120-NLR-NLR-V-18-KALU-v.-KIRIA.pdf
( 465 )
Present: Shaw J.
KALU v. KIBIA.
SSd 1 0, It, Mcitdle, 111388,
Kandyan law—Mother heir to the acquired property of the children—Deed of gift subject to condition that donee should render assistance todonor—Donee dying before donor—Construction of instrument—Whether it is a testamentary disposition or deed of gift.
A Kandyan mother inherits her children's acquired properties inpreference to the father. This role is not restricted only to caseswhere the mother was married in binna; nor only to caseswhen the property has been acquired from a source other than thefather.
A Kandyan deed of gift, subject to the condition that thechildren should render help and assistance to the donor during hislifetime, does not become null and . void on the donee dying duringthe lifetime of the donor.
fjl HE facts are set out in the judgment.
Bawa, K.C. (with him A. St. V. J aye wardens and J. W. de Silva),for appellants.
Wadsworth, for defendant, respondent.
Ovr. adv. unit.
November 22, 1915. Shaw J.—
The question involved in this ease is the ownership of a one-fourthinterest in a land called Medugahawela. The land originallybelonged to one Kaluwa, who by deed dated August 21, 1895,gave it to bis wife Kiri and his three children Kalu, Bodi, and
IMS.
( 466 )
JUriyu. The deed provided that-on the de^th of Kiri her one-fourthshare should devolve on the three children. One of the children,Kirjya. died in 1897, in .the lifetime <£ his father Kaluwa, who diedin the year 1900 without having revoked the deed of 1895. Bytieed ‘dated February 18, 1015, Kiri purported to convey jtoi thedefendant the freehold of one-fourth of the land, the position taken,up by her being that she, as heir to her child Kiriya under Kandyanlaw, was entitled to the one-fourth gifted to him by his father bythe deed of August, 1895.
The first pftintiff is Kalu, one of She other children, and thesecond and third plaintiffs are the representatives of .the otherchild, who survived his father Kaluwa and died in 1907. They$laim that upon Kiriya’s death the one-fourth interest gifted tohim by the deed of 1695 reverted to his father Kaluwa, and thatthoy, as Kaluwa’s heirs, are entitled to his share, and they havebrought the present action to assert their claim. The Commissionerof Bequests has dismissed the plaintiffs’ action, and this appeal isbrought from his decision*
The plaintiffs’ case is put on three grounds. First, that the deedaof August 21, 1895, is not a deed of gift, but is a testamentarydisposition; and the bequest of the one-fourth to Kiriya havingfailed in consequence of his death before the testator, Kaluwa,died intestate as to this share, and it therefore passed on his deathto his other two children. Second, that the right of the mother,under the Kandyan law, to inherit the acquired property of herchildren .in preference to the father, is' not established by anyjudicial authority and is not clear from the text-writers on Kandyanlaw, and that therefore the law of succession of the MaritimeProvinces should prevail, or at any rate the dicta of .the text-writers should be confined to the case of a bmna married woman,and should not Be extended to acquired property that has beenacquired from the father. Third, that, even assuming that thedeed of August 22, 1895, amounted to a deed of gift, and not to atestamentary disposition, it was subject to a condition that- thechildren should render help and assistance to the grantor duringhis lifetime, and as this became impossible on the part of Kiriya inconsequence of his ‘dying in the lifetime of the grantor, the gift tohim of one-fourth became null and void.
In support of the first contention the ease of Sundata v. Jfieria 1was cited, in which a somewhat similar deed was held to be atestamentary disposition. In that case, however, the terms of thedocument were by no means identical to those of the. one underconsideration, and, as stated by Phear C.J. in his judgment, “ eachdocument must 6tand or fall by its own merit. ” The Court in thatcase came to the conclusion that that particular document was, in.view of the circumstances and intention under which it was executed,
8&.&W J.
Kotov.KMi
* (1879) 3 L. R. 81.
( 467 )
solely testamentary in character, aftd appears to have been largely 1915.influenced In coming to its decision by toe foot that the deed passed9 g,f/w j.. *0 present interest in toe property, but was at most a gift to take ^effect on toe donor's death. This fact, however, as appears" fromKirZ'
toe later oases of In re Henaya 1 and Ip re Neina MohammaSo,* bynoshows1 that toe document was a testamentary disposition.
