BASXAYAKE, C.J.—Malluicn v. Gurtasckera
i957Present :Basnayake, C.J., Pulle, J., K. D. de Silva, J.,• T. S. Fernando, J., and L. W. de Silva, A.J. •JIALLAWA and another, Appellants, and SOAIAWATHIEGUNASEKERA, Respondent
S. O. 1S0—D. C. Kandy, P. 3,317
Kandyan Law (prior io Ordinance JYo. 39 oj 193S)—Illegitimate daughter—Soleillegitimate child—Marriage in diga—Right to inherit father’s acquiredproperly—Kandyan Law Declaration and Amendment Ordinance, JVo. 39 ofJ93S, s. 14. –
Under Kandyan Law prior to the Kandyan Law Declaration and AmendmentOrdinance Xo. 39 of 1933, when a father died leaving logitimato children and. also a sole illegitimate child who was a daughter, the illegitimate daughterdid not forfeit her right to a moiety of tlio acquired property of her father bymarrying in diga after his death, even whoro the parents of both the legitimateand the illegitimate children wore the samo.'
PPEAL from a judgment of the District Court, Kandy. This appealwas referred to a Bench of five Judges under section 51 of the CourtsOrdinance.-
E. B. Wikranutnayake, Q.C., with IF. D. Gunasekera, for Defendants-Appellants.
H. V. Perera, Q.G., with C. R. Gunaratne and B. S. O. Ralwalte, forPlaintiff-Respondent..
Cut. adv. vult.
November 11, 1957. BasnayaivE, C.J.—
The plaintiff-respondent (hereinafter referred to as the respondent)instituted this action for a partition of four lands which are the acquiredproperty of her deceased father Singa. In each of them she claims she isentitled to an undivided half share-•
The main question that arises for decision on this appeal, which hasbeen referred to a Bench of five Judges under section 51 of the CourtsOrdinance, is whether under Kandyan Law an illegitimate daughterwho is also the sole illegitimate child of her father loses her right to hisacquired property by marrying in diga after his death.' .- • _ • … -•
The facts as found by the learned trial Judge! were hot questioned.
It would appear that the respondent’s father Singa arid mother Rarikiriwere married in 1905. They had one child,'a son,-Sumanasiri, born in 'wedlock in 1907. His parents obtained a divorce in 1908. Four years .later, in July 1912, the respondent was born, Singa being the father and yRarikiri the mother. Singa died in April 1912 before' the respondent was ;born and had no other children born out of wedlock. The respondent- "married in diga in 1927. Her father left acquired property of which she –
BASXAVA2CE, C.J.—Mallaiva v. Ounasekera
claims a moiety. The 1st appellant, avho is Sumanasiri’s successor in.title, claims the entirety of the acquired property of Sumanasiri’s father-on the ground that the respondent forfeited her right to a share in themby going out in diga.
The precise question -whether an illegitimate daughter who is the soloillegitimate child forfeits her inheritance by going out in diga has notbeen decided in anj' reported case. Learned counsel for the appellants,relied on the case of Ran Menike v. Nandohamy, 57 N. L. R. 453. Thatcase -which decided the right of succession under the Kandyan LawDeclaration and Amendment Ordinance, No. 39 of 193S, of an illegitimatedaughter who married in diga, docs not apply to the case now before us.
It is settled law that on a dig a marriage the only legitimate daughterwho is also the sole child of the father does not forfeit her right to–succeed to his acquired property hit is also settled that where a Kandyanfather leaves both legitimate and illegitimate children his acquiredpi-operty is shared between them, each branch taking a moiety2. In sucha case the succession is per stirpes and not per capita. It is acceptedthat where a father leaves issue by two marriages and the issue of eachmarriage inherit a moiety, the only child of one marriage does not forfeither moiet3r b3' marrying in diga 3.
