116-NLR-NLR-V-17-KIRIYA-v.-UKKU-et-al.pdf
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Present: Wood Benton A.C.J. and De Sampayo A.J.
KTRIYA v. UKKTJ et ol.
234—D. C. Kurunegala, 4,737.
Kandyan deed of giftr—" Descendants ” mean legitimate descendants.
A Kandyan gifted to his three sons, K, S, and H, certain lands inequal shares. The deed of gift provided that should S and H leaveno descendants,, then their shares Bhould devolve on K. 8 died with-out leaving any descendants, and H left only illegitimate ohildren.
Held, that the illegitimate children of H had no right to his shareunder the deed.
Db Sampayo A.J .—I am aware of no reason for not applyingto a Kandyan deed of gift the general rule of construction obtainingunder the English and Boman-Dutch' law that such an exprestjonas " children, ” “iisBue, ” or " descendants " ptimA fade meanslawful children.
T HE facts appear from the judgment.
A. St. V. Jayewardene, for the appellants.
No appearance for the respondents.
Cur. adv. vult.
July 29, 1914. Db Sampayo A.J.—
In construing the deed of gift of 1872 I go upon the translationfiled by the plaintiff, which, as the District Judge says, moreaccurately brings out the sense of the document than that filed bythe defendants. By the deed Sitta Dureya gifted certain lands inequal shares to "his three sons, Kiriya (the plaintiff), Setuwa* andHapuwa. He thereby provided that, as regards the one-third sharegiven to the plaintiff, the same should be possessed by him and hischildren, grandchildren, and succeeding generations, and that, asregards the two third-shares given to Setuwa and Hapuwa, theyshould only enjoy the income derived from those shares, but shouldnot sell or mortgage the same, and that if they died leaving descen-dants, such descendants should succeed to those shares, but if they leftno descendants, then those shares should devolve 'on the remainingson, the plaintiff. I may mention that the expression in the Sin-halese original, which is here reproduced as descendants, is du puthadi pewathima. Setuwa died without leaving any descendants,but Hapuwa left the defendants, who are his illegitimate children.The question, then, is whether the defendants became entitled toHapuwa's one-third share, or whether it devolved on the plaintiff.
I am not aware of any reason for not applying to a Kandyan deed ofgift the general rule of construction obtaining under the English andBoman-Dutch law that such an expression as “ children,” “ issue,”
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1914. or <( descendants ” prima facie means lawful children, issue, ori>b sImpayo descendants. According to Voet (36, 1, 13), “children'* do not
AJ.include natural children, unless the surrounding circumstances pointJTiriya v, a different conclusion. The English rule on this point, whichXJhku appears to be even more strict, is thus summarized in the Encyclo-pedia of Law8f vol. XIV., p. 704 : “ In a will or deed illegitimatechildren are not included in the word ‘ children,' unless, when thesurrounding facts are ascertained and applied, som.e repugnancy orinconsistency, and not merely some violation of a moral obligationor of a probable intention, would result from their exclusion," Now,is there anything in this case justifying a departure from the generalrule? It is argued that as, under the Kandyan law, illegitimatechildren are heirs of a man equally with his legitimate children,Sitta Dureya must be taken to have contemplated as objects of hisbeneficence even the illegitimate children of his sons Setuwa andHapuwa. I do not think that this argument is sound. In thefirst place, the deed nowhere refers to the “ heirs " of Setuwa andHapuwa, and the present question is not as to who are Hapuwa'sintestate heirs, but as to who are to be held entitled to Hapuwa'sone-third share by virtue of the gift. In the next place, under theKandyan law, illegitimate children are heirs to a limited extent, forthey succeed only to the acquired property of the deceased; anduntil the decision in Rankin v. Ukku 1 judicial opinion was thatlegitimate children, the widow, and certain collaterals would excludethe illegitimate children even as regards the acquired property.Moreover, I think there is some indication in the deed itself thatSitta Dureya had regard to lawful and honourable descent. He dis-tinguished the donees by calling them “my own begotten children,"and he clearly expressed his intention that the property gifted tothem should remain in their families. It seems to me inconsistentwith the sentiments pervading this deed to hold that the grantorcontemplated any illegitimate persons participating in the settlementof his property upon his sons and their families. Lastly, at the dateof. the gift, as the deed itself stated, Setuwa and Hapuwa wereminors, and the defendants themselves, who were not then in'existence, could not have been in the mind of Sitta Dureya.
