053-NLR-NLR-V-19-KIRI-MENIKA-v.-RAN-MENIKA.pdf
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Present: Wood Benton C.J. and De Sampayo J.
KIRI MENIKA v. RAN MENIKA.
36—D. C. (Inty.y Kurunegala, 1,296.
Kandyanlate—Persondyingchildless—Acquiredproperty—Intestate
succession—Does a niece exclude the widow l—Buie when widow isewessa cousin of husband—-Buie as to movable property.
Under the Kandyan law, where a person dies childless, the widowis entitled to the movable property, except heirlooms.
As regards landed property, the general rule is that the widowis excluded by the deceased’s parents and brothers and sisters andtheir issue, hut she has the same life interest in her husband’sacquired and hereditary property as the widow of a husband whodied leaving issue. If the barren widow be the husband’s paternalaunt’s daughter or his maternal uncle’s daughter, she inheritsnext to full brothers the acquired lands.
rp HE facts are set out in the judgment.
A. St. V. J aye wardens, for appellant.
Bawa, K. C., for respondent.
Cur. adv. vult.
May 23, 1916. De Sampayo J.—
This appeal raises an interesting point of Kandyan law underthe following circumstances. Ukku Banda died intestate andissueless, and letters of administration to his estate have beengranted to his widow Kiri Menika, the respondent to this appeal.The intestate had a sister, Dingiri Menika, who predeceased him,leaving one child, Ban Menika, the appellant. The appellantapplied to be declared the sole heir of the intestate and entitled toall his property, subject only to a life interest in the widow in theacquired property. At the inquiry, however, it was admitted thatthe estate consisted of ■ acquired property only, and the inventoryshow's that it comprises both immovable and movable property.
The question is whether under the Kandyan law a niece excludesthe widow of a person who dies childless. The authorities areagreed that the widow is entitled to the movable property, exceptheirlooms (Sowers 16 and 22: see also Armour 22 and Marshall’aJudgments 346 and 347). I think, therefore, that the appellant’sclaim cannot be sustained, so far as the movable propertyis concerned. As regards landed property, the general ruleappears to be that the w'idow of a person dying childless isexcluded by the deceased’s parents and brothers and sisters and
1916.
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1916.their issue,who are sometimes described as "near relations ”
Da Sampayo (Armour 22,23, and 26), but she has “ the samelife interest, and
J■that- only in her husband's landed property, whether hereditary
Kiri Menika or acquired, as the widow of a* husband who died leaving issue"v-(Sawera 1;Marshall’ 8 Judgments 326; Modder324). But the
Ban Mcmka j£an(jyan jaw appears to draw a distinction and * to ‘ regard with
greater favour a widdw who is also the husband’s ewessa cousin,
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that is to say, a paternal aunt’s daughter or maternal uncle’sdaughter. Sawers 23 lays down that " if the barren widow bethe husband's paternal aunt’s daughter or his maternal uncle’sdaughter, she inherits next to full brothers the acquired lands."Now, the respondent in this case is the intestate Ukku Banda’sewessa cousin, being the daughter of his paternal aunt UkkuMenika, and Ukkm Banda not having left parents or brotheraand sisters, his widow, the respondent, would, under the rule laiddown by Sawers, inherit his acquired landed property, that is to say.in the circumstances of the case, his entire immovable estate, to theexclusion of the appellant, who is only the daughter of a deceasedsister. But the authority of Sawers on this point is disputed byMr. Jayewardene for the appellant, who depends on Armour, andwe have been referred to Tittewelle Sangi v. Tittewelle Mohotta1as to the relative weight of the opinions of Sawers and Aim our..
I am not disposed to revive that controversy, and would be preparedto follow Armour if there were any passage there directly opposed toSawers. But I can find no such passage. Armour omits to discussthe specific case of the right of a widow, who is also the ewessa cousinof the husband, to the acquired lands where there is no relativenearer than a brother or sister. But at page 26 he does discussand allow such a widow’s right to lands inherited from his father or‘ mother in preference to his other cousins, and at page 17 other casesare mentioned which show the preferential position generally of' anewessa widow under the Kandyan law. On the other hand, Marshall324 quotes the above passage of Sawers without any comment,and presumably with approval, as stating an accepted principle ofthe Kandyan law. It is well known that a marriage betweenewessa cousins is the most favoured form of marriage under that-law. Sawers, as quoted by Marshall 343, says:" Their custom,
makes their intermarriages the most approved connections. Theson of the eldest brother has a sort of vested right to have for hiswife his cousin, the eldest daughter of his father’s eldest sister,and the connections of the most respectable families often run inthis way from generation to generation. " In this state of theauthorities, I do not see any reason derivable from the text booksof the Kandyan law or from the principles of natural justice whythe rule laid down by Sawers on the. point in question should notbe accepted as correct.
(1903) 6 N. L. R. 20.
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I accordingly think that the learned District Judge, who himselfhas large experience in' the administration of .the Kandyan law, wasjtfght in rejecting the application of the appellant. I would dismissthe appeal with costs.
Wood Benton C.J.—I agree.-
Appeal dismissed.
1916.
Da SaxTatoJ.
Kiri MenSkav.
Ran Menika