003-NLR-NLR-V-45-ELLEN-NONA-AND-OTHERS.-Appellants-and-PUNCHI-BANDA-Respondent.pdf
Ellen. Xona and Others and Putichi Banda.
II
Present: Howard C.J. and Keunetnan J.
FJ.LEX NONA AND OTHERS, Appellants and. PITNCJdJ. BANDA, Respondent.
27—D. C. Kandy, 572
Kandyan late-—Acquired property of Kandyan wife—Contest between illegiti-mate child and widower—Rights of child.
The property of a Kandyan wife acquired before her marriage isinherited by her illegitimate child and her dipa-married husband hasneither title nor life-interest in such property.
T
HIS was a partition action in which the dispute was with regard toa one-fourth share of the land between the plaintiff and the 3rd
defendant.
The owner of this one-fourth share was Muttu Menika, who obtainedtitle to it in 1913 and who was unmarried at the time.In 1916 an
illegitimate child, Punch! Appuhamy, was bom to her.The plaintiff
claimed the whole of Muttu Menika’s share by purchase from PunchiAppuhamy. In 1918 Muttu Menika married the 3rd defendant in diga.Muttu Menika died in 1920 leaving no issue by the 3rd defendant.
The learned District Judge, held in favour of the plaintiff.
A. Rajapakse, for the 3rd defendant, appellant.—It is the widowerwho should succeed to the property in question. The District Judge haspurported to follow Seneviratne v. Halangoda et al l. That ease, however,can be, and has been, distinguished in Dunwueera v. Muttuwa et al.2where all the authorities are reviewed. See also Seneviratne v. Halangodaet al.3 and Ausadahami v. Tikiri E tana.1 Even if the illegitimatechild can succeed, the widower is at least entitled to the life-interest.It makes no difference whether the property was acquired by the wifebefore coverture or during coverture. Dunwweera v. Muttuwa et al.<[supra) is applicable and was apparently not cited at the trial.
AT. E. Weerasooria, K. C. (with him H. W. Thambiah), for the plain-tiff, respondent.—Kandyan law draws no distinction between legitimateand illegitimate children as regards right to the maternal inheritance—Hayley’s Sinhalese Laws and Customs, p. 462.
There is, no doubt, authority for the proposition that a husbandsurviving bis diga-married wife is entitled to a life-interest over the landedproperty acquired by her during coverture, where the deceased wife hadleft children. But in the present case (1) there are no children by themarriage, and (2) the property under consideration was acquired beforecoverture. In Seneviratne v. Halangoda et al. (supra) the law applicable to acase similar to the present one is fully discussed. Dunuweera v. Mv.ttw.vaet al (supra) can be distinguished because in that case the deceased left noissue. Moreover, certain passages in the judgment in that case are contra-dictory and are not supported by the authorities which they purport tofollow.
A. Rajapakse, in reply.—The case of Kalu v. Lami5 was not consideredin Seneviratne v. Halangoda et al. (supra). There is no reason for any
1 (1922) 24 N. L. It. 257.3 (1921) 22 N. L. R. 472.
* (1942) 43 U. L. R. 512.* (1901) 5 N. L. R. 177.
5 (1905) 11 If. i. B. 222.
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KEUNEMAN J.—Ellen Nona and Others and Ptinchi Banda.
distinction between property acquired before coverture and properlyacquired during coverture. Such a distinction is criticised as quite artifi-cial in Dunuweera v. Muttuwa et al. (supra). See also Rankiri v. Ukku1and Ranhami v. Menik Etanaa.
Cur. adv. vult.
November 12, 1943. Kjbuneman J.—-
This iB a partition action. The title to one-fourth share of this land is indispute between the plaintiff and the 3rd defendant.
