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Present; Dalton J. and Maurtens7. A.J.
MEKIKHAMY v. SUDDAXA et al.
238—D. C. Kuruncgala, .9,696*.
brothers over sisters.
Where a Kandvan died without issue leaving him surviving twobrothers and two sisters.
Held, that the brothers were entitled io his acquired propertyto the exclusion of the sisters.
Dullctcc v. Dulleice cl al.1 followed.
A CTLOX for declaration of title to 7/16th share of a land calledXjL lvudapelessahena, the original owner of which was oneDingira, who died leaving him surviving two sisters Saru andTikirathi, and .two brothers Suddana, 1st defendant, and Kira. By
1 6 Leader L. R. 39.
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purchase the plaintiff became entitled to 7/16th of the half shareof the two sisters. The 2nd defendant acquired the interestof the brother Kira. The defendants contended that the property,being acquired property, was inherited by the brothers to the•exclusion of the sisters. The learned District Judge dismissed theplaintiff's action.
H. V. .Perera, for plaintiffs, appellant.
Weerasooriya, for defendant, respondent.
December 17, 1926. Dalton J.—
This appeal I'aises an interesting question as to succession underKandyan law.
The plaintiff sought to obtain a declaration of title to an undivided7/16th share of a land called Kudapelessahena. The parties areagreed that one Wattuwa Dingira was the original owner, thedispute being as to what is the law of succession applicable in thefollowing circumstances. Dingira died leaving surviving him histwo sisters Saru and Tikirathi, and Suddana. and Kira two! brothers.The case for the plaintiff is that .these four were his heirs, and assuch entitled to a l/4th share of the land each. By purchase theplaintiff became entitled to 7/16th of the half share of .the two sisters,by deed No. 62,513 of September 19, 1922. The brother Suddanais the 1st defendant, and Kira the 2nd defendant, obtained bypurchase the interest of the second brother Kira. The defendants,however, say that the two sisters inherited nothing of their deceasedbrother’s estate, the whole being divided between the .two survivingbrothers Suddana and Kira. It is admitted that the property isacquired property, bu.t the parties are not agreed as to whether'Saru and Tikirathi were married in binna, or in diga; plaintiffsays they were both married in binna, but defendants deny this.Should it have been necessary to have this decided to come to a•decision in the matter, the ease must have gone back for evidenceand a finding on the point. No evidence at all was led in the case,■the question of law to be answered by the trial Judge being setout as follows: —
“ Did the 1st defendant and his brother Kira become solelyentitled to the land, or did they and their two sistersbecome entitled to a quarter share each? ”
The learned Judge held that this question was answered in favourof the defendants by the decision of this Court in Loku BandaDullewe v. David Walter Dullewe and others (supra), which decisionwas binding upon him. He therefore dismissed plaintiff’s action.Plaintiff now appeals to this Court. For the appellant Mr. Perera
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has argued that, so far as any previous case in this Court cannotbe distinguished from this case, the decision has proceeded upon,a misapprehension of the Kandyan Law of Succession as setout by Sawers and Armour.
In the case followed by the learned trial Judge it was held thatwhere a Kandyan died, without issue, leaving surviving him twobrothers and two sisters, the sisters were not heirs to the acquiredproperty of the deceased. There is no reference in the judgmentas to the kind of marriage the sisters had contracted' or whetherthey were married at all. The Court seems to have regarded thatpoint as immaterial. They purported to follow an earlier decisionDingiri Menika v. Appuhamy 1 where it was held, but so faras Lawrie J. was concerned with some hesitation, that where aKandyan* died intestate and without issue the lands acquired byhim devolved on his uterine half-brother, to the exclusion of hisuterine half-sisters who hadmarriedindiga.It appears from
the report of that case that the trial Judge had held that the womanby her diga marriage had forfeited the rights of succession to anyproperty that her brother had acquired, but the argument on appealwas not based upon the existence of the diga marriage. It wasurged that, according to Sawers, in such a case the males werepreferred to the females, and on that ground the sisters, whethermarried in binna or in diga,could notsucceed.It was upon this
ground also that the Courtaffirmedthetrial.Judge's decision,
pointing out that the opinionexpressedbySawers (Sawers’ Memo-
randa, page 18), was accepted in Mudalihami v. Bandirala. 2
It is this alleged preference of males that is now questioned, andMr. Perera has put before the Court the views on that point expressedby Mr. Haylev in his Sinhalese Laws and Customs. At page 336and the subsequent pages of that work it is sought to show that theviews of the Court and authorities in the cases I have cited werebased upon a misapprehension as to Sawers' meaning. There isno doubt, from a logical point of view, and perhaps from an equitablepoint also, Mr. Hayley’s theory is an attractive one, but it is based,so it seems to me, upon an assumption that Sawers meant somethingwhich he certainly has not expressed in words. I am far fromsatisfied that one is justified, especially at this point of time afterthe matter has been fully considered and the opposite viewadopted over a period of very many years, in making those assump-tions to bring the law into conformity with what one thinks itmight properly be. It is not easy in every case to gather t-beprinciple underlying the various cases which Sawers and Armourset forth, and as the argument in this case has shown it is not easyto reconcile the passages in Sawers to which we have been referred.This reconciliation has, however, been attempted in the past and
1 6 N.L. R. 133.
