KIRI PUNCHA v. KIRI UKKU AND OTHERS

029-SLLR-SLLR-1981-1-KIRI-PUNCHA-v.-KIRI-UKKU-AND-OTHERS.pdf


sc
Kiri Puncha v. Kiri Ukku and Others
341
KIRI PUNCHA
v.
KIRI UKKU AND OTHERS
SUPREME COURT
ISMAIL. J., WANASUNDERA. X,
AND WIMALARATNE. X,
S. C. APPEAL NO. 44/79
A. APPEAL NO. 736/75IF). CA<LA) 73/79(SC)
C. KURUNEGALA NO. 2353/LMARCH 2, 1981.
Declaration of Title — Succession —Paraveni property —Rights of illegitimate children— S. 10(3) & proviso to s. 10(1) of Kandyan Law Declaration and Amendment Ordi-nance.
When the deceased did not leave behind legitimate children or a widow or parents hisbrothers and sisters are entitled to succeed to his property. This was the principle ofsuccession prior to the enactment of the Kandyan Law Declaration and AmendmentOrdinance and the Ordinance has not affected any change in the position. The proviso. to s. 10(1) of the Ordinance is declaratory of the then existing law and has not effected achange in the law. The words 'child or descendant' in the proviso includes an illegiti-mate child or descendant.
The general principle of Kandyan Law is that an illegitimate child was not entitledto inherit the paraveni property so long as there were other heirs howsoever remoteand paraveni was always understood to mean property which a deceased person wasentitled to by succession to another.
Illegitimate children are entitled to succeed to their father's acquired property.It was also the position in the general Kandyan Law that an illegitimate child cannotinherit the property of his grandfather. If his father had predeceased the grandfather, hewould not be in a better position than if his father had survived and the property wouldstill descend as paraveni.
As the property which is the subject matter of the action constitutes paraveni itwould devolve on the deceased’s paternal heirs and not on his illegitimate children.
Appuhami v. Lappaya (1905)8 NLR 328 disapproved and not followed.
Cases referred to:
Sonnadara v. Dingiri Etana (1956) 57 NLR 333.
Rankin' v. Ukku (1907) 10 NLR 129.
Appuhami v. Lapaya (1905) 8 NLR 328.
Ukku v. Horathala (1948) 50 NLR 243.
Punchi Banda v. Nagasena (1963) 64 NLR 548.
Tatnmitta v. Palipane (1965) 70 NLR 520.
Dullewe v. Dullewe (1968) 71 NLR 289.
Su/atha Kumarihamy v. Dingiri Amma (1969) 72 NLR 409.
342
Sri Lanka Law Reports
(1981) 1 S. L R.
Mohideen v. Punchi Banda (1947) 48 NLP 318.
Setuwa v. Sirimalie (1947) 48 NLR 391.
Ausadahamy v. Tikiri Banda (1950) 52 NLR 314.
Wimalawathie v. Punchi Banda (1955) 57 NLR 73.
APPEAL from judgment of the Court of Appeal.
Everard Ratnayake with P. Samararatna for plaintiff-appellant
N. R. M. Daluwatte with K. S. Tillekeratne for 4th defendant-respondent.
Cur. adv. vuit.
April 1, 1981.
WANASUNDERA, J.
This is an action for declaration of title and ejectment filed by theplaintiff-appellant against the 1st to 4th defendants-respondents toan undivided 1 /4th share of a land called Kadjugahamulla Kum-bura. This 1/4th share was originally owned by one Kirimudi-yanse, who sold it in 1941 to Sala. Both the plaintiff and thedefendants trace their title to Sala. Sala died in 1946, leaving twochildren – a son, Sevranga and daughter, Sudhathi. Sudhathi wentout in diga during her father's lifetime and had a son Siriya who,by deed P3 of 1958 which recites title by way of maternal inheri-tance, transferred this undivided 1 /4th share to the plaintiff.Sala's son Sevranga, though he had married, died leaving behindonly four illegitimate children, the 1st to 4th defendants. Theabove facts have been established at the trial, and it is alsocommon ground that, as the parties are Kandyans, their rights ofsuccession are governed by the Kandyan Law, more particularlyby the Kandyan Law Declaration and Amendment Ordinance(Cap. 59).
The real issue in this case is whether or-not Sevranga's paternalrelations, from whom the plaintiff claims title, are entitled to suc-ceed to Sevranga's property in preference to Sevranga's illegiti-mate children, the 1st to 4th defendants. The learned DistrictJudge, apparently following earlier decisions, held that, as the pro-perty which is the subject matter of the action constitutes para-veni, it would devolve on Sevranga's paternal heirs and not on hisillegitimate children. The Court of Appeal, relying on the provisoto Sub-seclion (i) of section iu of tne Ordinance, disagreed withthis view and, in the face of numerous decisions which both ex-pressly and impliedly take a different view, has given judgment forthe defendants.
