HAPU v. ESANDA

049-NLR-NLR-V-26-HAPU-v.-ESANDA.pdf


ttti
( .298 )
Present : Bertram C.J. and Garvin J.
HAPU v. ESANDA.136—D. C. Kurunegala, 1,72$.
Kandyan lato—Widow’8 right to acquired property—Paraveni propertyinconsiderable—Children by two beds*—Rights of issue by • the. first bed-^-Widow’s equitable claim.
Where, a Kandyan who was possessed of paraveni property,
■ which was. negligible, and of considerable acquired, property,.died leaving as his heirs a widow and children and also ' issue by aprevious marriage,—
Held, that the issue of the first bed. became entitled, to a halfshare of the entire property,, both paraveni , and acquired, subjectto equitable rights on the part of the widow and’her children.
A
PPEAL from an order made by -the District Judge of Kuru-negala on a petition.for the judicial settlement of the estate'
of a Kandyan. The deceased Ungu Duraya died, leaving a widow,the administratrix. He was married twice, and had issue, the .firstrespondent, who: is a minor; by the first marriage; and six childrenby the second marriage. The paraveni property which he left was.inconsiderable, and the acquired property substantial.- The widowclaimed that the life interest in this acquired property, was absolutelyhers. It was. assumed that she proposed to maintain, her sixchildren out of this property. It was further -contended that thefitst • respondent • must depend only on the paraveni property. TheDistrict Judge upheld the .widow’s claim.
. Drieberg, K.G. (with him*' Weerasooriya)t for appellant.^Samarawickreme, for administratrix, respondent.
November 17, 1924. Bertram G; J.—
This is a question arising under the Kandyan law of inheritanceon a petition for the judicial settlement of an estate. The deceasedUnga Duraya died, leaving a widow, the administratrix. .He was.married twice, and had issue, the first respondent, who is a minor,by' the first. marriage, and six children by the second jnarriag;e.The paraveni property which he left was inconsiderable, and, indeed,
almost negligible. The acquired property was substantial, andthe reason for this was that the deceased’s father had made him
a gift during the father's lifetime of a substantial portion of hisancestral lands. It must be taken, as settled that a gift of ancestralland by a father to- his son converts the lands into acquired-
( 299 )
property. See Hayleyfs Sinhalese Laws and Customs, p, 222, IftM.I agree with Mr. Hayley that this seems contrary to principle.'
But in view of the authorities which he cites this must be taken C.J.'to be the law until the matter is further considered by a Full Court.
In the present instance the result works .out in this way:There $***&*
are three paraveni lands, and in each of these the deceased had ashare of one-third, as he bed two brothers. Only one of these,however, effectively belongs to the estate, one of the others beingclaimed by one of the deceased's brothers on the ground that heplanted it at the request of his father, and the other being claimedby the other brother on a deed of gift from liis father. The incomeof one-third of the remaining paraveni property works out only atBs. 8 a year. I am not clear whether by this is meant the incomeof tiie whole property, or the income of the one-third share whichbelonged to the deceased, but, according to one of the brothers,
“ the income of the whole land is Bs. 8 a year." * The income from theacquired property, on the other hand, works out at Bs. 1,431 a year.
The widow claims that the life interest in this acquired propertyis hers absolutely. It appears to be assumed that she proposes tomaintain her six children out o£ this property; but if her claim is.sound, she is entitled to it independently of her children, andtheir step-brother must look solely to the paraveni'property.
The principles, regulating the rights of a widow with regard to .herintestate husband's estate, as they have been settled by modemdecisions and the statements of institutional writers, appear to bethat iii ordinary circumstances she can claim the control and manage-ment of tiie whole estate as administratrix, if _ she has taken* .outletters of administration, or as guardian of her children; if they areminors; If the Children are of full.age, they are entitled to enterinto- their shares, and she is merely entitled to maintenance out ofher husband's ancestral lands. ‘.The heir-at-law can either supporther out of the income of the property, or lie may set aside a portionof the estate for her to Cultivate for her maintenance. See HayleySinhalese Laws and Customs, pp. 365-356,
This principle is. subject to another principle, namely, that ifthere i$ acquired property, the. widow ' has the option of takingthis acquired property for her maintenance, and, in that event; sheis entitled, not .merely to a. reasonable sum for maintenance out ofthis acquired properly, but to an absolute life interest in*it. Theserights are most fully and explicitly set out in Armour's Kandyan-Law, section 24 (Perera’s ed.). It seems to me clear (nofcwifch- •standing the. doubts expressed in -Mr. Hayley’s hook at. page.357).that- this is an option to which the widow is entitled. Armoursays : “ In such case the widow may have possession of the whole6f such acquired land for the remainder of her life/’ And, again,
" in case the widow preferred having possession of the deceased’s,acquired land/'*
( 800 )
im.
