081-NLR-NLR-V-62-KARUNAWATHIE-MENIKE-Appellant-and-EDMUND-PERERARespondent.pdf
BASNAYAKE, C.J.—Karimnwathie Menifee v. Edmund Per cm
433
Present : Basnayake, C.J., K. D. de Silva, J., Sansoni, J.,H. N. G. Fernando, J., and T. S. Fernando, J.
KARUNAWATHIE MENIKE, Appellant, and EDMUND PERERA,
Respondent
S. C. 541—D. C. Kandy, 5029IP
Kandyan Paw—Diga married widower—Death of non unmanned and without issue—Devolution of i-nvmovable property inherited by him from his mother—KandyanLaw Declaration and Amendment Ordinance, No. 39 of 1938, .s. 16*
Held, by SjVnsoni, J., H. N. G-. Fernando, J., and T. S. Fernando, J.(Basnayake, C.J. and K. D. de Sidva, J., dissenting)':Prior to tho date
when the Kandyan Law Declaration and Amendment Ordinance No. 39 of1938 was enacted, when an unmarried Kandyan died intestate and withoutissue, leaving surviving him his brothers and sisters and his diga marriedfathor, any immovable property which the doeeasod had ini eritod fromhis inothor dovolvod absolutely on his fathor and not on tho brothers andsistors subject to a life interest in favour of the father.
A
xiPPEAL from, a judgment of the District Court, Kandy, This appealwas referred to a Bench of five Judges under section 51 of the CourtsOrdinance.
S. C. Ratwalte, with £>. G. W. Wickremasekera, for Defendant-Appellant.
H. W. Jayewardene, Q.C., with M. Jtafeek and G. P. Fernando, forPlaintiff-Respondent.
Cur. adv. vult.
November 11, 1960. Basnayake, C.J.—
This appeal was argued before de Silva J. and myself on 7th December1959. As there are conflicting decisions on the question of Kandyanlaw arising on this appeal and as some of the decisions are not in harmonywith the law as stated by Sawers and D’Oyly and declared by the Kan-dyan Law Declaration and Amendment Ordinance No. 39 of 1938, underSection 51 of the Courts Ordinance, I made order that this case shall beheard by five Judges of this Court.
The question for decision is whether on the death of a Kandyan un-married and without issue, leaving surviving him his brothers and sistersand his diga married father, his deceased mother’s immovable propertywhich she acquired by purchase before her marriage in diga and whichhe inherited on her death goes absolutely to his father or to the brothersand sisters subject to a life interest in favour of the father.
Learned counsel for the appellant sought to canvass the decisions ofthis Court which are not consistent with the law as stated by Sawers.
It is common ground that Bandara Menika and TJkku Banda werehusband and wife and were married in diga on 7th August 1899. At the
19—Lxn
2J. N. R 15G8C—2,025 (2/61)
434
BASNAYAKE, C.J.—Karunawathie Menike v.. Edmund Per era
time of her marriage Bandara Menika was the owner of the land in disputeby right of purchase from Tikiri Mudianse on deed P3 of 30th August1892. On her death it devolved on her five children Muttu Banda (1/5),Kumarihamy (1/5), Kamalawathie (1/5), Ran Banda (1/5) and Karu-nawathie (1/5) in equal shares. Muttu Banda died on 7th October 1931unmarried and issueless. On his death Ukku Banda claimed that hebecame entitled to his deceased son’s share in the property inheritedfrom his mother and sold it to the plaintiff by deed P 6 of 16th May 1932.The plaintiff also purchased -the shares of Kumarihamy (1/5) by P 7 of17th April 1930, Kamalawathie by P8 of 16th January 1933, Ran Bandaby P9 of 12th January 1935 and Karunawathie by P10 of 12th August1940. By deed X)1 of 13th August 1942 the plaintiff transferred to thedefendant the 1/5 share purchased on P10 from Karunawathie Menika.The defendant disputes Ukku Banda’s right to inherit the maternal'property of his son and asserts that Muttu Banda’s (1/5) share devolvedon his brother and sisters.