Mr. Ratnayake for the plaintiff-appellant submitted that thegeneral principle of Kandyan Law is that, in a situation such as
sc
Kiri Puncha v. Kiri Ukku and Others
343
this, when the deceased did not leave behind legitimate children ora widow or parents, his brothers and sisters are entitled to succeedto his property. This was the principle of succession prior to theenactment of the Kandyan Law Declaration and AmendmentOrdinance (Cap. 59) and the Ordinance has not affected anychange in the position. He has submitted that it is settled law thatthe proviso to section 10(1), on which the defendants rely, is only 'a restatement of the general Kandyan Law that existed prior tothe enactment and that in the case of succession by ancestors orcollaterals of the deceased, like in this case, a special rule conver-ting or transmuting paraveni property into acquired propertycomes into play to make as equitable as possible the distributionof the deceased's property among heirs on both the paternal andmaternal sides. If however the normal rule regarding the devolu-tion of paraveni were to apply, it would result in such paraveniproperty devolving entirely on the heirs on the paternal side.
Although the overriding principle in Kandyan Law is thatlands must revert to the source from which it came, KandyanLaw found it possible in refining that principle to draw a valid dis-tinction between real ancestral property forming part of the' family estate and paraveni property which was recently acquiredby the deceased's father. There is no question that the formermust devolve on the heirs on the paternal side, but the questionwas asked why the latter too should be dealt with in the sameway. Hence the principle that in such situations recently acquiredparaveni is deemed to be acquired property to enable maternalheirs also to make a claim. Mr. Ratnayake has therefore submittedthat the proviso to sub-section (1) of section 10 must be interpre-ted in the light of the above background and can have no widerapplication than to that peculiar situation. His submissions, I maysay, do not lack substantial support from the case law and thewriters of Kandyan Law.
Hayley,. in his Laws and Customs of the Sinhalese, at page 221,has declared the prevailing law on this topic in the followingwords —
"it would.seem that the term 'acquired property' has
a relative signification, varying in accordance with the classes ofheirs who claim a share; for whereas any property descendedfrom a man's father is inherited property for the purpose of.distribution amongst his widow and children, when the contestis between maternal uncles and paternal uncles, the former areentitled to the deceased's acquired property, which in that caseincludes property newly acquired by the deceased's father
344
Sri Lanka Law Reports
(1981) 1 S. L. R.
which has descended to the deceased (Niti. 103; P.A. 46-7).This modification is a logical one;for when such heirs as thefather's brothers succeed to part of the estate, on the groundnot so much of true succession, but rather by virtue of the prin-ciple that lands must revert to the source whence they came,there is no reason for assigning to them an interest in propertywhich was acquired separately by their deceased brother andnever formed part of the family lands of themselves or theirfather."
In Sonnadara /. Dingin' Etana (57 N.L.R. 333)^) Gratiaen, J.,held that "the proviso to section 10(1) of the Ordinance is in truthdeclaratory of the earlier law."
It would thus appear that this principle of conversion of para-veni to acquired property has limited application and was neverintended to apply to a case such as the present, which involves thedevolution of such property to an illegitimate child. Where an ille-gitimate child is concerned, the general principle of Kandyan Lawis that an illegitimate child was not entitled to inherit theparaveniproperty so long as there were other heirs howsoever remote, andparaveni was always understood to mean property which a decea-sed person was entitled to by succession to another.
Illegitimate children are however entitled to succeed to theirfather's acquired property, and Rankiriv. Ukku (10 N.L.R. 129)(2)settled any doubt that may have existed on this matter. Whenthe Court of Appeal relied on this decision, it probably overloo-ked the fact that the acquired property in this case was acquiredproperty in the normal and usual sense and not in the extendedsense contained in the proviso.
It was also the position in the general Kandyan Law that anillegitimate child cannot inherit the property of his grandfather.Even if his father had predeceased the grandfather, he would notbe in a better position than if his father had survived and the pro-perty would still descend as paraveni. Hayley, page 391.
