063-NLR-NLR-V-70-H.-LYDIYA-Appellant-and-I.-P.-KIRIUKKUWA-and-five-others-Respondents.pdf
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Lydiya v. Kiriukkuwa
1967 Present:Samerawickrame, J., and Tennekoon, J.H. LYDIYA, Appellant, and I. P. KIRIUKKCVYA and five others.
Respondents
S.C. 398J65—D.G. Kegalle, 1906 T
Kandyan law—Illegitimate non—Death intestate and issueless—Devolution of hisacquired property—Respective shares of his wife and the legitimate children ofhis deceased mother—Kandyan Law Declaration and, Amendment Ordinance,s. 11.
Under the Kandyan Law, where, after his mother has predeceased him, anillegitimate son dies intestate and issueless, leaving him surviving his wife amino relations other than the legitimate children of his mother, tho dominiumin respect of his acquired property devolves on his mother’s legitimate children.and his wife is entitled only to a life interest in such property.
TKNNEKOON, J.—Lydiya v. Kiriukkuwa
273
-A.PPEAL from a judgment of the District Court, Kegalle.
U.W. Jayewardene, Q.C.. with B. J. Fernando and L. C. Seneviratne,for Appellant.
C. R. Gunaratne. for Respondents.
Cur. adv. vuU.
October 1, 1967. Tennekoon, J.—
The contest in this case is in regard to the acquired property of oneSedara who died in 1955, and whose estate is being administered in D.C.Kegalla Testamentary Case No. 1906/T.
Sedara was the illegitimate son of one Siri born of an association withone Appuwa. After Appuwa’s death, Siri was either married to, or wasthe mistress of, one Dingiriya. The respondents are the children of thatunion. Siri died in 1942.
Sedara having died issueless his acquired property is now claimed onthe one hand by the appellant who is the widow of Sedara, and on theother by the respondents who concede to the appellant only a right tolife interest in such property.
The learned District Judge having held, in the first plaoe, that therespondents were the legitimate children of Siri and Dingiriya went onto hold that where an illegitimate person (being a man) dies leaving himsurviving a spouse and no relations other than the legitimate children ofhis mother, the Kandyan Law Declaration and Amendment Ordinancecontains no provision for the resolution of the question of devolution oftitle to his acquired property, and that the question must accordingly beresolved under the general Kandyan Law ; applying that law he came tothe conclusion that the wife was entitled only to a life interest and thatthe respondents being, as he held, legitimate children of Siri succeededto the dominium.
Mr. H. W. Jayewardene, Queen’s Counsel appearing for the appellant,while accepting the learned District Judge’s opinion that the answer tothe question of succession that arose in this case had to be resolved byreference to the general Kandyan Law, submitted that the law on thequestion is to be found formulated in a decision of this court made in 1904in the case of Tittewelle Sangi v. Titlewelle Mohotta 1 which followed anearlier case of Punchirale et al. v. Punchi Menika 2. These two casescertainly are authority for the proposition that under the general KandyanLaw where a man died leaving him surviving a spouse, she would have anabsolute lathimi right to the acquired property of her deceased husbandto the exclusion of any "relations” more distantly connected to thedeceased than parents, full brothers and sisters and their children.
1 (1903) 6 N. L. R. 201.
2
(1879) 2 S. O. O. 44.
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TEXNEKOON, J.—Lydii/a v. Kiriukkmra
Mr. Jayewardene’s submission was that the respondents were, whetherthey were the legitimate or illegitimate children of Siri, excluded by thisrule.
Mr. Guneratne for the respondents while submitting that the 6 !N. L. R.case was not in accord with the general Kandyan Law-—and in this hois supported very strongly by Hayley—Lav s and Customs of the Sinhalese(1923) at pages 365-366—contended that the learned District Judge waswrong in holding that the Kandyan Law Declaration and AmendmentOrdinance did not apply. He referred us to the provisions of section 11thereof which, he submitted, dealt fully with the case of a man dyingintestate after 1938 leaving a spouse surviving. This section provides(inter alia) that the surviving spouse shall be entitled (i.e. absolutely)to the acquired property of the deceased intestate only if the deceasedleft him surviving ?io other heirs. I agree with IVJr. Guneratne's submissionthat the effect of section 11 is to declare (while amending in certainrespects) the law relating to the rights of a widow to the immovableproperty of her deceased husband ; in particular having regard to thewording of section 11 (1) (d)—
“ in the event of the deceased leaving him surviving no other heir,the surviving spouse shall succeed to all his property both paraveni andacquired ”—
it is now no longer possible to found a right in the widow to full dominiumupon the general Kandyan Law which gave her that right not in the some-what extreme event of there being no other heirs of the deceased but inthe more generous circumstance of there being no relations of a givenproximity to the deceased. The words “ no other heir ” must, in thecontext in which they appear, be taken to signify that the test to beapplied is : if the widow is left out of the reckoning, would there be anyheir, however remote, to succeed to the property ? If there is such anheir the wife would have a life estate only, and she would succeed to thefull dominium only in the absence of any such heir.