Bbetram
O.J.
*&apuv.
Jmndb
But these principles are subject to modification when there, havebeen two marriages, and .there are children surviving by a formermarriage. In such a case it would appear to be settled that theissue by the first marriage are entitled to one-half the propertyimmediately on the death of their father, the issue cf the secondmarriage being entitled to the remaining moiety subject to thewidow's right of maintenance out of that moiety.. See Modder* *sKandyan Law, section 164, on p. 188. The chief authority for thisprinciple is a passage from Sawere' Digest of Kandyan Law (Modder'sed.)t p. 1, which had been previously, prior, to its publication, citedby Marshall on page 339:
That passage is as follows :—. ‘
** The widow of a husband dying childless has the same lifeinterest} and that only, in her husband's landed property,hereditary or acquired, as the widow of a husband, whohad' died leaving issue; but the widow being the second-wife with issue, and there being issue by the first wife, the‘ widow or widows must depend upon the shares of theirchildren, unless <the children’s share of one of the widowsshould be insufficient for her support and that of herchildren; in that case the widow would have a temporaryallowance out of the other shares."
This passage contains two singular expressions which causeperplexity, " the widow op widows " and “one-of, the widows."In ordinary circumstances a' man can leave only' pne widow. Casesof polygamy under the Kandyan .system were rare.. The phrase,I presume, must be understood as having reference to such rarecases, and possibly to cases in which a wife had been divorced, butafter her husband's death was given the status of his widow. Inthe'note to paragraph 18 of Sawers, the case , is discussed in whichit is said: " Nuwerewewe Mudianse died intestate in the.king's time,leaving two sons by his first wife and one son by his second wife,both* wives being alive, but dwelling in different wdlauwes.", Thepassage in Sawers, has, however, never been' understood to beconfined to these particular cases, but has been treated as ol generalapplication.
The question which now confronts us is whether this principleapplies only to paraveni property, or whether it applies under anycircumstances to acquired property as well. On this, subject thereare two decisions of this Court, Joshi Nona et al. v. Batin Nona et al.1;Tikiri Mentha v., Menika2 The latter case has been * followed inMuthumenika v. Heenmenika.3 The reasoning in these two cases—
Note.—Joshi Nana v.Batin Nana will be found summarised in Modder*a Kandyan Law288-289..’*
i (1PM) Leader L.R.47.* {MIT) 20 N. L. B. 12.
* {1917) 4 G. W. R. 268.
( 301 )
Joshi Nona v. Batin Nona and Tikiri Mentha v. Menika (supra)—cannot, in my opinion, be wholly reconciled, but they are distinguish-able on the facts. In the first of them, Joshi Nona v. Batin Nona(supra), the Court, which was composed of Wendt J. and WoodBenton J., held that a widow was entitled to a' life interest in thewhole of her husband’s acquired property, in spite of the fact thatthere were children surviving by a former marriage, and that theproperty was acquired during the continuance of that marriage. DeSampayo J. in Tikiri Menika v. Menika (supra) seeking to distinguishthat case said that the point with which the Court was immediatelyconcerned was an argument that the widow’s life interest should attachonly to the property acquired during the subsistence of her marriage,
• and the question whether her rights were cut dotra by the existence'of children by a previous marriage was not considered or decided.This does not seem to be the case. Wood Benton J. expressly saysthat counsel for the appellant “ was unable to furnish us with anyauthority for refusing to apply the principles of these decisions tothe present case on the mere ground that there are issues of thefirst marriage.” It is true, however, that the judgment does notdiscuss the question whether the principle laid down in the passagefrom Sowers above cited extends to. acquired property. It wasassumed by both Judges.that it did not so extend, and.that itonly applied to paraveni property; The circumstance that in theintroductory sentence hereditary and acquired lands are both-mentioned indiscriminately (a point on which De Sampayo J: laidstress) was not noted. Nevertheless, this must be'regarded as avery weighty authority. In that case,-however, it riiay be assumedthat there was substantial paraveni property in addition to acquiredproperty.
