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property reverts to the source whence it came is merely an exceptionto the natural and general principle of succession, and must there-fore be strictly applied. Thus on principle and authority the rightof the binna father to succeed must prevail.
Much 23, 1929. Lyall Grant J.—
This appeal from the District Court of Kandy raises a questionwhether certain lands are to he considered paraveni lands.
The land originally belonged to the maternal ancestors of theperson whose inheritance, is now in dispute. They by a deed ofAugust 81, 1898, donated them to two grandchildren, born oftheir binna married daughter, in equal shares.
We are concerned with the devolution of one of these shares.The grandchild Kiri Bindu, daughter of Sallelu, died leaving a child,also called Sallelu, who inherited this share. This child died andher share passed to her aunt Sirimalee. Sirimalee has now died andthe share is claimed on the one hand by her father, the appellant,and on the other by her uterine half-brother, the respondent.Sallelu, the mother of Sirimalee, predeceased her.
It is agreed that the question to be decided is whether in thehands of Sirimalee the land was ancestral (paraveni) or acquired.
The learned District Judge says that this property is the- ancestralproperty of Sirimalee and her mother Sallelu. But it is importantto observe that the land never was the property of Sallelu, themother. Accordingly the passage in- Sawer to which the learnedDistrict Judge refers does not support the contention that thefather cannot succeed to the property.
The learned District Judge thinks that as the property originallycame from the parents of the deceased’s mother, it had paravenicharacter in the hands of the deceased and that the mere accidentthat it did not come by descent through the mother cannot divestit of this character.
On this question the case of Dingiri Banda v. Maduma Banda 1is. directly in point. There Ukkurala and, Mutumenika had adaughter, Kirimenika, who was married in binna to plaintiff. Afterthe daughter’s death TJkkurala and Mutumenika gifted the landto a grandson Tikiri Banda, who died leaving a son Ban Banda,who also died. After Ban Banda’s death, Mutumenika—Ukkuralahaving died—purported to gift the land to her brothers. It washeld that in the hands of Tikiri Banda the property was acquiredand not paraveni, and that on Ban-Banda’s death it devolved onhis grandfather, the plaintiff, and did not revert to Mutumenika.De Sampayo J. there distinguished the case of Ranhamy v.Pinghamy.
*1S.C. C. 9.
Lebbe «.Banda
1 17 N. L. B. 201.
LyallGrant jr.
Lebbe v.Banda
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In Vkkuwa v. Banduwa 1 it was again held that property giftedto a person .even by an ancestor is acquired and not paraveniproperty.
This rule seems in accordance with the principle laid down bySawer. The present case is even stronger as the property does no.tcome through the mother Sallelu, who never had any interest.
The document D 2 to which the learned District Judge refersas showing that Rankira, the widower of Sallelu, acknowledgedrespondent’s title clearly refers to lands which belonged to hisdeceased wife and cannot therefore apply to the land in dispute.
The appeal is allowed, and judgment will be entered for theplaintiff with costs. The plaintiff will also have the costs of thisappeal.
Driebekg J.—
The question in this appeal is as to the succession to the intestateestate of Sirimalie, who died unmarried and without issue, possessedof an undivided half share of two lands.
The entire lands were owned by Hadaya Horanakaraya, who hada daughter, Sallelu, whom I-shall refer to as the elder. Sallelu theelder had by her first husband Pinna one child, Kiri Sanda, thedefendant-respondent. By her second husband Rankira, to whomshe was married in binna, she had two children, Kiri Bindu andSirimalie.
By a deed of August 31, 1898 (P 1), Hadaya Horanakarayagifted these two lands to his grandchildren, Kiri Sanda, the respond-ent, and Kiri Bindu. Kiri Bindu, who was entitled to a halfshare under this deed of gift, died leaving an only child, Sallelu,whom I shall refer to as the younger, who succeeded to this halfshare by inheritance. Sallelu the younger died intestate andwithout issue, and it is common ground that her half share passedby inheritance to her aunt Sirimalie, the succession to whose estateis now disputed.
The rival claimants are the appellant and the respondent. Theappellant holds a transfer of March 24, 1926 (P 2 A), from Rankiraand contends that Rankira, the binna husband of Sallelu the elder,succeeded to what he says is the acquired property of his childSirimalie.
For the respondent Kiri Sanda it is contended that as uterinehalf brother of Sirimalie he must be preferred to her binna marriedfather.
If the half share of these lands is to be regarded as the acquiredproperty of Sirimalie and not as her paraveni property it is clearthat her father, her surviving parent, would have succeeded to the
*19 N. L. B. 63.
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inheritance and not the respondent. Express authority for this *929.will be found in the case of Ukkuhamy v. Bala Ettana,1 * where the dbjsbebg J.claim of the mother, the father being dead, to the acquired property”
of her child was upheld against that of the child’s full brothers and Bandasisters.
Further, direct authority will be found in the case of Ranhoti v..
Bilinda,* where the conflict between Sawer and Armour on thispoint is considered. The only exception to this rule which hasbeen recognized by our Courts is where the property is acquired bya child by gift from a binna married mother. In such a case,though it has the quality of acquired property, if the child diedintestate or without issue it will pass to the maternal grandmother,the 'mother being dead, in preference to .the binna married father(Ran Menika v. Mudaliham-y 3).
There only remains for consideration therefore the questionwhether these lands were the acquired or the paraveni propertyof Sirimalie. There is no express authority, so far as I am aware,whether land inherited from a collateral or a descendant is acquiredor paraveni property, but our Courts have in questions of inherit-ance always regarded paraveni property as meaning ancestralproperty which has descended by inheritance, property derived byany other source of title or by any other means being regardedas acquired property. Authority for this will be found in the caseof Dingiri Banda v. Maduma Banda* in which the earlier cases arereferred to, and also in the case of Ran Menika v. Mudalihamy(supra).
The learned District Judge based his judgment on the principleof inheritance in Kandyan law of property reverting to the sourcefrom which it was derived, and he regarded the property as theancestral property of Sirimalie and her mother Sallelu the elder,but this principle does not apply to acquired property (de Sampayo
J.in Dingiri Banda v. Maduma Banda (supra) on page 210). Itshould also be noted that Sallelu the elder was never the ownerof this property.
The judgment in favour of the respondent is also based on thefinding that Bankira acknowledged the title of the respondentby the document D 2 of September 20, 1918, in which he agreednot to dispute the title of the respondent to “ possession of thelands belonging to mv deceased wife Epitahenagedera Sallelu andwhich lands were possessed by her children Kiri Bindu andSirimalie after her death, who also have died.”
Bankira was allowed one pela out of the field of two pelas for hisuse and maintenance. This arrangement cannot, bar the appellant,who claims from Bankira, from asserting title. The surrender by
1 {1908) 11 N. L. R. 226.
* {1909) 12 N. L. R. 111.
* {1913) 16 N. L. R. 131.4 {1914) 17 N. L. R. 201.
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1929. Rankira by D 2 was of his claims to lands which belonged to hisTtoranwiMi j. wife Sallelu the elder, and this half share was not at any time her property.
The. arrangement was begun within ten years of the filing ofthis action, and the claim of the appellant cannot be barred byprescription.
The appeal is allowed, and judgment will be entered for theappellant as claimed. The respondent will 'pay to the appellantthe costs of this appeal.
Appeal allowed.