093-NLR-NLR-V-28-KALU-BANDA-v.-MUDIANSE.pdf
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Present; Garyin and Lyall Grant JJ.
1926.
KALU BANDA t;. MUDIAK8E.124—D. C. Kandy, 32,602.
Kandyan law—Oift of inherited property—Partition decree—Acquiredproperty—/ nheritance.
Where a Kandyan* who was vested with title to property byinheritance, donated it and was subsequently declared entitled tosuch property in terms of a partition decree,—
Held (on. a question of inheritance arising among the heirs) thatsuch property was acquired property.
T
HIS was an action for declaration of title to a lan.d whichbelonged to one Sirimala by paternal inheritance. By a
deed dated November 3, 1906, he gifted a specific portion of theland to his illegitimate son Sarana, who conveyed his interests bya deed dated October 27, 1919, to one Punchi Ukku, from whom thedefendant acquired them upon a dee.d of October 6, 1924. BeforeSarana parted with his interest a partition action affecting thewhole land was instituted, to which Sirimala was made a defendant.By the final decree entered on July 4, 1913, Sirimala was declaredentitled to the portion of land. Sirimala died in 1919, leaving himsurviving his illegitimate son Sarana, a brother, and two nieces. -Bydeed dated January 22, 1925, Sirimala’s brother and the two niecessold the premises to the plaintiffs. The District Judge held that byvirtue of the decree passed in the partition action Sirimala wasvested with title in the land, and that on his death it. devolved onhis brother- and nieces, to the exclusion of his illegitimate son.
H. F. Pyrera, for defendant, appellant.
Hay ley, for plaintiff, respondent.
December 9, 1926. Garvin J.—
The facts material to this appeal are these. One Sirimala was bypaternal inheritance entitled to an undivided one-third share of aland called Herassagalehena; By a deed dated November 3, 1Q06,he gifted to his illegitimate son Sarana a specific portion of this landand various interests in several other lands. Sarana conveyed hisinterests in the specific portion of this land by a deed of October 27.1919, to one Punchi Ukku, from whom the defendant acquired itupon a deed of October 6, 1924. Before Sarana parted with hisinterest in this land a partition action affecting the whole land was28/33
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1926* instituted and Sirimala was made defendant to the action. HoQaxwsi J. hied an answer consenting to the partition, and claimed that aKaluHsanda sPec*fi° portion, the very portion which was the subject of the gift
to Sarana, had been planted, possessed, and improved by him, andMudtanee s^ouj^ at the partition be allotted to him. A decree for partitionwas entered, and by the final decree entered in the case Sirimala wasdeclared entitled to the portion claimed by him. In the result heacquired to the subject-matter of this action a title under this finaldecree which was entered on July 4, 1918. Sirimala died early in1919, leaving him surviving his illegitimate son Sarana, a brother,and two nieces. By deed P 3 of January 22, 1925, Sirimala's-brother and his two nieces conveyed the premises to the plaintiff,claiming to have acquired title thereto by right of inheritance.The learned District Judge held that by reason of the final decreeentered in the partition case Sirimala was vested with title in thesepremises, and that on his death they passed under the Kandyan lawof inheritance to his brother and nieces to the exclusion of. Willegitimate son. It was, however, contended on behalf of theappellants that the premises were not inherited property of Sirimala.but acquired property, and as such passed to his illegitimate child-It was not disputed that if this is to be deemed the acquired propertyof Sirimala that Sarana, his illegitimate son, would be entitled there-to in the absence of legitimate issue. The foundation of Hie argu-ment is that inasmuch as Sirimala had by a deed of gift divestedhimself of the title to the premises and thereafter acquired a title toit by the decree which was obtained by concealment from the Courtof the fact that at the date of the action he had by his deed of gift*passed on all his interests therein to Sarana the premises musk bedeemed to be acquired property and not inherited property. Apartition decree declares a person entitled to a specific allotmentof land in severalty. In the case of a Kandyan who dies vestedwith such title, the devolution upon his death depends on whetherthe premises come within the category of inherited property or ofacquired property. It becomes necessary, therefore, to go behindthe partition decree and inquire into the history of the title toascertain, if possible, whether the property was inherited or whether*it was acquired property. The title set up by Sirimala was a titleby inheritance. It is contended for the defendants that such aninvestigation must be limited to the proceedings taken in* thepartition case, and that inasmuch as the title set up is a title byinheritance, that is conclusive of the matter. It may be that asbetween the immediate parties to the action the declaration of titleis not only conclusive as to title but is res adjudicata as to the natiire-of the title which was set up by the party to the partition proceed-ings, but I am unable to agree that as between those who . claim tobe the intestate heirs of a person a declaration of title to a specific