In Tikiri Menika v. Menika (supra), however, there was no .paraveni property' at all, and the two members of the Court dealtwith the situation in two different ways.
t De Sampayo J. put the case in this way: He held that the rightof the widow to an absolute life interest in the acquired lands onlyarose where there was paraveni property as well, f take it thatwhat De Sampayo J. meant is that the widow is entitled to theacquired property only by way of option. She may take theacquired lands if she prefers them to maintenance ■ out of theparaveni property. If the circumstances are such that no optioncan arise, then she has no definite life interest in the acquired lands.
I confess that I think this is the inevitable interpretation of thepassage from Armor, in which the .widow’s right to the acquiredproperty is expounded. Acting on this principle, De Sampayo J.said: “ I think, therefore, that whereas in this case the entire estateof . the deceased consists of acquired property only,, and-there arechildren by a former marriage, the widow’s life interest extends onlyto a part, and, presumably, to one-half, of such acquired property.”
1M
BmrnuirO. J.
Hapu v*Beanda
ini .
Bertram
C.J.
Hapu v.JSaanda
( m )'F.nnia J. drew attention to what he described as the ** inchoatecharacter of. the Kandyan law of intestate succession,” and eonTsidered that where there was no pdraveni property, out of which thechildren of the first marriage could be maintained, Kandyan lawwould probably recognize that some suitable provision ought, ongeneral equitable grounds, to be made by the widow out of theacquired property.. The District Judge had * in effect made anallowance to the children of the first marriage of one-half theincome of .the acquired lands, and Ennis J. observed: " the allow-ance made by the learned Judge does not seem to be inequitable.”
We might then take one of two courses:—
We might rule that the option of the widow to possess.• the acquired lands only , arises when the facts substantiallyadmit of such an option. Where the.. income. from riteparavent lands is Bs. 8, and the income from the acquiredlands-, nearly Bs. 1,500, it might be considered absurd, toallow such, an option. We might, therefore, say that "insuch a case the general-rule laid down by Sawers appliesto acquired property* just as it applies to paraventproperty, and that the first respondent is consequently-entitled immediately to one-half of the whole .property,bbth pdraveni and acquired, * subject to an equitable. allowance in ■ the event of it proving that the remainingone-half was insufficient. for the maintenance of thewidow and her own children. •'
b) We might, on the other hand, adopt the solution suggested,by Ennis J., and hold that the principles of Kandyan laware not to be considered as rigid and technical, but aselastic and subject to equitable adjustment on human-considerations. We might, therefore, hold that the right;of the widow to a life interest in the acquired propertymust be subject to a * suitable – contribution to the mainte-nance of the children of the first marriage/ where theallowance for their maintenance out of the paraventproperty is obviously- insufficient.
There are undoubtedly several passages -in the authorities onKandyan law which support the principle on which Ennis J. baseshis judgment. It is undoubtedly the .case that in detenriiningrights of succession Kandyan law looks not only at the relationshipof the heirs, but also at the circumstances in which they are .placed.De Sampayo J/s way of putting the matter has, however, theadvantage of a certain definiteness. The present case .cannotreally be distinguished from a case in which there is no paraventproperty at all. I would, therefore, rule that the first respondentis entitled to a one-half share, of the whole property, both paraventand acquired, and both movable and immovable, subject to any
( 303 )
equitable claim that may be made by the widow on behalf of herselfand her children. I would, therefore, -remit the case to the learnedDistrict Judge, so. that, after such further inquiry as he may thinknecessary, he may make an appropriate order based on this pointof view.. The learned Judge in making this order is, I think, entitledto take into account the present circumstances Of the widow andthe expenses to which she is put in the maintenance of her family-He should also bear in mind the fact that even the one-half sharewhich is presumptively to be assigned to the widow will not bewholly hers, but that, on her children coming of age, they will beentitled to demand their own share out of this one-half:
The first respondent is himself a minor, but his stepmotheris not his natural guardian. (See Hayley’s Sinhalese Laws andCustoms, p. 211.) There is no actual necessity for a guardian tobe appointed, and I see no reason why he should not enter at once-into his inheritance.
I would therefore' allow the appeal with costs, and remit thecase to $he learned District Judge for the purpose above explained.
Garvix J.—I agree.
Appeal allowed.
1934.
Bertram .
C.J.
Hapu v.Mjonda