002-NLR-NLR-V-25-MENIKA-v.MENIKA-et-al.pdf
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1923.Present: Schneider J. and Jayewardene A.J.
MENIKA r. MEN1KA et ah
356—D. C. Kurunegala, 8,677.
Kandyan law—flight of illegitimate children to inherit from their mother— .Action to partition twenty-seven lands—Plaint allotting sharesto one defendant only in seven lands—Misjoinder of parties andcauses of action—Deed of gift—Acceptance.
The illegitimate offspring of parents of the same social statussucceed to the inherited or paraveni px*operty of the mother.
In a partition action the plaintiff sought to partition twenty-seven lands, but allotted to second. defendant a share in onlyseven of them.
Held, that there was a misjoinder of causes of action and ofparties.
rJ^HE facts are set out in the judgment.
Joseph, for the appellant.
Soertsz, for the defendant.
Cur. adv. vul
May 31,1923. Schneider J.^
In this action the plaintiff claimed an undivided one-fifth shareof the lands numbered 21 to 27 in the schedule attached to theplaint. She set out title to them in the following manner: Shestated that they belonged to Punchi Menika, who died leavingfive children by her husband, Bandirala, viz., the first, second,third, and fourth defendants, and one Vaithala Menika. Sheclaimed Vaithala Menika’s one-fifth share as the daughter ofVaithala Menika. It was admitted that Vaithala Menika, withthe approval of her parents, lived as the wife of one Ukku Banda,and that the plaintiff is the child of this union, but that no marriagewas registered between them. The cohabitation began abouttwenty-three years ago. It appears to have been contended onbehalf of the plaintiff in the lower Court that she was a legitimatechild, as being the offspring of a union recognized by Kandyancustomary law as marriage. The parties are admittedly governedby the Kandyan law. The learned District Judge held againstthe plaintiff, and she has appealed. The contention on her behalfin the lower Court was an idle one, in view of the decision in 1920in Kuma v. Banda1 that such a union was not a valid marriagefor want of registration. But counsel for the plaintiff presentedher claim in appeal somewhat differently. He conceded that the
* (1920) 21 K. L. R. 294.
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anion of the plaintiff’s parents was not a legal marriage, and thatthe plaintiff was accordingly an illegitimate child, but he contendedthat the plaintiff was nevertheless the heir to her mother’s propertyof all description. It seems to me that this contention is sound,and should be upheld. It is well-settled law that illegitimatechildren succeed to the acquired property of their father. For thisstatement I need refer only to the Full Bench decision in Rankirav. Ukku.' There is also direct authority in the Kandyan lawthat the illegitimate son of a man by a woman of a lower social statusdoes not succeed to his paraveni property.2 The learned DistrictJudge appears to have thought that the lands in dispute in thiscase were paraveni property. He is right in so regarding them.For authority I need refer only to Kiri Menika v. Muttu Menika?.decided by Lawrie J.—a Judge distinguished for his knowledgeof the Kandyan law. But, in view of what I shall be sayinglater, the question whether the lands in question were paraveni oracquired property does not arise and has no bearing.
The precise point raised by the appeal is covered by authority.Armour in chapter V., in which he deals with the rights of inheri-tance as between the mother and her children, says : “ If a womandied intestate leaving issue a son and a daughter bom out of wedlock,and if neither of the children have an acknowledged father,the whole of the mother’s estate will devolve in equal sharesto the son and the daughter, and that even if the daughter weremarried and settled in diga.”
I would regard this as a clear authority for the proposition thatillegitimate children succeed to all the property of their motherwhether paraveni or acquired. It does not seem to me that itis essential that their father should not be acknowledged to givethem that right. Sawer4 says: “If a concubine or a prostituteleave issue, they inherit their mother’s property.” This is givenunder the head of “ Succession to Movable Property,” but if regardbe had to the language of section 11 which immediately precedessection 12, and in which lands are expressly mentioned, I thinksection 12 may also be fairly regarded as not confined to“movables.” Modder5 formulates the proposition of law on thispoint as follows : “ Section 269, illegitimate children inherit theestate of their mother in equal shares,” and then proceeds to givehis comment referring to the original authorities which 1 have cited.
The NUi-Niganduva at pages 15 and 16 has the following:
“ The children of a woman married to a man of her own casteaccording to usual rites and customs, or of a woman who aftercohabitation with a man of higher or of a lower caste than herself,and when still in an unmarried state has intercourse with a man
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SCHNEIDEB
J.
Menika v.Menika
1 (1907) 10 N. L. R. 129.3 (1S99) 3 N. L. R. 376.
* Armour, chapter III., section 2.4 Madder’s Edition, p. 21, section 12.
* Kandyan late, p. 606.
1923.
SOHBNTOHB.
J.
Menika v.Menika
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who is not known, all inherit the estate equally. There arehowever, exceptions, viz., if the parents of a woman marry herto a man in binna, and she bears a child to him, but after cohabitswith and bears a child to a man of lower caste than her own, thechild born in proper wedlock as aforesaid inherits, by maternalright of inheritance, all the ancestral property of the mother,of which nothing goes to the child bom to the low caste man. How*ever, putting aside this ancestral property, all the acquired propertyof this vile outoast woman is divided amongst all her children.
