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September 7.and 11.
Kandyan wife—Marriage with low-country Sinhalese man residing in Kandyanterritory—Death of the wife, intestate, leaving her surviving her husbandand child—Death of the child—Inheritance—Ordinance No. 15 of 1876,ss.ZandO—“ Different race.”
A low-country Sinhalese is not a person of “ different race or nation-ality ” (in the words of section 2 of the Ordinance No. 15 of 1876) from aKandyan Sinhalese. Therefore, under the proviso of the same section,the matrimonial rights of a low-country Sinhalese husband and hisKandyan wife are to be governed by the Kandyan Law.
Where D. M, a Kandyan woman, married a low-country Sinhaleseman living in the Kandyan territory and died intestate, leaving hersurviving her husband and an infant child, which also died,—
Held, that her mother and brother, and not- her husband, shouldinherit her property.
MANIKKAN et al. v. PETER.D. 0., Regalia, 954.
HIS was an action to declare that plaintiffs were entitled tothe whole of a certain land and to an undivided one-third
of another land. It was admitted that the land belonged to oneDingiri Mahatmaya, and was purchased by her from her fatherBalahamy by a deed dated 9th October, 1889; that she marriedthe defendant, a low-country Sinhalese residing in the KandyanProvinces, on the 12th September, 1894; that the marriage was
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registered and tbe husband and wile lived in Balahamy’smulgedara till the 21st December, 1896, when Dingiri Mahatmayadied intestate, leaving her surviving an infant child, who died afew days afterwards; and that the plaintiffs were purchasersfrom the mother and brother of Dingiri Mahatmaya.
The issue was whether the mother and the brother of DingiriMahatmaya or her husband inherited her property, which wassituated in the Kandyan Provinces.
The District Judge gave judgment for plaintiff as follows:—
“ The facts are' admitted. The only question for decision iswhether the succession to Dingiri Mahatmaya’s lands is to begoverned by the Kandyan Inheritance Law or the Roman-DutchLaw.
“ In my opinion the lex loci rei citcc must apply i.e., the KandyanLaw. The Matrimonial Rights and Inheritance Ordinance, No. 15of 1876, section 2, enacts that ‘ whenever a woman marries, afterthe proclamation of the Ordinance, a man of a different raceor nationality from her own, she shall be taken to be of the samerace and nationality as her husband for all the purposes of theOrdinance. Save as aforesaid, this Ordinance shall not apply toKandyans or Mohammedans, or to Tamils under the Tesavalamai.’Dingiri •Mahatmaya did not marry a man of a different race ornationality from her own. The Sinhalese of the maritimeprovinces are not a different race or nation from the Sinhalese ofthe high lands, commonly called Kandyans.
“ I hold that the land mentioned in the libel devolved, on thedeath of Dingiri Mahatmaya’s child, on her mother and brotherby purchase, from whom they are claimed by the plaintiff.
“ Let judgment be entered for plaintiffs as prayed with costs ofsuit.”
H. Jayawardcna, for appellant.—It has been decided inWijesinha v. Wijcsinlia (9 S. C. G. 199) that the Kandyan Lawdoes not apply to a low-country Sinhalese man resident in theKandyan Provinces. He is not of the same race as the Kandyan.Therefore, when Dingiri Mahatmaya married the defendant, shebecame, under section 2 of the Ordinance No. 15 of 1876, a low-country Sinhalese. The matrimonial rights of these persons mustbe governed by the provisions of that Ordinance. Upon thedeath of Dingiri, section 26 made her surviving husband her heirto one-half of her immovable property and the other half wentto her infant child; and upon the death of the child intestate, itshalf went under section 40 to the father (the defendant) by theNorth Holland Law. The judgment of the Court below is thusclearly wrong.
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Bawa (with him Dornhorst), for respondent.—That would bethe conclusion if the premises were allowed. But the defendantis nationally and racially one with his deceased wife, and theinheritance must be governed by the Kandyan Law, under theproviso of section 2 of the Ordinance No. 15 of 1876. The reasonsgiven by each of the judges who decided Wijesinha v. Wijesinha arenot the same, and Mr. Justice Dias’s dictum that the low-countrySinhalese man was as much a stranger in the Kandyan Provinces asa European admits of considerable doubt. It is not denied thatthe Sinhalese in the Kandyan country and those in the maritimedistricts are members of the same nationality, that is, they occupythe same country, speak the same language, and are ruled by thesame religious and social ideals of life. These facts denote acommon origin, which is also what the term “ race ” means.Bace means common stock. Hence the provisions of the Matri-monial Bights and Inheritance Ordinance do not apply to thepresent case. The District Judge is right in deciding thequestion of inheritance by the rule of the Kandyan Low.
H. Jayawardena in reply.
Cur. adv. vult.