In the instant case the learned District Judge has held that the fatherinherits the property absolutely on the authority of the case of AppuhamyVi Silva 1. In that case Gratiaen J. held that the father succeeded abso-lutely on the footing that the decision in Ghelliah v. Kvltapitiya Tea andRubber Co. Ltd. 2 was an authoritative decision on the point. I findmyself unable to agree with his view that that is an authoritative decision.Garvin J. expressly states after quoting section 33 of Sawers Digest andreferring to the case of Appuhamy v. Hudu Banda, 3 .•—
“ There seems no reason to doubt that a diga married father is atleast entitled to a life interest, in the landed property of a deceasedchild which such child inherited through his mother. Kiri Menika istherefore entitled at least to a life interest in the lands involved in theaction.”
” It was submitted, however, that he is entitled to inherit suchdeceased child’s property without any limitation it being premisedthat such child died without issue. This is a point upon which theKandyan law is far from being clearly ascertained and 1 am not surethat it is necessary for the purposes of this case to decide the question.”
He then goes on to say :—
“ Inasmuch however as the question has been raised and argued atsome length it is perhaps desirable that we should express our viewsupon the point.”
It is clear from these words that the Judges did not purport to domore than express their views on the point as it had been raised and. .argued at length. On the facts of the case before him Garvin J. said :—
“ …. In this particular case since the property of the child
was originally that of her grandfather it may well be that in the absence• of closer relations of the intestate child’s mother the father would be
1 (1955) 56 N. L. R. 247.
a {1532) 34 N. L. R. 89.
3 (1903) 7 N. L. R. 242.
BASNAYAKE, C.J.—ICaminatoathie Menifee v. Edmund Per era
435
preferred to the children, of the child’s mother’s sisters who by con-tracting diga marriages had excluded themselves from participating inthat inheritance.”
Garvin J. makes no reference in tins judgment to the case ofJBungappu v. Obias Appuhamy x, which is a judgment of two Judges andwas decided before Appuhamy v. Hudu Banda {supra) to which he refers.In Bungappu’s case Moncreiff J. with Browne J. concurring states :— .
“ By Kandyan Law, on the death of a person without issue leavingparents, brothers, and sisters, the usufruct of his acquired property goesto his parents, and in this case the usufruct of Appuhamy’s acquiredproperty went to Dingiri Menika, the mother.”
This is a clear decision and is in point. Though it deals with acquiredproperty the rule of succession of the parents is the same in the case ofinherited property. The judgment refers to the passages of Sawers andMarshall quoted below :—
In the case of Appuhamy v. LLudu Banda (supra) Middleton J. followingSawers but independently of Bungappu v. Obias Appuhamy (supra)formed the view that the diga married father derived only a life interestin the immovable property of his deceased son dying intestate andissueless and leaving brothers and sisters. In Bisona v. Janga and others 1 2I followed that decision in preference to the case of Ranhottia v. Bilinda3.In Ranhottia's case the Court followed the view of Armour in preferenceto the view ■ contained in section 90 of Marshall’s judgments. Evenassuming that what appears in section 96 of Marshall is the view of Sawersthe reason for preferring Armour to Sawers is not stated. In Ran Menikav. Mudalihamy4 and Appuhamy v. Dingiri Menika5 the opinions ofMarshall and Sawers were preferred to Armour’s. Grenier J. who wrotethe judgment in Ranhottia's case observes :—
“ It will thus be seen that there is a direct conflict between Sawerand Armour in regard to the question whether the acquired propertyof a son goes to the father or to the brothers and sisters. Accordingto Armour, where both father and mother are alive, and one of theirsons dies unmarried, childless, and intestate, bis acquired propertygoes absolutely to the mother to the exclusion of the father, and it isonly in the event of the mother having predeceased her son that thefather becomes entitled to the property. I need hardly say .thatArmour's opinion is not based upon any positive rule of the KandyanLaw to be found in any standard authority on the subject, nor isSatcer’s opinion, on the other hand, based on any such authority.But dealing as we are with a system of primitive law and custom suchas obtains amongst Kandyans, I am inclined to think that the DistrictJudge was right in following the opinion of Armour rather than ofSawer."
1(1001) 2 Brou~ne 2S0.*3 (1909) 12 N. L. Tt. 111. .
