103-NLR-NLR-V-64-M.-SUBANCHINA-Appellants-and-M.-K.-JAMES-APPU-and-others-Respondents.pdf
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T. S. FERNANDO, J.—Subanchina v. James Appu
1961Present : T. S, Fernando, J., and De Silva, J.
M.SUBANCHINA, Appellant, and M. K. JAMES APPU and others,
Respondents
S. G. 135 (Inty.) of 1959—D. G. Ratnapura (Testy.), 1351
Kandyan law—Adoption—Difference in caste between the adopter and the personadopted—Acquired properly—Inheritance when adopter dies—Kandyan LawDeclaration and Amendment Ordinance, s. 7.
Under the Kandyan law, persona of one caste adopted by a Kandyanof another caste who dies intestate and issueless can inherit the acquiredproperty of the latter.
Appear from a judgment of the District Court, Ratnapura.
H. W. Jayevoardene, Q.G., with A. C. Gooneratne, N. R. M. Daluwatteand S. S. Basnayake, for the petitioner-appellant.
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E. B. Wikramanayake, Q.G., with E. R: S. R. Coomaraswamy, for the5th to 7th respondents.
Cur. adv. vult.
December 21,1961. T. S. Fernando, J.—
The question that arises for decision on this appeal is-whether personsof one caste adopted by a Kandyan of another caste who dies intestateand issueless can inherit the acquired property of the latter.,}
One Maddumage Simion Singho, a person subject to the Kandyan lawdied intestate on 10th July 1955, and the petitioner who, it is admitted,had lived with the deceased as his mistress for a number of years wasgranted letters of administration in respect of his estate. In the courseof the judicial settlement of that estate a contest arose as to who hisintestate heirs were. On one side were the 1st, 2nd and 3rd respondents,three persons who alleged they had been adopted by him and by hismistress Subanchina (the petitioner), while on the other side were rangedthe 5th, 6th and 7th respondents who are the illegitimate sons of oneLamaetana, a sister of the deceased. The District Judge, after a keenlyfought contest in the District Court, reached the conclusion that the’claims of the illegitimate children of the sister of the deceased had to'prevail under the Kandyan law over the claims of persons who had in factbeen adopted by the deceased as his children but were not of the samecaste as himself. The learned judge observes that he reached this conclu-sion regretfully as he was satisfied that there was overwhelming evidence^both oral and documentary, to show that it was the intention of. thedeceased to adopt the 1st, 2nd and 3rd respondents as his children for the
T. S. FERNANDO, J.—Subanchina v. James Appu
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purpose of inheriting his property. The administratrix has appealedagainst the decision given in the District Court and, in support of theappeal, three points were raised by Mr. Jaye war dene :—
( 1) That distinctions of caste can no longer be recognised by the courtsof this country ;
That even if it is a requirement of a valid adoption that the adopted
and the adopter shall be of the same or equal caste, the conceptof caste is now so vague and indefinite that the courts shouldregard it as no longer a condition of a valid adoption ;
That in any event a difference in caste between that of the adopter
and the adopted affects only the succession to the inheritedproperty of the adopter and hot to his acquired property.
It was not disputed in the court below that the 1st and 2nd respondentswho were born in 1931 and 1933 respectively had been brought up in thehousehold of the deceased and*of Subanchina from their very tender yearsand certainly from a date anterior to 1st January 1939, while the 3rdrespondent who had been brought up similarly was bom only in 1950. Bysection 7 of the Kandyan Law Declaration and Amendment Ordinance,No. 39 of 1938, which came into force on 1st January 1939, no adoptionis valid in law to create any right in the adopted person unlessthe adoption is evidenced by an instrument in writing and signed byboth the adopter and the adopted in the presence either of specifiedofficers or a notary and witnesses. In the absence of such an instrumentin writing, Mr. Jayewardene was compelled to admit that the 3rd respon-dent who is still a minor had no claim to any of the property that is thesubject of the present contest.
In regard to the claim of the 1st and 2nd respondents who are thechildren of one Menchi, a sister of Subanchina, the mistress of the deceasedand the administratrix of his estate, it is necessary to advert to theKandyan law in respect of adoption. In the chapter (Chapter X) relatingto adoption in Sawers’ Digest of Kandyan Law (see page 39) it is stated,inter alia, that “ the adopted child nust be of the same caste as theadopting parent, otherwise the adopted child cannot inherit the hereditaryproperty ol the parent ”. In Armour’s Kandyan Law (Chapter III,- section 10), there is the following reference to the question of caste inconnection with adoption :—“ However, this much is certain, that unless. the child, and the person who had brought up and educated that child,: were of the same caste, and …. that child 'will not be recognisedas adopted and affiliated ”. And in the translation of the Niti Nighan- duwa, in a reference to the same question it is stated that “ if any persontakes charge of and adopts a child of equal caste, and in order that thechild may at his death inherit his name and lands, makes known to theworld …., that child will inherit the property of his adopting
parents at their death ”. Among the requirements of a valid adoption asset out in Modder’s Kandyan Law (see 1914 ed. page 539) is one that thechild adopted and the parent adopting should be of the same caste. It
CG6T. S. FERNANDO, J.—Subanclrina v. James Appu
does not appear that the expression “ equal caste ” appearing in thepassage from the Nili Nighanduwa reproduced above means, in thecontext, anything different from “ same caste ”.