The owner of this one-fourth share was Muttu Menika, who obtainedtitle under P 2 of 1913. Muttu Menika was at the time unmarried.In 1916 (see X 1) an illegitimate child, Punchi Appuhamy, was born to her.The plaintiff claims the whole of Muttu Menika’s share by virtue of transferP 3 of 1938 from Punchi Appuhamy to Hendrick Appuhamy, and transferP 4 of 1940 by the latter to the plaintiff. In 1918 Muttu Menika marriedthe 3rd defendant in diga (see 3 HI), and a child was born of the marriage,Heen Menika, who died on December 2, 1920 (see X 2) before the death ofher mother. Muttu Menika herself died on December 9, 1920.
The plaintiff claims the whole share of Muttu Menika through theillegitimate child, Punchi Appuhamy. The 3rd defendant, as the diga-married widower, claims to be entitled to the same share in preference tothe illegitimate child. In the alternative, the 3rd defendant claims alife-interest in the share of Muttu Menika, and this was the argumentmainly pressed before us.
The first question to be decided is the right of the illegitimate childto succeed the mother. On this point there is clear authority—seeNitinighanduwa, p. 106.
“ There is no distinction or difference amongst children. The childborn to a woman whilst in an unmarried state, the child born to herwhilst in concubinage with a man of a higher caste than herself, andthe child born to her while living with a man of an inferior caste—these several children—will have an equal right to the maternalinheritance. ’ ’
See also Nitinighanduwa, p. 15; Perera’s Armour, p. 83.
I think it is clear that the husband has no title to the share of hisdeceased wife as against the illegitimate child of the deceased wife.
The question that remains is as regards the husband’s claim to a life-interest in the land. In this case it must be noted that the propertyis to be regarded as the acquired property of the wife—but it is propertyacquired before the marriage.
Fortunately, on this particular point there is good authority. InPerera’s Armour, p. 29, section 34, appears a quotation from Sawers.
“ A wife dying (intestate) leaving a husband and children, herpeculiar property of ..all description goes to her children, and not to herhusband.”
In the same volume, p. 30, section 36, where the dipa-married wife diedwithout issuei it is stated,
“ A deega-married woman having died without issue and intestateleaving goods, partly acquired during the coverture, and partly1 {1907) 10 N. E. JR. 129.'1 {1907) 10 N. E. JR. 153.
KEU^EMAN J.—Ellen Nona and Others and Punchi Banda.
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consisting of goods which she has brought with her at her marriage, thegoods first mentioned will remain to her husband, and the rest willgo to her parents.”
This in terms applies only to goods and no.t to landed property butI think it is clear that differentiation between property brought by thewife to the marriage, and property acquired during the coverture was-'of wider application. Hayley (Sinhalese Laws and Customs) at p. 461-quotes from D’Oyly’s Sketch of the Kandyan. Constitution, p. 308, aa-follows: -—
” If the wife dies leaving a husband and children, all propertyacquired from her husband reverts to him—by herself (from parentsor otherwise) goes to the children, everything acquied during coverturegoes to her husband.”
D’Oyly clearly deals with all classes of property, and I do not thinkthere can be any doubt that he was referring to a di^a-married wife.There should, however, I think, be one qualification for this passage^,namely, that the husband obtained not the dominium but only a life-interest, at' any rate where the deceased wife left children, in the two-classes of property specified, namely, (a) property acquired from thehusband himself, and (b) property acquired during the coverture. In:my opinion, this point is brought out in Nitinighanduwa at p. 114—the-passage itself deals with the case where the wife left no issue:
” If the proprietress has no children or grandchildren, and dies-leaving a parent, or her husband, all the property obtained throughher parents, and all property acquired by her in any manner whatsoever-before her marriage -with the herein mentioned husband, will be inherit-ed by the parent. The property acquired jointly with her husband!after the marriage’ will come into possession of her husband.”