2(lOdS't 41 G. L. W. 40.* (1913) 2 G. A. G. 11G.
6 (1SS9) 9 S. G. G. 34.
436
BASNAYAICE, C. J.—ICarunawalhie JWenike v. Edmund JPerera
The two statements referred to by Grenier J. are Armour (Perera atpp, 88-89) and Marshall, section 96. Though he refers to Sawers, p. 13,
X have not been able to trace at that page in Modder’s edition the passagehe had in mind. They are as follows :—
Armour :—“ The mother is the heiress to the acquired property ofall kinds, left by her child who died unmarried and without issue andintestate, and such property will be entirely at her disposal.The mother is entitled to all the movable property left by her daugh-ter who died a widow, childless, and intestate to the exclusion ofthe deceased daughter’s full sisters and their issue. If the motherhad departed this life, previous to the demise of her child, then thefather will be entitled to the reversion of the deceased child’sacquired property, if circumstances did not disqualify the fatherfrom coming to the succession.”
Marshall, section 96 :—£f If a person die childless, but leaving parents,brothers and sisters, the property which the deceased may havereceived from his or her parents reverts to them respectively (iffrom the father, to the father, if from the mother to the mother)and his acquired property, whether land, cattle or goods, also goesto his parents, but only the usufruct of it. The parents cannotdispose of such acquired property by sale, gift or bequest, but itmust devolve on the brothers and sisters, who however, have onlythe same degree of interest in their deceased brother’s acquiredproperty that they have in their deceased parent’s estate, ultimatelyit is divided equally among the brothers of the whole blood of thedeceased, or their sons according to what would have been theirfather’s share ; failing brothers’ sons, it goes to sisters of the wholeblood or their sons, failing them, to the brothers of the half-blood,uterine, and their children, failing them, to the sisters of the half-blood, uterine, and their children, failing both brothers and sistersof the half-blood uterine and their children, to brothers of thehalf-blood by the father’s side and their children, next tosisters of the half-blood, by the father’s side and their children,next to the mother’s sister’s side, that is to say, the mother’s sister’schildren (see the latter part of par. 91), failing them, to the mother’sbrothers and their children, next to the father’s brothers, and theirchildren, and, failing them, to the father’s sister’s, and their children.”
The only other passage in Armour which has a bearing on the questionbefore us though it does not deal with a case in which the deceased sonleaves brothers and sisters is that at Perera p. 76. This is what he says :—
“ The father is entitled to inherit the lands and other property,which his deceased infant child had inherited from the mother, inpreference to the relations of the person from whom that propertyhad been derived to the said child’s mother.”
The judgment of Grenier J. is itself not a strong expression of opinionin the Kandyan Paw. The report does not show that the case of Appu-hamy v. Hudu Banda {supra) was cited or considered. Nor does the
BASNAYAK-E, C. J.—Karunawathie Menifee, v. Edmund Per era
437
earJier case of Dingiri Memika v. Appuhxxmy1 show that the view takenin Appuhamy’s case was considered. Dingiri Menika’s case itself doesnot appear to be an authoritative expression of opinion. This is whatWendt J. says :—
“ In this unsatisfactory state of the authorities, the learned DistrictJudge, whose long administration of the Kandyan Law in the DistrictCourts of Kandy and Kurunegala entitled his opinion on a controvertedpoint to very great weight, has accepted the view adopted in the caseof Austin. No decided case distinctly negativing the father’s right,which was there rerognis; d, has been brought to our notice, and Ithink the judgment of the Court below should be affirmed.”
The report of the case in Austin p. 155 is very meagre and deals withthe succession to paternal property a case the facts of which are entirelydifferent from the one before us and does not apply to it, the conflictof claims there being between the father of the deceased child and thechildren of her deceased grandaunt. It reads “ Sorana was the originalproprietor of a certain land. He had a sister called Poossamba, anda daughter (who was married to plaintiff) called Rangkiry. At Sorana’sdeath, the daughter succeeded to the land ; and on the death of thelatter, her daughter Belinda (born to plaintiff) became entitled to the same.She however also died shortly after, and her father in this suit claimsthe land as sole heir-at-law. The defendants are the children of Poossamba(Rangkiry’s paternal aunt). The Court below held that the’father wasthe heir-at-law of his child.” In appeal it was affirmed.