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lol bj a partition decree does not -permit them or any of them toshow as a fact that the title pleaded by their predecessor in thepartition proceedings Was not the title by which he held the property,or that in point of fact he had no title at the time he made his claim.It would, I think, be open to a party to prove that whereas the title,pleaded was a prescriptive title, the interests had actually accruedby right of inheritance, or in a case where a title by inheritance waspleaded, that it had, in point of fact, been acquired by purchase.The fact that at the date of the partition action Sirimala had partedwith his interests in this property is not disputed. Sirimala, therc-fqrej had no title to the property, and the only title he had at thetime* of his death was a title attributable to the partition decree.The Kandyan law classifies the property of an individual withreference to the manner in which he became entitled to that propertyinto three classes, viz., (1) Daa liimi, paternal or procreate right:(2). Wadda liimi, maternal or parturiate right: and (8) Lot liimi.right of acquest (see Pereira's Armour. page 49). The expression“ lot kimi ” is vised to express a right to property where that propertyhas been acquired by gift or bequest, by purchase, prescription, orotherwise. It has been repeatedly held that a gift or sale by afather of his inherited property to his son constitutes such propertythe. acquired property of the son. (Tennekoongcdcra Ukkurala v.Samarasinghe William Tillckeratne,1 Mudalihami v. BanJirala,2 andKiri Menika et al. v. Mvtu Menika.3) When a person who is vestedwith title by inheritance donates the property thus inherited andafterwards repurchases the property, it must be deemed to beacquired property. Sirimala in this case divested himself of histitle by inheritance by donating it to Sarana., The title with whichhe was vested at the date of his death Was hot a title acquired bygift, bequest, purchase, or prescription, nor was it a title by inherit-ance. It was a title which must be ascribed to the partition decree,and to. that alone. A search for express authority of the writers onancient Kandyan law canuofc he profitably undertaken in a case suchas this. The Partition Ordinance was only enacted in 1863; Nordoes any similar point appear to have been considered in any of thereported cases of this Court, hut the classification referred to appearsto proceed upon the principle that-all property acquired otherwisethan by inheritance falls into one class, whereas inherited propertyis classified into two main heads, paternal or maternal. _A closerexamination of the Kandyan law discloses that these two mainheads under which inherited property was classified are made thesubject of further special divisions. The broad distinction, therefore,would seem to be between inherited and property acquired other-wise than by inheritance. This, it seems to me, is clearly acquired
1 (1SS2) 5 8. C. G. 40.* {1S9S) 3 N. L. JR. 209.
1026.
Gabtlx J.
Kalu Banda
v.
Mndianse
*(1899) 3N. L.R. 37$.
( 466 )
1926.
Gabyin J.
Knlu Bandav.
Mudianse
property to which the plaintiff became entitled otherwise than byinheritance, and as such its devolution must be regulated by therules applicable to acquired property. It was contended for therespondent to this appeal that the act of Sirimala in appearingin th& partition proceedings and claiming to take a share of theproperty as his own to the exclusion of Sarana and all others amountsto a revocation of the gift. Beyond these facts there is nothing toindicate that when Sirimala filed his answer in the action to which,as I have already said, he was made a defendant, he did so withthe deliberate intention of revoking the gift. The learned DistrictJudge in the course of his judgment has referred to a series of otherdeeds relating to land which was the subject of this deed of gift towhich both Sirimala and Sarana were parties which appear toindicate the affirmation of the deed of gift by Sirimala. There isno reason to suppose, knowing these villagers as we do, that Sirimalaintended either to defraud Sarana or to revoke the deed in his favour.The more natural explanation is that being a Kandyan he stillregarded himself as vested with some sort of right to the land whichhe had gifted to his illegitimate son, and having been made adefendant and noticed to appear he went forward and vindicatedtheir rights to the land without any intention of revoking the deedof gift or of acquiring fraudulently a title to the prejudice of hisillegitimate son. The District Judge appears to have taken acorrect view of the evidence when he declined to hold that the gifthad been avoided by revocation. For these reasons, I think thatat the date of his transfer to Punchi TJkku, Sarana was vested withtitle to these premises by right of inheritance from Sirimala, whoseillegitimate son he was.
The appeal is accordingly allowed, and judgment will be entereddismissing the plaintiff's action, with Costs to the defendant in bothCourts.
Lyali, Chant -1.—I agree.
Appeal allowed.