The question that has not been settled is—What happens to the moiety,that goes to the illegitimate children when there are legitimate andillegitimate children and when the 011I3' illegitimate, child, a daughter,goes out in diga 7 Does it go to the legitimate children or does it remainwith the sole illegitimate child though married in diga ? Learned counsel. for the appellants contended that on the diga marriage of the respondenther right to the acquired propert3' of her father was forfeited and enuredto the benefit of Sumanasiri, the legitimate son of the father. He arguedthat in the instant case the respondent did not as in the case of childrenof two marriages inherit a moiet3” because the respondent and Sumanasiriwere children of the same parents and the rule of succession that wouldapply in their case would be the rule that applies to legitimate childrenof the same parents.
Learned counsel for the respondent contended that the respondentwas an illegitimate child as the marriage of her parents had been dissolved -at the time she was conceived, and that the moief.3' of the illegitimateissue is not forfeited on the diga marriage of the sole illegitimate child,a daughter, because there is no one in whose favour the forfeiture couldoperate. He submitted that where there are children of two or more marria-ges the division is per stirpes and not per capita and that the rule is thesame in the case of legitimate and illegitimate children even though theybe of the same parents. We are of opinion that the contention of thelearned counsel for the respondent is entitled to succeed.■.
In our opinion the sole test of legitimacy in a case like the presentone is the marriage of the parents and by. that test Sumanasiri waslegitimate and the plaintiff illegitimate, even though they were the
1 Vkt.uwa v. Tikiri (1S61) Austin 121.' Jlankiri v. Ukku, 10 A'. L. It. 129.
.» Punch* Mcnika v. Tcnnckoongcdera (1313) Morgan 369.
BASN’AYA'CJG, C.J~.—JMallawa v. Gitnasckera
children of the same parents. That marriage is the true test is recognisedby the Legislature in section 14 of the Kandyan Law Declaration andAmendment Ordinance, No. 39 of 1938..•
If illegitimate children as a group are entitled to succeed to a moietyof their father’s acquired property, there is no principle of Kandyanlaw which can be invoked to justify placing a sole illegitimate daughtercontracting a marriage in cliff a in a less advantageous position than thesole legitimate daughter of the same father.
The rule that applies in the case of cliildren of two marriages shouldapply to the case of legitimate and illegitimate childrerrof the same father,and where there is a sole illegitimate cliild who marries in cliff a she doesnot forfeit her moiety even where the parents of both the legitimate andthe illegitimate children are the same.
We accordingly hold that the respondent,’ the only illegitimate childof Singa, did not forfeit her right to her moiety of her father’s acquiredproperty by marrying in diga.
It was assumed for the purpose of this appeal that the fact thatthe respondent went out in diga fifteen years after the death of her fatherwhereupon her moiety would have vested in her did not affect the ruleas to forfeiture on a diga marriage.
There is only one other question that arises for decision in this appeal,namely, the question of res juclicala. We are of opinion that the decisionin M. R. Kandy 120, a case instituted after the respondent had marriedin diga, in which Sumanasiri sought a declaration that he was the soleheir of his deceased father Singa and that the respondent was not thechild of Singa is res'judicata. In that case it was decided that Sumanasiriwas not the sole heir of Singa and that the respondent was the child ofSinga and Rankin'. Reliance was placed on the fact that certain materialissues which were framed by the learned trial Judge in that case werereserved for consideration in separate proceedings. It flows from thedecree which declared that Sumanasiri was not the sole heir of Singathat any issue of fact, whether raised or decided at the hearing or not,directed to reverse the decree cannot be re-agitalcd in a subsequentease. We uphold the submission of learned counsel for the respondentthat the 1st appellant cannot escape the operation of section 207 of theCivil Procedure Code by inviting the Court not to decide issues thatarise on the pleadings unless the reservation of such issues comes withinthe provisions of section 40G of the Civil Procedure Code.=
We accordingly dismiss the appeal with costs.’
Pdxle, J.—I agree.
K.D. de Silva, J.— I agree.
T. S. Febsaxdo, J.—I agree.
W. dc Silva, A.J.—I agree.-'
MALLAWA and another, Appellants and SOMAWATHIE GUNASEKERA, Respondent