11th September, 1899. Withers, J.—
The facts of the case which present a question of law fordecision are the following:—One Dingiri Mahatmaya owned somelands which are situate in the Kandyan Provinces. She marrieda Sinhalese of the low-country, who lived with his wife on one ofher lands and in it she died. This lady’s mother and brother,claiming to succeed to her landed property as her next of kin,alienated these lands to the plaintiff, a Moorman.
The defendant is in possession of these lands, which he aversbelong to him by right of his wife, who died intestate, and byright of a child, their sole offspring, who survived his mother, butdied before action brought.
The question is, Who has the superior title, the plaintiff or thedefendant? The defendant’s counsel argued that the provisionsof the 6th section of the Matrimonial Bights and InheritanceOrdinance of 1876 pointed to the Boman-Dutch Law as the lawwhich should govern this case.
That section enacts as follows : —
“ The respective matrimonial rights of every husband and wife,
" domiciled or resident in this Island, and married after the“ proclamation of this Ordinance, in, to, or in respect of movable“ property shall, during the subsistence of such marriage and of“ such domicile or residence, be governed by the provisions of“ this Ordinance.”
September 1and 11.
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1899.It was argued as a matter of fact that Dingiri Mahatmaya
September 7. married a person of a different race, and hence, as the wife diedand^ll.intestate, the surviving husband, under section 26 of the Ordinance,
Withers, J.would inherit one-half of her immovable property, and the other
half would, under section 27, devolve on the child of the marriage;and that a* the child died intestate, the child’s half of the immov-able property would devolve on the father by the Roman-DutchLaw as it prevailed in North Holland (see section 40 of theOrdinance). Now, I think, that argument is quite sound if DingiriMahatmaya’s husband can be regarded as a person of a differentrace and nationality from his wife. The husband was of courseof the same nationality as his wife, but was he of the same raceas well? Reliance was placed by counsel, who so contended, onthe dictum of Mr. Justice Dias in the case of Wijesinha v.Wijesinha, D. C., Kegalla, No. 6,283, reported in 9 S. G. C. 199.
In that case two low-country Sinhalese married in communityof estate and settled at Ambepussa, where they acquired landedproperty, and the question for decision was whether the right ofinheritance to that property was to be governed by the Roman-DutchLaw or the Kandyan Law. Chief Justice Burnside decided thatthe question must be governed by the Roman-Dutch Law, on theground that as the property was situated in the maritime provincesthe lex loci rei citce determined the matter. Mr. Justice Clarencecame to the same conclusion on somewhat different grounds.He observed that it was impossible to maintain that what has beenconsidered as Kandyan Law amounted to a distinct lex rei citcegoverning absolutely the devolution of land, as, for instance,gavelkind land in Kent; that all we know is that a certain sectionof the community within the Kandyan Provinces, viz., the KandyanSinhalese, were allowed to retain their own customary law.Hence, as the husband and wife in that case were not KandyanSinhalese, but Sinhalese of the maritime provinces, it could notbe maintained that they became subject to the incidents of theKandyan Law.
Mr. Justice Dias came to the same conclusion, but he madeobservations in his judgment, which have been pressed upon bycounsel. He observed that a low-country man, i.e., a Sinhaleseman settled in the maritime provinces, was as much a strangerin the Kandyan Provinces as a European, and in Robertson's case,reported in 8 S. G. G. 36, this Court had held that the devolutionof property of Europeans in the Kandyan Provinces was notsubject to the customary laws of the Kandyans, and that in hisopinion the same rule would apply to a Sinhalese man of themaritime provinces.
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But it will be seen that Mr. Justice Bias was dealing with thecase of a Sinhalese man of the maritime provinces who badacquired lands in the Kandyan Provinces.
This is a case relating to inheritance to a land owned by amarried women of the Kandyan Provinces. Nor is it a decisionon the point before us whether a Sinhalese man of the maritimeprovinces is of a different race to that of a woman of the KandyanProvinces. It may be, from his observations in that case that hewould have gone that length.
Now, what was the object of the Matrimonial Rights and Inherit-ance Ordinance of 1876? It was to break up the old Roman-Dutch Law of community of estate and to preserve the separateinterests of husband and wife in immovable property. By thatOrdinance a married woman, who has a separate interest inimmovable property, can dispose of it in her husband’s lifetime byany lawful act inter vivos, with the written consent of her husband,but not otherwise, and she is quite free to dispose of it by last will.
By this Ordinance it was also intended to conserve thecustomary law of Kandyans, Mohammedans, or Tamils of theNorthern Province who are or may become subject to theTesavalamai, except in those cases where the husband is not of thesame race and nationality as the wife.
So we come back to the question of race. What does “ raceconnote? It connotes, in my opinion, a people belonging to thesame stock. It can hardly be contended that the KandyanSinhalese and the Sinhalese of the maritime provinces ore notpeople of the same stock. If the question of law is to be answeredas I have answered it, the judgment must be affirmed. I wouldaccordingly affirm it.
September 7and 11.
Browne A.J.—I agree.
MANIKKAN et al. v. PETER