Hie document in toe present case is as follows
“ Now all these high , and low lands, houses, and plantations arehereby made over by way of gift by me, Egodagedgra Kaluwa, asI am now old and infirm, and with a view to seouring all my comfortsduring my lifetime in tofa world, unto and in favour of my wifeEgodagedera alias Nekatduragedera Kiri, of 'Ehelegastenna, inBattota, in Pallesiya pattu, of Matale, and my lifetime childreftby ha*, Egodagedera Kalu, Bodi, and Kiriya, residing in toe samevillage, in the manner following:—
44 First.—That during my lifetime in ibis world my said wife Kiri,my children Kalu, Bodi, and Kiriya, do render to me all help midassistance when I am in good health as also when I am ill.
14 Secondly.—After my death toe said Kiri, Kalu, Bodi, and Kiriya^shall be at liberty to possess toe said high land, low lands, houses,and plantations.
“ Thirdly.—The fourth share, which my wife Kiri shall becomeentitled to on my death, be possessed by her up to toe end of herlifetime, and on her death toe said share to devolve on her threechildren, and they and their heirs, Ac., do possess the same fully ataB times.
44 Fourthly,—This . . . that against this grant my heirs, &o.,shall not make any dispute.
44 Fifthly,—This deed of gift was accepted by me, Egodagedera,alias Nekatduragedera Kalu, above named, for myself and on behalfof the said Kalu, Bodi, and Kiriya, as they are minors.
** In witness whereof, &c.”
The deed appears very similar to that under consideration inCarolis v, Davifh.* It is called throughout a 14 gift *’ and “ grant *’and 44 deed of gift," and is accepted as a gift by one of the doneeson behalf of himself and his infant brothers, and is not directedsolely against toe donor’s heirs, as was the document in Sundora v.
Pieri8t4 and I have no hesitation in holding that it is and wasintended to he a gift, and not a testamentary disposition.
It was suggested that CaroUs v, Davith * was not a Kandyan case;but I see no reason why a Kandyan document of this sort should beconstrued in a different manner than any other, and the foot thata Kandyan deed of gift is generally revocable, if it affects toe
» {1905) & Bal. 78.• (1907) 27 N. L. R. 17.
* (2591) 9 C. L. R. SR.4 (1975) 8 C. L. R. 52.
35,
( 408 )
1MB. construction at all, seems rather to show $hat the dooument is agift, and not a testamentary disposition.
r ^th regard to thg second contention* I felt some difficulty-Kiria during* the argument. The right of a Kandyan mother to inherit,her children’s acquired properties in preference to the father restsprincipally on a statement found in Armour 87 that the mother isheiress to the acquired property of all hinds left by her child. This,however, is supplemented by the passage in Armour 89 that “ ifthe mother has departed this life previous to the demise of herchild, then the father will be entitled to the reversion of the child’sacquired property." Sawyer 17 also appears to lay dowff the law’to the Bame effect, and later writers have accepted the position.Judicial recognition of the rule is to be found in D. C. Kandy, 21,994,1and Banhami ». Menik Etana;* and although some reservation ofthe father’s rights seems to be suggested in Ulckuhamy v. BalaEtana* I think the law is sufficiently settled to prevent a differentrule being applied except by an act of the Legislature. The mereabsence of direct authority in the face of the unanimous statementsof the text-writers appears to me to show that the position taken,ftp by them has been generally accepted, and although it is somewhatdifficult to find a cause of origin for the rule, it probably lies in .theformer uncertainty of Kandyan marriages, which could be dissolvedat will, and in the custom of polyandry, which in some oases rendered .it impossible to say who the father was.
I can find no statement in any of the books or judicial authorities .restricting the rule to eases where the mother was married in binna,and can see no good reason for any such restriction; neither can Ifind any authority for supposing that it applies only to cases wherethe property has been acquired from sources other than the father.No’ distinction between different classes of property for the purposesof inheritance seems to be recognized other than “ paraveni *’ and" acquired," and the case of Dingiri Banda v. Medduma Banda*establishes that when " paraveni ” property has once been" acquired ”, even from an ancestor, it thereafter loses its attributesas " paraveni ’’ property.,
With regard to the third contention, it appears to be directlynegatived by the Full Court decision in Pula v. Doti*
In my opinion the plaintiffs have failed to make out any rightto the property in dispute, except to the one-half granted them bythe deed of 1895 and to the reversion in one-fourth on the death oftheir mother Kiri. The appeal is therefore dismissed, with costs.
Appeal dismissed.
» (I860) Austin 18S.* (1008) U N. L. B. 826.
* (1007) 10 N. L. B. 163.* (IMS) 17 N. L. B. SOI.
* (1876) Bam. 163.