Sawers and Armour contain the only extant collections of the customsof the Kandyans. The subsequent works of Modder and Hayley citeSawers and Armour as authorities. Marshall’s exposition based onSawers and Armour has also come t-o be regarded as authoritative. Theonly other statement of Kandyan law is the Niti Niganduwa. There isnothing in it which contradicts Sawers or which is directly in point onthe question before us. It would appear from the observations of Dias J.in Appuhamy v. Dingiri Menika2 that Marshall’s opinions on Kandyanlaw were treated as of great weight as far back on 1889. The case ofIn re the Estate of Punchi Banda2 decides that the diga married fatherof an intestate dying without issue is entitled to inherit, before theuterine half-sisters and brother of his deceased mother, the propertyderived from his mother, which she in turn inherited from her father.This is also not decisive of the point before us. Ukkuhamy v. BalaEtana4 decides that when a Kandyan dies unmarried intestate and■without issue his acquired immovable property devolves on his mother(the father being dead) in preference to the deceased’s brothers andsisters. In this state of the decisions of this Court none of which can beregarded as authoritative decisions we must turn' to the writers onKandyan law such as Sawers, Armour and Marshall. Of these Sawersand Marshall are regarded as being more authoritative than Armour.1 (19 >7) 10 N. L. J?. 114.8 (1907) 2 A. C. It. 29.
* (1880) 9 S. O. <7. 24.* (1908) 11 E. L. R. 226.
2»J. N. R 15686 (2/61)
438
BASNAYAICE, C.J.—Karunaioathie Menike v. Edmund, Per era
Of Sawers Lawrie J. who himself was an authority on Kandyan Law andwhose opinion on questions of Kandyan Law has always been regardedwith respect says in Kiri Menika v. Mutu Menika 1 “ I regard Sawersas the best authority on Kandyan Law. He was Judicial Commissionerof Kandy from 17th August, 1821, until he retired on pension on 3rd July,1827.” Of Armour the same Judge says at p.379 “ Mr Armour’s opinionhas not the same weight as Mr. Sawers’, for he was not a Judge ; hewas appointed Interpreter to the Judicial Commissioner in October,1819 ; afterwards he was Secretary to the Judicial Commissioner’s Court,an office which he held when Mr Sawers was the Commissioner.” OfArmour’s work Lawrie J. says “ Armour’s grammar of Kandyan Law(first published in the Ceylon Miscellany in 1842) is mainly a translationof the Niti Niganduwa ”.
The following is what Sawers says on the point arising in this case(s. 33, p. 12)
“ A wife dying intestate, leaving a son who inherits her property,and that son dying without issue, the father has only a life interestin the property, which the son derived or inherited from or throughhis mother. At the father’s death, such property goes to the son’suterine brothers or sisters, if he have any, and failing them, to theson’s nearest heirs in his mother’s family.”
Earlier he had said in s. 29, p. 10—
“ Failing immediate descendants, that is, issue of his own body bya wife of his own or higher caste, a man’s next heir to his landed property(reserving the widow’s life interest) is his father, or if the father bedemised the mother, but this for a life interest only or on the sameconditions as she holds her deceased husband’s estate, which is merelyin trust for her children ; next, the brother or brothers and their sons ;but failing brothers and their sons, his sister or sister’s son succeeds.”
Marshall adopts the view of Sawers. In his treatise he says :
“ 79. Failing immediate descendants, that is, issue of his ownbody by a wife of his own or of higher caste, a man’s next heir to hislanded property (reserving the widow’s life interest) is his father,or if the father be dead, the mother, but for a life interest only.”(Marshall, p. 33S).
“ 83. If a wife die intestate, leaving a son who inherits her property,and that son die without issue, the father has only a life interest in theproperty which the son derived from or inherited through his mother.And at the father’s death such property goes to the son’s uterinebrothers or sisters, if he have any, and, failing them, to the son’snearest heirs in his mother’s family.” (Marshall, p. 340).