The learned District Judge has found, and his finding is supported byevidence, that the deceased Simion Singho was a person of the Goigamacaste while the 1st and 2nd respondents are children of parents who wereof the Wahumpiira caste. It must therefore be taken as proved thatthe 1st and 2nd respondents were not of the same caste.
Mr. Jayewardene, in support of his argument that caste will no longer berecognised by our Courts as a bar to the inheriting of property referred usto certain observations in judgments delivered in this country over a verylong period of time, and notably to the following :—
the judgment in D. C. Kandy Case No. 20090 reported in Austin’s
Reports, 1848, at page 236 :—j
“ But if parties of different caste are clearly proved to haveagreed to marry, by the usual wedding ceremonies havingpreceded their union, or other clear and positive proof of theirintentions to marry, the court would not then declare such a. marriage to be null and void, as being prohibited by any Kandy ancustom now prevailing or in force, when all legal disabilities forcaste are virtually abrogated and obsolete in the Colony ”.
This passage was cited by Garvin A.C.J. in Mahamadu v. JDingiriMeniJce1 in which case the Court held that there is no rule ofKandyan law under which a woman, who during the subsistenceof a valid marriage commits adultery with a man of lower caste,forfeits her rights to ancestral property.
the observations of Garvin A.C.J. himself in Mohamadu v. Dingiri
Menike {supra) :—
“ it would, I think, be correct to say that at no time withinapproximately the last century have marriages betweenpersons of different castes been prohibited or irregular carnalrelationship between them penalised ”.
and
the observations of MacDonell C. J. in Sinnacuddy v. Vethattai 2,
referring to the judgment in Mohamadu v. Dingiri Menike{supra) that:—
“ the meaning of the judgment in 35 N. L. R. is this, that theCourts no longer recognise these caste distinctions. In theirown sphere of every day social life doubtless they are still validbut apparently we do not recognise them in a Court of Law ”.
It was submitted to us on the strength of the observations referred toabove and by reason of the circumstance that there is no recorded casediscovered by counsel where a person who had been adopted after
1 (1933) 35 N. L. R. at. 339.
a (1935) 4 G. L. W. at 133.
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compliance with the other requirements of the Kandyan law has beenheld, not to inherit his adopting parent’s property because of a differenceof cdste between that of the adopter and the adopted that in the casebefore us this Court should treat the old condition relating to “ samecaste ” as now being obsolete in this country. I did find Mr. Jaye-wardene’s argument attractive and, speaking for myself, would have givenserious consideration thereto on this appeal but for the reason that I amof opinion that this appeal can be decided upon another ground whichrenders unnecessary a consideration of the soundness of thatargument.
It. is not disputed that the property over which the contest we areconcerned with in the case before us has arisen is all acquired propertyof and not property inherited by Simion Singho. According to theKandyan law the incapacity of adopted children who are not of thesame caste as that of the adopter to inherit the latter’s property appearsto be limited to the hereditary property of the adopter; Neither counselin this case has been able to bring to our notice any previous decision of thisCourt directly to the point, but Mr. Jayewardene has referred us tothe i decision in the case of Lapaya v. Dingiri and Kiri Bindu1 in thecourse of which Wood Renton J. (Hutchinson C.J. agreeing), afterreferring to the statement in Sawers’ Digest, stated “There is no clearevidence (a) as to whether or not the parents of the adopted daughterwere married—a circumstance which might have made a great differenceto her caste or (6) as to whether or not the property in question is inherited.Sawers, in the passage above cited, seems to restrict the incapacity createdby inequality of caste, to hereditary property -’’. Whatever theory maybe advanced for the basis upon which the disability of a child or childrenof one caste adopted by a person of a different caste to inherit theiradopting parent’s inherited property is founded, there appears to mymind to be good sense in placing no fetters upon such children succeedingto their adopting parent’s acquired property. I would, with respect,adopt and apply the interpretation of the law which appears to have
found favour with Wood Renton J.
* i
In the result the appeal succeeds, and the order of the District Courtdated 21st October 1959 is set aside and the 1st and 2nd respondentsarej declared entitled to the acquired property of the intestate SimionSingho in equal shares. In all the circumstances I do not think it neces-sary to vary the order made by the learned District Judge in regard to the" costs in the District Court, but the 5th to the 7th respondents must pay; the petitioner the costs of this appeal.
De Silva, J.—I agree.
1 {1909) 3 Leader L. It. 3.
Appeal allowed.