040-NLR-NLR-V-76-H.-M.-TIKIRI-BANDA-Appellant-and-R.-M.-DINGIRI-BANDA-and-2-others-Responde.pdf
H. N. G. FERNANDO, C.J.—Tikiri Banda v. Dingiri Banda
203
Present: H. N. G. Fernando, C.J., and Thamotheram, J.
H. M. TIKIRI BANDA, Appellant, and R. M. DINGIRI BANDAand 2 others, Respondents
S. C. 176/68 (Inty.)—D. C. Kurunegala, 2953/P
Kandyan Law Declaration and Amendment Ordinance (Cap. 59) —Sections 11 (1) (a), 13—Right of a widow to life interest in theacquired property of her deceased husband—Effect thereon whenthere are children by her and by a previous marriage of thedeceased.
When a person who is subject to the Kandyan Law Declarationand Amendment Ordinance dies leaving his widow and children byher and also children by a previous marriage, the per capita sharesof the children of the previous marriage are not subject to thawidow’s life interest in a one-half share of the acquired property ofthe deceased except if, and to such extent as, the per capita sharesof the widow’s own issue are less than one-half.
Appeal from an order of the District Court, Kurunegala.
H. W. Jayewardene, Q.C., with L. C. Seneviratne and G. M. S.Samaraweera, for the plaintiff-appellant.
W.D. Gunasekera, for the defendants-respondents.
Cur. adv. vult.
November 8, 1970. H. N. G. Fernando, C.J.—
The facts in this action for partition are not in dispute. Theyare that one Appuhamy acquired the property which is thesubject of the action, leaving his widow the 3rd defendant and achild by her who is the 2nd defendant, an adopted son who is the1st defendant, and also a child by a previous marriage who isthe plaintiff. It is also common ground between the parties thatAppuhamy died after the date of the commencement of theKandyan Law Declaration and Amendment Ordinance of 1939.Accordingly, ss. 11 and 13 of that Ordinance govern the devolu-tion of the property : the widow (3rd defendant) is entitled,under the first proviso to s. 11 (1) (a) of the Ordinance, to anestate for life in one half of this property, and the plaintiff, the1st defendant and the 2nd defendant are each entitled to a 1/3share of the property. The only question in dispute is whetherthe 1/3 share of the plaintiff, who is the child of Appuhamy’sfirst 'marriage, is or is not free of thie life interest in a half-shareto which the widow (the 3rd defendant) is admittedly entitled.
The learned trial Judge felt himself able to dispose of thisdifficult question of law without pronouncing an answer to it.He relied on the fact that, in the testamentary proceedings whichfollowed Appuhamy’s death, there was recorded a settlementby which it was agreed that the 3rd defendant is entitled to an
204H. Is. G. FERNANDO, C.J.—Tikiri Banda v. Dingiri Banda
interest for life in a “ half-share, of the acquired properties of theentire estate ”, On this basis, the decree for partition providesthat one-half of each of the 1/3 shares, to which the plaintiff the1st defendant and the 2nd defendant are respectively entitled,is subject to the life interest of the 3rd defendant.
The testamentary proceedings (marked D1 in the present case)show that the only matter in dispute in the Testamentary casewas whether the present 1st defendant was duly adopted by thedeceased Appuhamy. After evidence clearly establishing theadoption had been led, the settlement mentioned above wasreached. Its effect was to settle the legality of the adoption andto recognize the adopted child’s right to share equally withAppuhamy’s natural-born children. I cannot agree with thelearned trial Judge that the settlement decided the altogetherdifferent question, whether and to what extent the shares ofeach of the 3 children are subject to the widow’s life interest.True, she has a life interest in one-half of the entire estate ;but the other half is free of that interest, and the plaintiff’spresent claim is that he can take his one-third share out of thisfree half of the property.