Even John I>’ Oyly confirms the view that the parents get only alife interest. See D’Oyly, p. 105 :—
,£ N.B. The Chiefs say that both Parents have an equal life interestonly in the property—the property must ultimately go to the Brother.
1 (1890) 3 iV. L. Tt. 370 al 378-
SANS ONI, J.—JCanuuiwathie Menxke v. Edmund Per era439
“ If he leave only a Father and Brothers, his Land and goods to hisFather—for life only.
“ If he leave only a father, Sister or Sister’s son, the same—for life.only.
** If a man die leaving a Father and Mother and Brothers and Sisters,property acquired from either of his parents reverts—if he has noFather, both to his Mother—if no Mother, both to his Father.
“ But only a life interest—It must be kept for the Brothers and forthe Sisters married, in Binna.”
The following statement in the Niti-Niganduwa at p. Ill supports theview that the father has only a life interest : “ Again, inasmuch as theproperty of the mother is, on her death, inherited by her child or children,if she dies leaving her husband, he may, on behalf of the children, takecare of the lands etc. so inherited, but he cannot appropriate or alienateany portion of them.”
The fact that the view I have expressed ab we has been adopted by theLegislature in section 16 of the Kandyan Law Declaration and AmendmentOrdinance No. 39 of 1938 when enacting that piece of Legislation, to mymind, reinforces the conclusion I have reached. As the Kandyan LawCommission did not recommend any change in the diga widower’s rightto the acquired property of his deceased wife (ss. 256—269—Report ofthe Kandyan Law Commission), Section 16 may be rightly regarded as adeclaration and not an amendment of Kandyan Law.
I therefore set aside the judgment of the learned District Judge anddirect that the shares of the respective parties be determined accordingto the law as stated herein and that a decree be passed accordingly.
de Silva, J.—I agree.
SaNSONI, J.—
The question for decision is whether property which a Kandyan childof diga married parents inherited from his mother devolves, on his deathunmarried and without issue, on his father or on his brother and sisters.
It was recognised long ago that the institutional writers Sawersand Armour did not express any decided or clear opinion on the point.Sawers at page 8 of Campbell’s edition says : “ Failing immediate des-cendants, that is, issue of his own body by a wife of his own or a highercaste, a man’s next heir to his landed property, (reserving the widow’slife interest) is his father, or if the father be demised, the mother, butthis for a life interest only, or on the same condition as she holds herdeceased husband’s estate, which is merely in trust for her children ;next the brother or brothers and their sons ; but failing brothers and theirsons, his sister or sister’s son succeeds.” This passage has been com-mented on in Modder’s Kandyan Law (1914 edition) at page 599 in thefollowing terms : “ It is noticeable that while Sawers restricts the mother’sright to a usufruct, it does not subject a father’s claim to any limitation
440
SANSONI, J.—Karunawcithie Menifee v. Edmund Perera
whatsoever, but leaves it unqualified and absolute.” Modder also citesit as authority for the following statement at section 307 : “ Property,inherited from his or her mother or maternal ancestors by a person dyingchildless and intestate, will devolve on his or her heirs on the mother’sside, in the following order : (1) the diga married father, (2) brothersand sisters of the full blood equally, and their issue per stirpes.” Modderalso remarks at page 490 that although Sawers does not expressly statethat it is a condition precedent to the father’s inheriting that he shouldhave been married in diga, the dictum should be understood as implyinga marriage in diga, which was the most common form of marriage.
In Ukkuhumy v. Bala Etana1, Wendt, J. agreed with the view of Lawrie,
J.that this passage in Sawers. refers to the paraveni property of theperson : he also pointed out that it deals with a case in which all thedegrees of relationship are represented.
