146-NLR-NLR-V-03-KIRI-MENIKA-et-al-v.-MUTU-MENIKA.pdf
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1800.
October 17.
KIRI MENIKA et al. v. MUTU MENIKA.D. C., Kurunegala, 6,074.
Kandyan Law—Inheritance—Right of illegitimate children to acquired
property of male parent—Meaning of acquired and paraveni
property—Value of Kandyan Law authorities.
K B and M R were brothers. K B by first plaintiff, who was notduly married to him, left two illegitimate children, the second andthird plaintiffs. On K B’s death, the three plaintiffs claimedcertain of his lands as against defendants, who were the children ofM R. The lands in dispute were acquired by K B by gift from hisfather.
Held, per Lawrie, J.—That, according to the Kandyan Law,illegitimate children have no claim to land which their fatherinherited, but they have a right to his acquired property.
“ Acquired ” property includes property as well purchased as in-herited by a person and gifted to his son.
“ Paraveni ” land means land held by a man in his own right overwhich he has disposing power, and which on his death intestate willpass to his heirs.
What is opposed to paraveni is not acquired land, but land held inmaruwena.
Sawers is the best authority on Kandyan Law.
Armour’s opinion has not the same weight as Sawers’.
' I 'HE facts and law of the case are fully stated in the followingjudgment of the District Judge (Mr. Macleod):—
This case raises a most interesting point of Kandyan Law. andI must thank the proctors for the parties, Messrs. Daniels andGunawardana, for the trouble they have taken to place before methe various authorities on the subject, and the full manner inwhich they have argued the case.
The facts relevant to the decision in this case are as follows :—
One Rajagam Mudiyanselage Kiri Banda was owner of the fourlands mentioned in the plaint, and he died intestate about fouryears ago. First plaintiff, Kiri Menika, lived with him as.his wife,and has issue to him, second and third plaintiffs. Ukku Ettana andKalu Banda. Notice of the intended marriage between theintestate Kiri Banda and first plaintiff, Kiri Menika, was given, butthe marriage was never actually celebrated before the Registrar.It is however admitted that first plaintiff and Kiri Banda were ofthe same caste and respectability. Defendants are the childrenof Kiri Banda’s predeceased brother, Menik Rala. The questionto be decided is, “ Who are the lawful heirs to the four lands above“ mentioned ? ”
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Mr. Daniels argues that plaintiff’s are in any case entitled to thelands in dispute, whether they be paraveni or acquired property.He cites as authority Solomons’ Manual of Kandyan Law, p. 17.
But they would have a right to the paraveni property df theirfather if he was of equal rank and caste with the woman, andacknowledged the issue as his children.
Solomons refers in a footnote to Armour, p. 135, and Sowers, p. 4.Perera’s edition of Armour, to which I have referred, has no bearingon this point in p. 135, but Sowers, p. 4, says: “ A daughter having“ unauthorized intercourse with a paramour in his father’s house“ bearing children, such children have no right of inheritance in“ their maternal grandfather’s or grandmother’s property ; but the“ father being known and the children acknowledged by him, they“ would have a claim of inheritance in his paraveni property, pro-“ vided the paraveni were of equal rank and degree with the“ mother.”
I cannot think that this is any authority for the proposition ofMr. Daniels. Two elements are essential: (1) the intercourse mustbe unauthorized ; and (2) it must take place in her father’s house.Neither of these elements is proved or admitted in this case.
I therefore think the real question is whether the lands indispute are the intestate’s paraveni, or whether they are his acquiredproperty. If acquired, it is agreed that plaintiffs are entitledto judgment.
Mr. Gunawardana, for'defendants, admits plaintiff’s claim to thefourth land. He contests plaintiff’s right to the first three landsand makes this proposition of law: “ These lands, being the“ paraveni and not the acquired property of Kiri Banda’s father,
“ and gifted, not sold to the heir-at-law, Kiri Banda, ought to be“ considered Kiri Banda’s paraveni property.”
He thus distinguishes the present case from the one reportedin 5 S. C. C. 46 (D. C.. Kandy, 88,284), where the father boughtproperty and gifted it to his son, and also from the onereported in 3 N. L. R. 2.10 (C. R., Matale, 1,763), where the fathersold his paraveni property to his son. No decision of theSupreme Court precisely in point has been cited on either side.
I therefore decide this case on my interpretation of Armour’sdefinition of lat himi, given on p. 90 of Perera’s Armour. Thedefinition is as follows : “ This right, namely, lat himi, or right“ of acquest to property, is acquired by gift or bequest, by purchase,
“ by prescription, or otherwise.”
As they stand, these rvords are wide enough to cover the gift bya father of his paraveni property to his heir-at-law. The follow-ing sections of Armour illustrate and expand the above-quoteddefinition.
1890.
October 17.
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1899. I have read those sections carefully, but cannot find any distinc-Octobirll. tion drawn between the donor’s paraveni and the donor’sacquired property.