Armour, referring especially to such a case stated —
"Therefore in case that man died before his parents, hischildren by that woman will have no right to any share of hisparent's estate, the said children will be entitled to inheritonly such property as their father had himself acquired bypurchase or other means of acquest (P.S.8)."
sc
Kiri Puncha v. Kiri Ukku and Others
345
The case of Appuhami v. Lapaya (8 N.L.R. 328)^ cited bythe Court of Appeal, constitutes a departure from the aboveprinciples. In this case, dealing with the rights of an illegitimatechild of the deceased person called Rattarana who had predeceas-ed his own father, Wendt, J. sitting alone, said —
"He succeeds directly to his grandfather; the property doesnot come 'through' his father Rattarana in the sense that thefather ever had any interest in it, and there is therefore noreason for the argument that when it reached Wattuwa it wasRattarana'sparaveni property".
, This view is clearly not in accordance with the principles ofKandyan Law. Hay ley at page 392 of his book shows by referenceto the passage from Armour and other institutional writers onKandyan Law that Wendt, J. had overlooked certain basic featuresof the Kandyan Law in coming to this conclusion. Hayley obser-ves —
"If his Lordship's attention had been drawn to it, hisdecision would perhaps have been different. In allowing theappeal, Wendt, J. relies mainly on the proposition that theproperty descended to the grandchild directly in its character ofacquired property. Such a view, however, disregards the generalprinciple of representation on which the rights of grandchildrenare based, and also fails to take account of the fact that illegi-timacy itself usually arose from the refusal of the grandparentsto recognize the marriage, for which very reason the issue ofsuch marriage was debarred from inheriting any property des-cending from them."
It may be added that Wendt, J. had not resorted to the principleof the conversion of paraveni into acquired property, which heprobably knew did not apply to the case, but sought to create newlaw on the fiction of a direct succession of the grandchild to theacquired property of the grandfather. Such a basis is totally uh-known to the Kandyan Law and the solution he has offered standsout as a novelty quite out of character with the general principlesof Kandyan Law.
The Court of Appeal was also of the view that the proviso tosection 10 embodies the recommendations of the Kandyan LawCommission which are contained in paragraphs 125 and 133 oftheir Report, and those paragraphs have recommended a change inthe law. It is a cardinal principle of interpretation that in constru-
346.
Sri Lanka Law Reports
(1981) 1 S. L. R.
ing the words of a statute we must look to the statute itself for ananswer. Courts however have thought it permissible when the wor-ding of a statute was ambiguous to ascertain the previous stateof the law and the reasons which led to the enactment of thelegislation and have for this purpose looked at Reports of Commi-ssions which led to the legislation. Vide Ukku v. Horathala (50NLR 243)(4), Punchi Banda v. Naqasena (64 NLR 548)'5),Thammitta v. Palipane (70 NLR 520)1°) Dull ewe v. Dullewa (71NLR 289)(7) and Sujatha Kumarihamy v. Dingin' Amma (72 NLR409) <8>.
I am at a loss to understand how the. Court of Appeal couldhave arrived at that conclusion when paragraphs 125, 130 and 133have set out the intention of the Commissioners in the plainestterms. If they left any room for doubt, the express reference inthese paragraphs to the passage from Hayley, which l have quotedearlier, would have made that intention doubly certain that theCommission wished to have the law restated in the same terms asit was then existing and did not venture to advocate a change ofthe law. Accordingly our courts have hitherto found no difficultyin holding that the proviso to section 10(1) was declaratory of thethen existing law and has not effected a change in the law.
So much for the background to the legislation. Let me now turnto the actual task of interpreting the provisions of section 10 ofthe Ordinance. Section 10 seeks to define the expression 'paraveniproperty.' Section 10 sub-section (1) contains the followingproviso:—
"Provided, however, that if the deceased shall not have left,him surviving any child or descendant, property which had beenthe -acquired property of the person from whom it passed to thedeceased shall be deemed acquired property of the deceased."
The plaintiffs case is that the words "any child or descendant"in the proviso must be construed to include both a legitimate andillegitimate child or descendant, while it has been contended forthe defendants that that expression takes in only the legitimatechildren and not the illegitimate children.
In Mohideen v. Punchi Banda (48 N.L.R. 318)(9), the thenSupreme Court was called upon to decide this same question,namely whether or not the words "child or descendant" in theproviso to section 10(1) included an illegitimate child or descen-dant. Keuneman, A. C. J., in a careful judgment after scrutinisingthe provisions of sections 10, 11, 13, 14, 15, 16, 17 and 18, and
sc
Kiri Puncha v. Kiri Ukku and Others
347
Chapter V (and not merely sections 16 and 18, as the Court ofAppeal seems to suggest), held that "where the draftsman of theOrdinance used the word 'child' or 'descendant' he meant a widerclass than the legitimate issue, and that these words cover boththe legitimate and -illegitimate issue."