In Dingiri Menika v. A/ppuhamny 2 there was a contest between a digamarried father and the mother’s- half brothers and sisters with regardto property which the deceased child inherited from his mother. -TheDistrict Judge had held that the father was the sole heir, following theSupreme Court decision in D. C. Kandy No. 23620 3. Wendt, J. referred. to the passage at page 8, which I have already quoted, and pointed outthat a difficulty was created by another passage at page 9 of Sawerswhich reads : “ A wife dying intestate, leaving a son who inherits herproperty, and that son dying without issue, the father has only a lifeinterest in the property which the son derived or inherited from or throughhis mother ; at the father’s death such property goes to the son’s uterinebrothers or sisters, if he have any, and failing them to the son’s nearestheirs of his mother’s family.” Wendt, J. then cited Armour (Perera’sedition page 76) who said that ** the father (by jataka uruma) is entitledto inherit the lands and other property which his deceased infant childhad inherited from the mother, in preference to the relations of the personfrom whom that property had been derived to the said child’s mother.”While remarking that the authorities were in an unsatisfactory state,Wendt, J. adopted the view of the District Judge whose experience ofthe administration of the Kandyan Law entitled his opinion to verygreat weight. He also remarked that no decided case negativing thefather’s right had been brought to their no ice. Middleton, J. agreedw th Wendt, J. and this is significant, because in Apphuhamy v. HuduBanda 4 Middleton, J. had previously held that a diga married widowerwas entitled only to a life interest in property which his deceased childrenhad inherited from their mother. In his judgment in that case, whichwas that of a single Judge, Middleton, J. referred to the passages atpage 9 of Sawers, and page 76 of Armour, but not to the passage atpage 8 of Sawers.
The father's claim to an absolute estate even in his child’s acquiredproperty was upheld in Ranhotia v. Bilinda 5. Mr. Hayley in his book.
1 {1908) 11 2V. L. Ti. 226.8 (1852) Austin 155.
8 (1907) 10 N. L. R. 114.4 (1903) 7 N. L. R. 242.
(1909) 12 N. L. R. 111.
H. NT. G. FERNANDO, J.—Rarunawathie Menifee v. Edmund Per era
441
on Kandyan Law, published in 1923, doubted the correctness of thedecisions in Vkhuhamy v. Bala Etana 1 and Ranholia v. Bilinda 2 but theview taken earlier has always prevailed.
The question was again raised, after a lapse of 25 years, in Chellidhv. Kuttapiliya Tea and Rubber Co. 3. Garvin, J., with whom Jayewardene,A. J. agreed, considered the question whether property which a Kandyaninherited from her mother devolved on her father or on her maternalcousins. It may be that it was not necessary to decide the question inthat case, but it was raised and argued at some length. Garvin, J.referred to the earlier authorities, which I have already mentioned, andsaid : “ The weight of judicial decision would seem to favour the viewthat the father is heir to the property of his child who dies intestateand without issue, not merely to a life interest therein but to the full-dominium.”
Finally, in Appuhamy v. Silva4, Gratiaen, J. (with whom I agreed)■followed the ruling in Chelliah v. Kuttapitiya Tea and Rubber Co.". Wewere there invited to reconsider the question in view of the decision ofBasnayake, J. (as he then was) in Bisona v. Janga 6, where it was heldfhat the father inherited only a life interest in his child’s property.Gratiaen, J. in- his judgment said that it was “ not at all desirable todisturb a long-established ruling on any question affecting rights ofsuccession.”
Most o°the judges who have had to consider whether a father inheritedonly a life interest or an absolute interest in property which his deceasedchild had inherited from the mother have admitted that it was notan easy matter to decide, but a decision had to be made and it was mademany years ago. On such a matter “ it is more important that theapplicable rule of law be settled than that it be settled right,” as Brandeis,
J.once observed. In Bourne v. Keane 7, Lord Buckmaster said that whendecisions upon which title to property depends have been acceptedfor a long period of time, they should not be altered even by the Houseof Lords unless it could be said positively that they were wrong andproductive of inconvenience.
Whatever may be the better view, it is clear that for at least fiftyyears this Court has, save for one instance, consistently held that thefather succeeds to the full dominium. The profession and tin* publicwould have acted on that basis, and I think we would be doing graveinjustice to many persons if we were now to disturb the law as laid downby successive generations of judges.
I would dismiss this appeal with costs.
H. N. G. Fernando, J.—
I agree with the reasons given by my brother Sansoni (whose judgmentI have had the opportunity of reading) for declining to reconsider theview maintained in a series of decisions of this Court upon the question
1 (73(95) 11 N.L. R. 226.* (1055) 56N.Z>.R.247.