The mother inherits the property of her children at their deathby filial right of inheritance, whether they were bom in properwedlock or in proper cohabitation, but if the mother has becomean outoast, the usage is different; as, for instance, if a womanhas a child by a legally married husband and another by a manof a lower caste than herself, on the death of the former child ellits property devolves on its father or on any near relation, butnot on the outcast mother, though on the death of the child bomto the naan of inferior caste the property which devolved upon thatchild may be inherited by the mother.” The exceptions mentionedin the passage do not arise upon the facts of this case.
De Sampayo J. in Baju v. Elisa, which is reported in full byModder at page 508, states : “ It is settled law that illegitimateohildren of a woman inherit her acquired property equally withlegitimate children,” but gives no reference to that statement.
It is also significant that in all the passages in the text-books inwhich the exclusion of illegitimate children from succession to thefather’s paraveni property is set out, no reference is made to anysuch exclusion as regards the mother’s paraveni property.
I would, therefore, hold that the -plaintiff is entitled by maternalinheritance to an undivided one-fifth share of the lands in question.Her costs of this appeal will be paid by the first and third defendants,who alone resisted her claim. But I have some comments to offerupon the constitution and conduct of this action. The plaintiffsought to obtain partition of twenty-seven lands. Only in sevenof them did she allot a shafe to the second defendant. On theface of it, therefore, the plaint disclosed a clear misjoinder ofcauses of action and of parties. It, should, in the first instance,have been returned for amendment or rejected. That was notdone. In their answer the first and third defendants took objectionto tho form of the plaint, but their objection does not appear tohave been pressed, and the learned District Judge has entirelyignored the defects in the plaint. Considering that this is a parti-tion action, he should have taken notice of them.
The evidence produced at the trial is unsatisfactory and quiteinadequate. It consisted of the evidence of Ukku Banda, thefather of the plaintiff, who stated that Vaithala Meoika was thedaughter of Bandirala, and that the latter gifted twenty lands to
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al1 his chidren, except Kalpa Menika (second defendant) by thedeed P 1, and that the lands 21 to 27 belonged to Bandirala’s wife,Punchi Menika.
Upon this evidence the learned District Judge gave judgmentallotting a one-fourth share in the lands 1 to 20 (that is, thoseincluded in the deed) to the plaintiff and to each of the first, third,and fourth defendants, and in lands 21 to 27 a one-fourth share toeach of the first, second, third, and fourth defendants. Hedirected that an interlocutory decree be entered. The decreewhich has been entered is not an interlocutory decree, but only adeclaratory decree. There is no order for partition—nor did theDistrict Judge direct it. Except for the statement'in the deed P 1,there is no evidence that Bandirala had five children, or who theywere. There is no proper proof of his title or that of his wife.The deed P 1 deals with only an undivided one-sixth of land No. 1,of an undivided half of land No. 8, and of land No. 19, and withportions only of lands 13 and 16, from which it excludes certainother portions. How can these lands be dealt with in an actionfor partition without all the owners being before the Court ? Thedeed P1 sets out the title of the donor as derived by virtue of certaindeeds. These are not produced in evidence, nor reasons given whythey are not. The deed P1 is a donation. It is not accepted by thedonees on the face of it, and there is no evidence that it was accepted.It states that the possession of the donees shall begin after the deathof the donor. There is no evidence that the donor is dead. P 1is a copy. There is no evidence to account for the absence of theoriginal. The bond giving security for the costs in appeal isnot duly executed in conformity with the provisions of OrdinanceNo. 17 of 1852. It appears to have been signed before a Justiceof the Peace, but nothing to show that that gentleman is speciallyauthorized to act in that behalf. It is not attested by witnesses.The petition of appeal does not give the names of all the respondents.I am mentioning all these details, even at the risk of appearingcaptious, to show that the plaintiff’s proctor has bungled alongliterally from start to finish. He has no excuse for the blundershe has committed. It is not fair to his clients that they shouldhave to pay for his blunders. I must, therefore, much* as I regrethaving to do so, direct that he is to pay personally the costsreferred to below.
Acting in revision, I set aside all the proceedings from the present-ment of the plaint, except in so far as they relate to the determin-ation of the question of the plaintiff’s claim by right of maternalinheritance. Lands 1 to 20 canhot be the subiect-matter of thisaction. The plaint must be amended so as to ^confine it to thelands numbered 21 to 27, in which alone all the parties to theaction have shares. When that amendment has been made, theaction will proceed as if that amended plaint was the institution
1923.
SCHENDXEB
J.
Menika v.Menika
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1923.
SCHNBIDEB
J.
MeniJoa v.Menika
of this action. The plaintiff’s proctor must pay to all the defend-ants such costs as they may have incurred from the date of theinstitution of the action up to the date of the decree appealedagainst.
Jayewaudene A.J.—
I agree. Being on circuit I have not been able to consult allthe authorities bearing on the question whether under the Kandyanlaw, the illegitimate offspring of parents of the same social statussucceed to the inherited or paraveni property of the mother, butthe authorities I have been able to consult appear to support theview taken by my brother Schneider. I am, however, somewhatdoubtful whether under the Kandyan law, a deed of gift, such asthe one produced in this case, P 1, requires acceptance either onthe face of it or otherwise.
Sent back.