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Present: The Hod. Sir Charles Peter Layard, Chief Justice,and Hon. Mr. Justice Moncreiff.
KALU v. LAMI.
D. C., Kurunegala, 697.
Kandyan Law—Widow, rights of—Property of husband acquired beforemarriage.
A Kandyan widow has the right to retain possession, during herlifetime, of the acquired property of her husband whether such propertybe acquired before or after the marriage.
PPEAL from a judgment of the District Judge of Kurunegala.The facts sufficiently appear in the judgment of Layard C.J.
Van Langenberg, for the administratis, appellant.
H. Jayewardene, for the respondent.
Cut. adv. vult.
February 14, 1905. Layard C.J.—
The only question raised in this appeal is as to whether Kalu, theappellant, is entitled to retain possession of all the acquired propertyof her deceased husband, or whether her right of retention is limitedto property acquired by her husband during his marriage with her.
With regard to the right of a Kandyan widow to her deceasedhusband’s lands, Armour lays down as follows: "If the deceasedhusband left'other landed property, besides his paraveni or ancestrallands, that is to say, lands acquired by purchase, or lands which he,
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the deceased, had received from his adopted father, in such case the^
widow may have possession of .the whole of such acquired land for '
the remainder of her life, provided she remain single.” As far as Layabd G,J.that passage of Armour goes, no distinction is drawn between thelands acquired by the husband prior to his marriage and landsacquired by him subsequent to his marriage, and neither appellant’s
counsel nor respondent’s counsel have been able .to lay before us anycase in which it was distinctly laid down by this Court that theretention by the widow was limited .to lands acquired by her husbandduring the marriage. The first case to which we. have been referredis one reported in Ramantothan’s Reports for 1861, p. 112, whichmerely lays down the general principle of the right of possessionwith respect to lands the acquired property of her husband, viz., thatthe widow was entitled to a life estate therein. The Full Court inthat judgment does not draw any distinction between lands acquiredpx-ior to the mari’iage of the deceased husband and his widow andlands acquired during the continuance -of the marriage. That case,however, is followed by a subsequent judgment of this Court reportedin Ramanathan’s Reports, 1863-1868, p. 190, in which three Judges,two of whom sat in the former case, say, with respect to landedproperty acquired during the marriage, her rights are different, asis pointed out in the judgment of the case I have above referred to.Now, reading the first judgment, as I said before, it draws no dis-tinction between lands acquired prior to the marriage and landsacquired during the continuance of the marriage; and the Judges inthe later decision do not state why they considered that the formerdecision referred only to landed property acquired during themarriage, neither do they lay down the general principle thatlanded property acquired prior to .the marriage is not such as thewidow would have a right of retention over. We are as capable asthose Judges were of judging what the meaning of the words in theoriginal judgment of 1861 is, and certainly I cannot say that theopinion expressed in the .earlier judgment is limited .to landed propertyacquired during the marriage as suggested by the Judges in the laterdecision. We have also been referred to the judgment in the case ofMenilia v. Horatala reported in 3 S. G. R. 169. Sir ArchibaldLawrie, then Acting Chief Justice, said as follows: “ I do not findauthority of a kind which I think sufficient, that the widow’spossession of acquired land was to come to an end on a secondman-iage. One reason why she was allowed to possess it for her lifewas that in most cases it had been purchased by the savings andexertion of the wife as much as of the husband. ’ ’ There he does notlimit the widow’s rights to the possession of land acquired dxxring themarriage, but he merely gives, as one of the reasons why she wasallowed to possess such land, that in most cases, not in all, it had beenpurchased by the savings of the wife as much as the husband. Thisdoes not amount to a finding on the part of Sir Archibald Lawrie
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1905. that the widow’s right of retention was limited to the possession ofFebruary 14. fond acquired during the second marriage. There is another oaseT.».7.7n -t in which Sir Archibald Lawrie gave a judgment, which is reported in5 N. L. R. 177. That case only dealt with lands acquired after themarriage. In the course of that judgment he says that the actionwas premature, because the defendant was entitled to a life rent ofthe property acquired by her husband during their marriage. Thepoint to be decided in that case was not whether the defendant wasonly entitled to a life rent of the property acquired by her husbandduring their marriage, or whether she would be entitled to a life rentof the whole of her husband’s acquired property. All that was inissue in that case was property acquired by Her husband during theirmarriage, and there was no question raised for decision as to awidow’s rights in respect .of property acquired prior to the. marriage,and it cannot be said the Acting Chief Justice intended to lay downthat widows had no right to retention of property acquired by theirhusbands prior to their marriage. The question was not before him,and consequently he did not decide it. As we can find no actualruling of this Court reducing the right of a widow to the possession ofonly land acquired during the marriage, we think that we mustfollow the general rule laid down in Armour that if the deceased, inaddition to his ancestral property, left acquired lands, the widowwill have the possession of the acquired lands in their entirety forthe remainder of her life.
The ruling of the District Judge on the question must be set aside,and the appellant is entitled to the costs of the contention in theCourt below and of this appeal.
KALU v. LAMI