether the husband was the heir-at-law to his wife’s landedproperty acquired before marriage when she died without issue, havingbeen married in diga. That is the question now before us, and wewould naturally wish to follow the decision in Seneviratne v. Halangoda(supra) if possible. But in that case the property had been given byway of dowry about six weeks before marriage and the fact that it was
1 11 N. L. R. 222.'3 Bal. 18.
* 18 N. L. R. 105.1 24 N. L. R. 257.
DE KRETSER J.—Dunuweera v. Muttuvoa.
519
dowry was the deciding factor evidently. On the first appeal, the casewas sent back apparently to ascertain to what extent, if any, the husband’sright was limited. If the Court thought he would have no right sincethe property had been acquired before marriage then it was unneces-sary to send the case back. It emerges, therefore, that the distinctionbetween property acquired before and after marriage was either not urgedat all before the Court or, if it was, it was not recognised.
The reasoning of Garvin A.J. is not easy to follow in parts. Inparticular, he often appears to treat the wife’s paraveni lands and heracquired lands on the same footing. He does not seem to have recognisedany arrangement of subjects by Sawers. He quotes Sawers two para-graphs further on (section 33) and draws the conclusion that the wife’sheir to her landed property is her son. But Sawers had just previouslystated that the husband was the heir to her landed property, clearlymeaning—as I have shown earlier—her acquired property. It is hardlylikely that he would contradict himself so soon after. He was dealingwith specific cases on which he had taken evidence, just as Armour waslater. Having dealt with the rights of husband and wife to inherit fromeach other, he next turns to the question of inheritance by parents fromchildren.
Sawers then goes on to deal with the case of a mother inheriting fromher children (section 32). He first takes the case of the husband’sparaveni property and says that the mother inherits such property fromher children, stating what would happen if she dies intestate. Presumably,the mother inherits such property from her children if they died withoutissue. He had previously stated that inherited or paraveni propertywould go to a deceased person’s children, and one cannot suppose thatin the case of married sons and daughters who had children those childrenwould be excluded by the brothers and sisters of a deceased son ordaughter.
Having then dealt with the case of a surviving mother, he goes on todeal with the case of a surviving jather, starting^with the premise that theson had already inherited his mother’s property and died without issue.Such property would be the mother’s paraveni property, her “ peculiarproperty ”—to use Sawers’ own words as regards movable property.In such a case, Says Sawers, the father would have only a life-interest.
There is, therefore, no conflict between sections 31 and 33, and when insection 33 Sawers gives only a life-interest, using that very expression,he must be understood to mean, in section 31, that the husband hadabsolute title to his wife’s landed property. The expression “ heir to ”clearly had a definite meaning for him, as is evident from section 32,where the mother is given absolute title to her children’s propertyinherited from their father.
I do not think the next conclusion reached by Garvin A.J. from apassage in Sawers dealing with the rcase of a person dying childlessleaving parents and brothers is sound. In that case no surviving wife orhusband is mentioned. The rule merely lays down what would happenshould a person leave neither a spouse nor children but only parents andbrothers. Gai-vin A.J. then turns to Armour, p. 26 (which would bein the copy I am using,) and quotes two instances given by Armour,
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DE KRETSER J.—Dunuweera v. Muttuwa.
neither of which has any application to the case now before us. Armourtakes for his premise that the married woman left no near relatives andin such a case gives the husband a right of reversion to her estate, addingthat that would include even her paraveni or ancestral lands. Garvin A.J.thought there was no question that Armour was dealing with thelanded estates of the married woman but in my humble opinion theredoes exist a very real question and it seems to me clear that Armour wasdealing only with movable property.
According to Modder, in his introduction to his work on Kandyan Law,Armour’s contributions were published in 1842 in a paper called theCeylon Miscellany. It was, therefore, put into print, and it will be notedthat there is a line drawn across the top of the page (26), indicatingpresumbly that Armour was now passing on to a different subject.He begins the new chapter (if I may so call it) with the quotation fromSawers, relating to movable property. That movable property, if it is her“ peculiar property ", goes first to her children, and it is only when thereare no other near relatives of hers that it goes to her husband. It appearsto have stru’ck Armour at this point that the same rule applied to herparaveni lands.
* Earlier—at page 18—Armour had dealt with the case of the man dyingintestate and had said that his widow and children were his immediateheirs, adding within brackets “ to the movable property ”. He then dealtin a separate section with the man’s landed property, Passing now (atpage 26) to the case of the woman dying intestate, he again starts with themovable property.
Turning.next io a consideration of the case law, Garvin A. J. seemsto have experienced needless difficulty regarding the case of Dingirihamy v.Menika'. Whether the marriage* was in binna or diga the husbandwould not have any rights in the paraveni lands of his deceased wife.I do not propose to examine his remarks with regard to other cases.
The conclusion reached by Garvin A.J. was that the landed propertyin the case he was dealing with was in the nature of dowry, that it wasnot property acquired during coverture and did not fall within the classof property which, according to Armour, a husband takes. He hastaken Armour’s statement at page 26 that the surviving mother wasentitled to such property as her daughter has obtained as ' dowry. InSeneviratne v. Halangoda (supra), it was the mother who contested thehusband’s claim. Interpreting as he did the passage in Armour to referto landed property he had authority for the conclusion he arrived at.
But the facts of the present case are different. There is no survivingmother and the property is not in the nature of dowry. Withoutdisturbing, therefore, the authority of Seneviratne v. Halangoda one isfree to arrive at an independent conclusion in this case. I see no reasonfor drawing any distinction between property acquired before andproperty acquired after coverture. No such distinction is allowed withregard to a wife and I cannot see why it should be allowed with regard toa husband.
* 2 C. L. R. 7C.
521
DE KRETSER J.—The King v. Marthino.
As regards landed property, the only distinction known to KandyanLaw was between paraveni and acquired property. Decisions of thisCourt have grouped under the head of acquired property even ancestralproperty which came by way of gift. As regards movable property theKandyan Law recognised a distinction between property acquired beforeand after coverture but even then the husband inherited where there wasno issue. I see no reason why a different principle should apply to landedproperty and find no difficulty in holding that where there is no issue thesurviving husband is entitled to his wife’s acquired property.
The judgment of the lower Court is set aside, and the case will go backfor the District Judge to proceed on the conclusion just stated. The appel-lant is entitled to his costs in both Courts.
Moseley S.P.J.—I agree.
Appeal allowed.