In view of these considerations, I do not think that the circum-stances surrounding the gift can be said to lead to the conclusionthat Sitta Dureya intended to benefit any but his lawful posterity,nor would any repugnancy or inconsistency arise if the illegitimatechildren of Hapuwa 'are excluded from the provisions of the deedof gift. . I think, therefore, this appeal fails, and should be dismissedwith costs, but without prejudice to the defendants' right, whichwas reserved to them by the District Judge,- of maintaining anaction on the basis of the alleged revocation of the deed of gift inquestion by Sitta Dureya.
1 10 N. L. R. 12.
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Wood Benton A.C.J.—
This case turns on the construction of a deed of gift. SittaDureya, the admitted owner and possessor of the land in suit,gifted them by deed No. 4,008 dated September 14, 1872, to hissons, Kiriya (the plaintiff-respondent), Hapuwa, and Setuwa. Asthe learned District Judge has pointed out, much depends on .themeaning of a condition embodied in this deed of gift. I adopt forthe purposes of this judgment the translation accepted by thelearned District Judge. It is in these words:—
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Utjte
“ Should Setuwa and Hapuwa, having possessed the shareallotted to them during .their lifetime, die leaving childrenor their descendants, then they shall be at liberty topossess it in any manner they like; but if they dieleaving neither children nor descendants of suoh, thenthe two shares given to them shall also go to Kiriyaaforesaid or his heirs or executors.”
Setuwa died without issue. The case for the plaintiff was thatHapuwa also died without legitimate issue, but that he had left thesecond, third, fourth, and fifth defendants by a woman named Ukku,the first defendant, who are the principal appellants in the presentcase. Under the deed of gift of September 14, 1872, Hapuwa was- entitled to a one-third share of the property in suit. That sharewill pass to the defendants if, being illegitimate children, they areentitled to come in under the deed of gift. Various issues wereframed, but the learned District Judge has dealt with only thefirst and the second. These issues are as follows: — 1 2
(1)Do the terms of deed No. 4,008 of September 14, 1872, allow
illegitimate children to succeed to the. one-third share-gifted to Hapuwa ?
(2)If not, to what damages is the plaintiff entitled ?
The District Judge has answered both of these issues in the nega-tive. The defendants appeal. The main ground argued before usin regard to the firs.t issue was that as the property in question wasacquired property, even illegitimate children have a right of succes-sion to it under the Kandyan law. That such a right of successionexists is not in dispute. But it does not appear to me to have anyreal bearing on the point with which we have here to deal. . Hapuwa’&illegitimate children must take the property, if they can take it atall, under the above-cited condition in the deed of gift. The questionis whether Sitta Dureya, when he gifted his prpoperty to his threesons, intended that the illegitimate children of any of them shouldbe provided for. I agree with the learned District Judge that thewhole structure of the deed shows that he did not. His object wasto keep the property in the family.
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Kiriya v.<7**w
A subsidiary point was brought to our notice. The fobrth andfifth issues raised respectively the questions whether deed No. 4,008had been revoked by Sitta Dureya, and if so, to what extent. Nodeed of revocation was produced at the trial. But the defendants’counsel informed us at the argument of the appeal that he hadreceived a telegram to the effect that a deed of revocation had nowbeen found. The matter .appears to me to be of no importance forour present purpose. The record shows that it was agreed betweenthe parties at the trial that any rights arising from such a deed, if itexisted, should be ** reserved.” The defendants’ counsel suggestedthat this admission meant that such rights should be ” reserved ” inthe sense that they could be asserted in the present action. I do notthink that point i6 tenable.. For the record itself shows that, whenthe admission to which I have just referred" was made, issues 4 and$ were ” elided.” Nothing in the present judgment will precludethe defendants from asserting the rights above mentioned inindependent proceedings should a necessity for doing so arise.
I would dismiss the appeal with costs in the terms proposed bymy brother De Sampayo.
Appeal dismissed.
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