The contention of Counsel for the plaintiff is that, when s. 11of the 1939 Ordinance declared that a surviving widow has alife interest in one-half of her deceased husband’s acquiredproperty, it gave statutory recognition to the decision in Hapuv. Esenda1 (26 N. L. R. 298). The deceased in that case was sur-vived by the child of his first marriage and by the widow andissue of his second marriage ; and the decision was that the firstchild “ was entitled immediately to a half of the acquiredproperty, subject to an equitable allowance in the event of itproving that the remaining one-half was insufficient for themaintenance of the widow and her own children ”. The decisionobviously implied that the surviving widow had a life interestin the one-half share of the property which would ultimatelypass on her death to her own children by her deceased husband ,*and s. 11 of Ordinance subsequently recognized that right of awidow. But apart from that, s. 11 is silent as to the questionwhether or not the legal title of children of a former marriageis “ encumbered ” in favour of the widow.
Learned Counsel for the widow, and also the trial Judge, haverelied on s. 13 of the Ordinance, which provides that all childrenof a deceased inherit per capita, even when there are children oftwo or more marriages. But s. 13 only has the effect that thelegal title to the property devolves in equal shares on allsurviving children. This Section again is silent as to the questionnow under consideration.
*■ 26 N. L. R. 298.
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H. N. G. FERNANDO, C.J.—Tikiri Banda v. Dingiri Bada
Thus there is nothing in the Ordinance which purports tomodify expressly the principle which the judgment in Hapuv. Esenda derived from the earlier authorities as being applicablein a case where there are children by two marriages : namely,the issue of the second marriage “ are entitled to a moiety subjectto the widow’s right of maintenance out of that moiety”, and“ the widpw must depend on the shares of her children Thereis however, a modification which can arise by implication inconsequence of the rule of per capita devolution stated in s. 13.Where the share or shares of the widow’s own issue is less thanone-half, then the widow’s right under s. 11 to a life interest inone-half has to be “ fed ” out of the shares to which other childrenhave title. But in a case where the shares of the widow’s childrendo exceed one-half, the principle can apply, for she can thendepend on the shares of her own children for her life-interest.Considering that a widow must maintain her children out of theproceeds of her life-interest, those children would have anunduly favourable double benefit if they have title to more than ahalf-share and yet enjoy the benefit of a contribution towardstheir maintenance out of the shares to which the issue of theformer marriage have title.
I hold therefore that the per capita shares of children of anyformer marriage are not subject to the widow’s life interest ina one-half share except if, and to such extent as, the per capitashares of the widow’s own issue are less than one-half.
. As already stated, the 1st defendent is an adopted child of thedeceased, ahd the learned trial Judge has held that a half-shareof his 1/3 share will be subject to the life-interest of the widow.Since no argument was addressed to us as to the correctness ofthis finding, my opinion on this matter has to be expressedwith some hesitation. The evidence in the former Testamentaryproceedings shows that the 1st defendant was bom and adoptedduring the subsistence of the deceased’s marriage to the 3rddefendant. That being so, it seems to me proper to regard the1st defendant for present purposes as a child of this marriage,and not of the deceased’s first marriage. (Had the 1st defendantbeen adopted before the deceased contracted his second marriage,the position could have been different, for he may then havehad to be regarded as a child of a former marriage.)
In the result, the position in this case is that of the threeheirs who each have title-to a 1/3 share of the property, two ofthem (the 1st defendant and the 2nd defendant) have to beregarded as the children of the marriage between the deceasedand the 3rd defendant. Since the share of these two heirs (2/3)exceeds one-half, that share suffices to feed the widow’s lifeinterest, and the plaintiff’s 1/3 share is free of that interest.
206
Jayaneris v. Somatualhie
The order in the decree under appeal that “ half share each ofthe shares allotted to the plaintiff, 1st and 2nd defendants 'Willbe subject to the life interest of the 3rd defendant ” is set aside,and the following is substituted therefor: —
“ Out of the 1/3 share allotted to the 1st defendant and tothe 2nd defendant respectively, a 3/12 share shall in eachcase be subject to the life-interest of the 3rd defendant. ”
In the circumstances, I would make no order as to the costs ofthis appeal.
Thamotheram, J.—I agree.
Order varied.