(1900) 12 N.L. R. 111.6 (10 .2) 34 N. L. R.SO.
(1032) 34 N.jL. R. SO.6 (1048) 41C.L.W.40.
7 (1910) A. C. 815.
442
T. S. FERNANDO, J.—Ka.ru.na.ioa.thie. Menilce u. Edmund Perera
of law arising in this appeal. The Legislature had a clear opportunity,.when the Kandyan Law Declaration and Amendment Ordinance of1938 was enacted, to declare retrospectively that the law on this questionshould not be taken to have been what those decisions had stated it tobe. The circumstance that this opportunity was not availed of is anadditional reason why I do not feel disposed to overrule the view which,this Court has hitherto upheld.
T. S. Fernando, J.—
I have had the advantage of reading the judgment prepared by mybrother Sansoni and, as I find myself in agreement with him that thisappeal should be dismissed, I shall content myself by setting downshortly the reasons for my conclusion.
The question for decision is whether on the death on 7th October1931 of a Kandyan unmarried and without issue, leaving surviving himhis brothers and sisters and his diga married father, his deceased mother’simmovable property which she had acquired by purchase before hermarriage in diga and which he had inherited on her death goes(a) absolutely to his father or (b) to his brothers and sisters subject toa life interest in favour of his father.
This question has to be decided according to the law relating tointestate succession to property among the Kandyans as it obtained on7th October 1931. Had the question been one of application of thelaw declared as having effect on and after 1st January 1939, it wouldhave had to be decided in accordance with the Kandyan Law Declarationand Amendment Ordinance, No. 39 of 1938, section 16 of which enactedas follows :—
“If a person shall die intestate after the commencement of thisOrdinance leaving him or her surviving parents, whether married inbinna or in diga, or a parent, but no child or descendant of a child andno surviving spouse, then—
(a) the parents in equal shares, or if one only be alive, then thatone shall, if there be surviving any brother or sister of thedeceased or the descendant of a brother or sister, be entitledto a life-interest in the acquired property of the deceased.The right of a sole surviving parent shall arise and continuewhether or not the other parent shall have died before thedeceased intestate ; …. ”
The relevant law has from and after 1st January 1939 therefore beensettled by legislation but, as evidenced by the need for the constitution ofthis Divisional Bench, when the question has to be decided in accordancewith the law as understood before that date difficulties arise on accountof certain differences of opinion to be gathered from reported decisions ofthe Supreme Court. In view of the approach to the problem that.hascommended itself to me, it does not appear to me to be necessary to
T. S. FERNANDO, J.—Kamnawathie h&enike v. Edmund Pet era
443
examine decisions of the Court that have been delivered in the verydistant past, and I shall examine only those decisions that date fromabout fifty years ago.
In the year 1907, a bench of two judges of this Court (Wendt J. andMiddleton J.) in Dingiri Menika, v. Appuhamy 1 upheld the view of thelaw that has been applied by the District Judge against whose judgmentthe present appeal has been preferred. In doing so, Wendt J. observedas follows :—
" In this unsatisfactory state of the authorities, the learned DistrictJudge, whose long administration of the Kandyan Law in the DistrictCourts of Kandy and Kurunegala entitles his opinion on a controvertedpoint to very great weight has accepted the view adopted in the casein Austin 2. No decided case distinctly negativing the father’s rightwhich was there recognised has been brought to our notice, and Ithink the judgment of the court below should be affirmed.”
Middleton J. (who had in the earlier case of Appuhamy v. Hudu Banda 3taken the opposite view) in agreeing with Wendt J’s decision stated :—
** I agree that in view of the conflicting character of the originalauthorities we should affirm the learned District Judge’s judgmentfollowing the case reported in Austin, p. 155, and hold that a diga-* married father of an intestate dying without issue is entitled to inheritbefore the uterine half-sisters and brother of his deceased mother theproperty derived from his mother which she, in turn, had inheritedfrom her father.”