This can scarcely be merely an inadvertent omission, foracquired property is sharply distinguished from paraveni propertyin most parts of the Kandyan Law, and Armour would not haveoverlooked it if the distinction existed in relation to the right oflat Mini. Then there 'is no distinction between gifts to heirs-at-law and gifts to strangers. Both equally fall within the defini-tion. Sections 91 and 92 expressly use such words as “ for gifts“ to children,” &c.
“If a parentmakes a donation to one of his children a
“ deed of giftin favour of the donor’s child.”
I therefore think that there is no distinction between the acquiredand paraveni property of the donor, and that whether thegift be made to the heir-at-law or to a stranger it is equallyacquired by the donee.
Moreover, in this particular case Kiri Banda was not the soleheir-at-law of his father, and would not therefore have inheritedthe whole of the lands in dispute from his father independentlyof the deed of gift.
Plaintiffs must have judgment, with Rs. 10 as damages, and costs.
Against this judgment, defendants appealed.
Bavoa, for first and second defendants, appellants.
Dornhorst, for plaintiffs, respondents.
Cur. adv. wit.
17th October, 1899.—Lawbie, J.
I understand the law to be that among Kandyans illegitimatechildren have no claim to land which their father inherited.
I regard Mr. Sawers as the best authority on Kandyan Law. Hewas Judicial Commissioner of Kandy from 17th August, 1821,until he retired on pension on 3rd July, 1827. In his notes(page 7) he says : “ The issue of the low-caste wife can inherit the“ lands acquired by their father whether by purchase or by gift“ from strangers, but cannot inherit any part of the property“ which has descended to him from his ancestors while a“ descendant of one of the pure blood of the ancestors, however“ remote, remains to inherit.”
Austin, p. 148, notes a decisipn dated 13th December, 1824,where Mr. Sawers and the chiefs held that the children of anirregular connection were entitled to inherit the father’s “ pur-chased ” property.
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Sir Charles Marshall’s notes on Kandyan Law are copied fromSowers, and the passage on p. 7 of Sowers is repeated on p. 336 ofMarshall.
The Niti Nighanduwa, which, in my opinion, was writtenbetween 1830 and 1840, p. 14, says: “ Children of a concubine“will not be entitled to maintenance from the ancestral estate,“ though in some instances his acquired property, movable and“ immovable, will become their property.”
Armour’s Grammar of the Kandyan Law (first published in theCeylon Miscellany in 1842) is mainly a translation of the NitiNighanduwa, but the paragraph (Armour, p. 135) headed “ Ille-gitimate issue ” is (so far as I have ascertained) not to be found inthe Niti Nighanduwa. I do not know where Armour took it from.It is printed in Perera’s Armour, p. 34, section 2, “ Duty of parentstowards illegitimate children.” There Armour limits the pro-perty to which such children can succeed to the father’s purchasedlands, or landed property which he had acquired by purchase.The italics which appear in Perera’s Armour, p. 34, are also in theoriginal Armour, p. 135.
Mr. Armour’s opinion has not the same weight as Mr. Sawers’,for he was not a Judge; he was appointed Interpreter to theJudicial Commissioner in October, 1819; afterwards he wasSecretary to the Judicial Commissioner’s Court, an office whichhe held when Mr. Sawers was the Commissioner.
In D. C., Kandy, 19,306 (20th November, 1847), reported inAustin, p. 108, Mr. Justice Temple assumed that a concubine of adeceased Kandyan would be entitled to “ acquired ” property ofthe father, and this was affirmed on 22nd September, 1856. Thecase is reported both by Austin, p. 147, and by Lorenz, vol. I., p. 189.
In 66,981, D. C., Kandy, I sustained the right of illegitimatechildren to acquired property. Here it is conceded that the ille-gitimate children have right to one land purchased by Kirihamyand gifted to Kiri Banda.
I am unable to draw a distinction between property inheritedby a father and gifted to his son, and property purchased by afather and gifted to his son. In the former case as in the latter Isay that the son “ acquired ” the property. In his careful andable judgment Mr. Macleod draws a distinction between “ acquired”and “ paraveni ” property. I do not understand that there issuch a distinction. “ Paraveni ” means lands held by a man inhis own right over which he has disposing power, and which onhis death intestate will pass to his heirs. What is opposed to“ paraveni ” is not “ acquired ” land, but land held in maruwena,that is, by a tenancy-at-will, or land held by a man in virtue of
1899.
October 17. ’Law bie, J.
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.1899.
October 17.
Lawrib, J,
his office, such as the endowments of a vihara by a priest or thelands held of old by Disawas and other high officials during theirtenure of' office.
The interpretation clause of Ordinance No. 4 of 1870 defines para-veni pangu to mean “ an allotment or share of land in a temple or“ nindagama village held in perpetuity,” and Sir John D’Oylysaid, “ Paraveni land is that which is the private property of“ an individual proprietor, land long possessed by his family, but“ so called also, if recently acquired in fee simple ” (see theglossary published on 23rd June, 1869, and also the appendix ofthe Niti Nighanduwa, p. 119).
In the present case I hold the lands were the acquired propertyof the deceased by gift from his father, He would have inheritedonly an undivided share of these lands; by gift he acquired thewhole.
A firmed.