The question that then remains is : are the respondents heirs of thedeceased Sedera ? Sedera himself is an illegitimate son of his mother.While it is accepted Kandyan Law that a father cannot succeed to theacquired property of his illegitimate child there is nothing to suggest thata mother cannot succeed to the acquired property of her illegitimate son.The difficulty however is that Siri predeceased Sedera ; can any heirshipbe established between Siri’s illegitimate son and Siri’s lawful heirs byrepresentation ?
I am relieved of duty of searching for an answer to this question in thetexts of writers on Kandyan Law because this Court has at least in twocases answered this question in the affirmative.
In the case of Banda v. Banda1 the facts were : The defendanttransferred certain property to his illegitimate son Kirimudiyanse who
1 (1916) 19 N. L. R. 126.
TENNEKOON, J.—Lydiya v. Kiriukkuua
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died unmarried and issueless. Kirimudiyanse’s mother had predeceasedhim ; administration having been taken to his estate, the property wassold to the plaintiff by three daughters of his mother by a different father.In deciding that the plaintiffs had good title and the defendant none,de Sampayo, J. said :Kirimudiyanse’s mother if alive would of
course have been his heir and in her default I think his half sisters were hisheirs”.
A similar, problem arose in the case of Kuma v. Banda1. One KiriBanda died intestate in 1919. His parents were the defendant and oneKiri Menike who married each other in 1886 according to customaryrites but had not registered their marriage under the then prevailingKandyan Marriage Ordinance 3 of 1870. Kiri Menike predeceased KiriBanda and her nearest relative was one Ranhamy, a half-brother on themother’s side. The plaintiff was a daughter of Ranhamy who was dead.She claimed the property of Kiri Banda as his sole heiress, while the defen-dant alleged that he was the heir of his illegitimate son Kiri Banda. AFull Bench, while holding that the defendant could not as father succeed tothe acquired property of his illegitimate son, had no difficulty in upholdingplaintiff’s claim as heir of the deceased Kiri Banda through his deceaseilmother whose illegitimate son he teas. Applying the principle adopted inthese two cases I hold that the children of Siri by her husband Dingiriyaare (having regard to what is said hereafter on the question of theirlegitimacy), heirs of Sedera, and accordingly they succeed to his acquiredproperty subject to a life interest in the petitioner.
In regard to the question of the legitimacy of the respondents it wasurged for the first time in appeal that, although ordinarily the productionof the certificates of birth of the respondents (in which Siri and Dingiriyaare referred to as parents and as married) may have been relevant evidenceto establish a marriage between Siri and Dingiriya by reason of theprovisions of section 35 of the Evidence Ordinance, in the present casesuch evidence must be excluded ; it was submitted that this was theeffect of the provisions of sections 8 and 36 of the Kandyan MarriageOrdinance 3 of 1870 which are substantially to the following effect :—
Section 8 : No marriage contracted after 1870 is valid unless registeredin manner and form as provided in the Ordinance ; and
Section 36 : An entry in a book kept under this Ordinance shall be thebest evidence of the marriage so contracted.
It has been held that the expression £t best evidence " in section 36 is.used in the sense it is used in English Law and it thus excludes all evidenceof an inferior character. Seo Mampiliya v. Wegodapela 2 and Seneviratnev. Halangoda 3.
An examination of the proceedings in the lower court indicates that thequestion whether the marriage between Siri and Dingiriya was only acustomary marriage or was one contracted under the General Marriage
* (1922) 24 N. L. R. 129.
1 (1920) 21 N. L. R. 294.» (1921) 22 N. L. R. 472.
276
Samarcisinghe v. Samarasinghe
Ordinance then in force or one contracted under the Kandyan MarriageOrdinance 3 of 1870 was never in issue. There were no formal issuesraised at the inquiry below ; there is nothing in the recorded submissionsof counsel or in the judgment of the learned District Judge to indicatethat the parties were at issue as to whether the marriage could be held tobe valid unless it was contracted under the Kandyan Marriage Ordinance3 of 1870 and a certified entry of such marriage produced. Mr. Jayewar-dene himself concedes that, while there was the Kandyan MarriageOrdinance in operation at the time, there was nothing in the law toprevent Siri and Dingiriya from having contracted a valid marriageunder the General Marriage Ordinance then in operation. Under that lawthere was no best evidence rule. In all the circumstances I think it wouldbe unjust to the respondents to permit such a point to bo raised for thefirst time in appeal. I would accordingly affirm the finding of the learnedDistrict Judge that the respondents are the legitimate children of Siriand Dingiriya.
rrhe appeal accordingljT fails and is dismissed with costs.Samerawickkame, J.—I agree.
Appeal dismissed.