In cases decided by our Courts, the law relating to property acquired’during coverture is emphasized—see Austin 66; Naide Appu v. Palin-gurala1. In Saduwa v. Siri2 it was expressely held that “ a husband1surviving his diya-married wife is entitled to a life-interest overthe landed property acquired by her during coverture, where the-deceased has left children”. This was subsequently upheld in the-three-Judge case of Tikiri Banda v. Appuhamy3, which also clearlyand in express terms related to property acquired by a dtg'a-married wife-during the coverture.
In this particular case I do not think it is necessary to comment on the-passage in Sawers’ Digest, p. 11, namely: —
” The husband is the heir to his wife’s landed property, whichwill at his demise go to his heirs”.
This was the opinion of Doloswela Dissave and was opposed to the-opinion of the chiefs of the Udaratta. This will have to be read in-conjunction with the quotation from Sawers cite(L earlier and with aslater passage in Sawers:
1 2 S.C. C. 176.
3 18 N. L. R. 105.
* 3 Bed. Re.p 18.-
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KBUNEMAJN’ J.—Ellen Nona and Others and Punchi Banda.
A wife dying intestate, leaving a son who inherits her property,and that son dying without issue, the father has only a life-interestin the property which the son derived or inherited from or throughhis mother.”
I need only say that this passage has been very fully dealt with in TikiriBanda v. Appuhamy (supra) in Seneviratne v. Halangoda 1 and inDunuweera v. Muttuwa2, and I do not think there is anything which Ican usefully add. In .the particular instance involved in this case, Ithink it will be sufficient for us to follow the decisions of our Courts, whichhave granted to the diga-married widower only a life-interest in propertyacquired by the wife during coverture where the wife left children.
It is too late now for a diga husband to claim more than a life-interestin such a case.
In arriving at a decision in this case, I am not unmindful of the factthat there are divergent opinions expressed in our Courts as to the positionof a dipa-married widower, in the case where the deceased wife left nochildren. In Seneviratne v. Halangoda (supra) it was held that wherea Kandyan wife married in diga died issueless, the husband did notinherit any portion of the wife’s landed property acquired before marriage.In that case the property in question was landed property given as dowryto the wife. The contest in the case was between the assignee from thehusband and the devisee of the mother. In the later case of Dunuweerav. Muttuwa (supra), the authority of Seneviratne v. Halangoda was doubtedand it was held that where a Kandyan woman married in diga dies with-out issue, the surviving husband succeeds to her acquired property in■preference to her brothers and sisters, and no distinction was drawnbetween property acquired before marriage and property acquired aftermarriage. In each of these cases the earlier writers and cases wereexhaustively examined and a study of these cases brings home to thereader how dangerous are the “quicksands” (to use the phrase of PereiraJ.) which beset the student who adventures on the study of Kandyan law.
However, in my opinion, it is possible in this case to steer clear of- thequicksands. In the difficult condition of the law, I think there are twobeacons to guide us. One is the passage from D’Oyly I have alreadymentioned, which refers in clear terms to the case where the Kandyanwife died leaving both husband and children. I have already made mycomment on this.The distinction between property acquired during
marriage and property otherwise acquired is clearly brought out. Fur-ther, it follows from the decisions of our Courts that the right of the survi-ving husband is only a life-interest in property acquired during themarriage. I think those decisions I have referred to provide anotherbeacon. I may add that the passage I cited from D’Oyly does notappear to have been considered in any of the cases previously decided inour Courts.
I am of opinion in this case that the property of the Kandyan wifeacquired by her before her marriage, was inherited by her illegitimatechild, and that the husband had neither title nor life-interest in that
property.
i 24 N. L. R. 257.
9 43 N. I,. R. 512.
HEAHNE J.—de Saram and Sri Skanda Rajah.
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may add that this decision is based upon the fact that the deceasedwife left both a hysband and a child. I have no desire to trespass uponthe further question as to what the law is when a Kandyan wife diesintestate without issue, leaving a husband and either a parent or brothersand sisters. That matter will no doubt come up for final decision on somelater occasion.
The appeal is dismissed with costs.
Howard C.J.—I agree.Appeal dismissed.
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