In the following year, 1908, Wendt J. in Ukkuhamy v. Bala Etana 4held that where a Kandyan dies unmarried, intestate and without issuehis acquired immovable property devolves on his mother (the fatherbeing dead) in preference to his (deceased’s) brothers and sisters. Wendt J.for reasons he has set out in that judgment did not consider that thecase of Bungappu v. Obias Appuhamy5 embodies an authoritativedecision.
In 1909, a bench of two Judges (Hutchinson C.J. and Grenier J.) inRanhotia v. Bilinda 6, after referring to the conflict between the statementscontained in Sawer’s Digest and in Armour, stated that it seems rightthat in case a son dies unmarried, childless and intestate, his acquiredproperty should go to his father to the exclusion of his brothers.
This same question was raised in a case—Chelliah v. Kuttapitiya Tea andRubber CoP—that was decided by Garvin S.P.J. and Jayewardene A.J.some 23 years later. The question before the Court in that case waswhether a father is heir to his child bom in a diga connection in respectof landed property inherited through the mother who. inherited in virtueof her retention or reacquisition of her rights of inheritance to her father’sestate. Garvin S.P.J. was not sure whether it was necessary for .the
1 (1907) 10 IV. E. R. 114.4 (1908) 11 N. L. R. 226.
(1S52) Austin's Rep. 155.5 (1901) 2 Br. 286.
(1903) 7 N. L. R. 242.8 (2909) 12 IV. E. R. 111.
7 (1932) 34 N. L. R. 89 at 97.''" '
444
T. S. FERNANDO, J.—Karunaroathie Menike v. Edmund JPerera
purpose of the case before him to decide the question that is now beforeus, but as this latter question had been raised and argued at great lengthhe thought it was perhaps desirable that the Court should express itsview. Having entered thereafter upon a consideration of previousdecisions and other authorities, he went on to say :—
“ The weight of judicial decision would seem to favour the view thatthe father is heir to the property of his child who dies intestate andwithout issue not only to a life interest therein but to the full dominium.While I am myself inclined to think that it is more in keeping withthe principles of intestate succession so far as they are discernible in theKandyan Law that the father should take only a life-interest in theproperty which his deceased child inherited from his mother, thebalance of judicial decision is the other way.”
Even if the view be taken that the statement reproduced above has tobe considered as an obiter dictum, nevertheless the observations of a judgeof the eminence of Garvin S.P.J. must carry great weight. It is signifi-cant that after another 23 years went by, in 1955, another bench oftwo judges (Gratiaen J. and Sansoni J.) in Appuhamy v. Silva1 followedthe opinion expressed by the judges who decided CheUiah's cage {supra)and applied it to the case before them. In doing so, the Court declinedto accede to an invitation to review the qutistion as if it were res hitegra.Nor did the Court think it appropriate that the controversy should berevived by the convening of a Collective Court, notwithstanding a deci-sion in 1948 {Bisona v. Jatuja 2) to a contrary effect, Gratiaen J. statingthat it is not at all desirable to disturb a long-established ruling on anyquestion affecting rights of succession. As a great judge (Lord Mansfield)said nearly a hundred and eighty years ago in Bishop of London v.Fytche 3, “ They had heard very strongly upon the other side arguments-to the contrary ; and certainly it might have admitted of a differenceof opinion ; but since it has been judicially established, there is a periodwhen it is wiser, better ar.d safer not to go back to arguments at large.He did not know where it would lead to …. The object of thelaw is certainty, especially such parts of the law as are of extensive andgeneral influence, which affect the property of many individuals and whichinflict pecuniary penalties ; which create personal disabilities ; and whichwork forfeitures of temporal rights.” That certainty has been ensuredfor us by the legislature where the question of succession now before usis to be decided as on or after 1st January 1939. Where it arises fordecision as at an earlier date, there should be no less certainty and ourduty appears to be to apply the law that has been applied since 1907,i.e. for more than half a century, rather than disturb it.
For the reasons which I have set out above, the judgment of the DistrictCourt should, in my opinion, be affirmed and this appeal dismissed withcosts.
Appeal dismissed.
* (194S) 41 <7. I. W. 40.
» {1955) 56 N. E. It. 247.
3 (1782) 1 Broum P. C. 211.