In Setuwa v. Sirimalie (48 N.L.R. 391)^0)(wijeyewardene,S.P.J., added his authority having independently arrived at thesame conclusion. Wijeyewardene, S.P.J., too considered thewording of sections 8, 11, 15, 16, 18, 21 and 23 and subjectedthem to a detailed analysis. He has rightly linked the proviso tosection 10(1) with the special situation relating to the conversionof paraveni to acquired property mentioned by Hayley and statedthat the pr<A/iso appears to have been inserted to give effect to the"relative signification" of the term 'acquired property' under theKandyan Law referred to in Hayley's Laws and Customs of theSinhalese, page 221, which he has quoted with approval.
It may be added that in both these cases the Judges hadapproached the issue with due regard to the proper canons ofstatutory interpretation and was mindful of the rule that areference to children or descendant in a law or-instrument should-prima facie have the meaning of legitimate children or descendantunless a contrary intention is expressed or is deducible bynecessary inference.
These two decisions have been accepted as correctly stating thelaw and had been followed by the courts of this country fornearly a third of a century. Vide also Ukku v. Horathaia (supra).The Court of Appeal has not succeeded in pointing out any erroror fault in the method of approach or reasoning in the judgmentsof these two Judges and has only been able to make someobservations on section 18 about which there can hardly be adifference of views.
In fairness to the Court of Appeal I have taken the liberty of re-considering those two judgments and after a careful considerationof the relevant provisions I find that there is little I could usefullyadd to the cogent reasoning and conclusions of these two eminentJudges. These decisions have also indicated that some of the othersections of the Ordinance would be unworkable if the word 'child'in the proviso to section 10(1) is given the meaning contended forby the defendants.
The Court of Appeal would not have misdirected itself had itunderstood the true import of section 10.. This section is a defini-
348
Sri Lanka Law Reports
(1981) 1S. L. R.
tion section and does not purport to set out a devolution of titleas, for example, section 15 which deals with the rights of illegiti-mate children. It would be noted that in section 15 the draftsmanhas been careful to describe the word 'child' as 'illegitimate,'while on the other hand there is the absence of such an adjectivein the proviso to section 10(1). If the proviso also had the word'legitimate' or 'illegitimate,' then there may have been some justifi-cation for connecting up the proviso with the provisions of sec-tion 15 even in some remote way but as presently worded there isno room for it to function in any other way except as a definingsection.
Another matter worthy of attention is that in defining the twoexpressions 'paraveni property' and 'acquired property,' the Ordi-nance proceeds in the first instance to define the term 'paraveni'in a detailed manner and then states in negative terms that allproperty which is not paraveni is deemed to be acquired property— section 10(3). As against this, the proviso to section 10(1) andsection 10(2) appear to deal with certain intermediate situationswhich are in the nature of exceptions to the general division refe-rred to earlier. Prima facie then the primary meaning of acquiredproperty as contained in sub-section (3) of section 10 should beassigned to that expression whenever it occurs in the body ofOrdinance. As Nagalirtgam, J. pointed out in Ausadahamy v. TikiriBanda (52 N.L.R. 314)^ ■), the term 'acquired property' in theproviso to section 10(1) cannot have the same meaning as thatterm has in sub-section (3) of section 10, and the expression'acquired property' in the proviso to sub-section (1) of the Section10 must be limited to the special situation which the Legislaturehad in mind. What then was this special situation ? As shownearlier, this is the situation referred to by Hayley at page 221 ofhis book and which was cited by the Kandyan Law Commission.There could be little doubt as to the connection between the twoand the meaning that should be given to the proviso.
The judgment of the Court of Appeal leaves one with the impre-ssion that it proceeded under the misconception that the whole ofthe Kandyan Law is to be found within the four corners of thisOrdinance and accordingly disposed of the issue in the case in anarrow and technical manner. The decisions of our courts show
Llldi limy ildve always apprOaChcu SLiCh
_j:xx~..o.i.. j :«
iiaitci d ui i ici ci my anu it
is relevant to have regard to the accepted principles of general.Kandyan Law in matters as this — Wimalawathie v. Punchi Banda(57 N.L.R. 73)<12). Such an approach was absolutely necessaryin the present case, for there are ample grounds to show that theproviso to sub-section (1) of section 10 was merely declaratory ofthe then existing law.
sc
Kiri Puncha v. Kiri Ukku and Others
349
For these reasons I am of the view that this appeal must suc-ceed. The judgment of the District Court is restored. The Plaintiff-appellant would be entitled to costs, both here and in the Court ofAppeal.
ISMAIL, J. – I agree.
Wl MALAR ATIME, J. – I agree.
Appeal allowed.