* 3 N. L. R. 209'.
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the result is set out by Modder (The Principles of Kanthjan Law)at page 617, after a detailed examination of the rights of ascendantsand collaterals, in the following way: —
“ The general rule which governs the law of devolution ofinherited property is that descendants failing, the propertygoes to the source whence it came, so that property whichcame from or through .the father reverts to the heirs onthe part of the father, and property which came fromor through the mother reverts to the heirs on the part ofthe mother. This rule is further qualified by the principlethat when the line of descent is broken, inherited propertygoes over to the next nearest line issuing from the commonancestral roof tree. In regard to acquired propertythere is no definite system laid down by the jurists, butthe tendency is to give preference to the maternal overthe paternal line and to elect males before females in thesame degree.”
This view has been adopted bv the Courts over a very long periodin the past, and until it be held to be wrong by a higher Court,.I am not prepared to take a contrary view.
For these reasons, I think, the decision of the trial Judge wascorrect, and I would therefore dismiss this appeal with costs.
The plaintiffs in this action sued the defendants for declarationof title to- 7/16ths of a' land called Kudapelessahena. The land!belonged to Wattuwa Dingira who died leaving as heirs his .sistersSaru and Tikirathi, and two brothers Suddana, the 1st defendant,and Kira. Kira’s son has sold his interest to the 2nd defendant.Saru died leaving as hens a child Punchi and two grandchildren,Ganitha and Ukku. Tikirathi died leaving as heirs an only sonDingira who, with Punchi and Ukku, sold 7/l6ths to plaintiff bydeed No. 32,513 dated September 19, 1922. At the .trial it wasadmitted that Kudapelessahena was the acquired property ofWattuwa Dingira, and it was contended that according to Kandyanlaw the brothers of a person dying intestate inherit before the-sisters the acquired property of the deceased.
The learned District Judge upheld this contention and dismissedplaintiff’s action, and he appeals.
The principle followed by the District Judge is in accordancewith the decided cases. In Dingiri Mentha v. Appuhamy (supra) thisCourt held with some hesitation on the authority of a passage inSawer’8 Kandyan Law, page 13. that where a Kandyan died intestateand without issue the lands acquired by him devolve on his uterine-
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half-brother to the exclusion of his uterine half-sisters. Thisdecision was followed in the case of Loku Banda Dullewe v.David Walter Dullewe et ah (supra) where the contest was betweena brofther and sister.
We were asked to reconsider these decisions in view of thepassage in the Niti-Nighanduwa at page 97, which is as follows: —
If the landed proprietor dies leaving a brother and a sister,and the sister is unmarried or married in binna, all thelands of the deceased, including his paternal lands, will beequally divided, and the brother and sister will inheriteach one half. But if the sister is married in diga thebrother will inherit the paternal lands of the deceased.”
And the opinion expressed by Mr. Hayley in his book on SinhaleseLaws and Customs at pages 426-427 that brothers and sisters arein the same position as regards succession. The general rule isstated by Sawer at page 8 as follows:—■
4< Failing immediate descendants, that is, issue of his own bodyby a wife of his own or higher caste, a man's next heirto his landed property (reserving the widow's life interest)is his father, or if the father be demised, the mother, butthis for a life interest only, or on the same condition asshe holds her deceased husband's estate which is merelyin trust for her children, next the brother or brothers andtheir sons, but failing brothers and their sons, his sister’sor sister’s son succeeds.”
At page 13 he draws a distinction between paraveni and acquiredproperty and says—
” A person dying childless, having parents and brothers andsisters, the property • which the deceased may have hadfrom his or her parents reverts to them reciprocally (iffrom the father to the father, if from the mother to themother) as does his acquired property whether land,cattle, or goods to his parents ; but his parents have onlythe usufruct of the acquired property, they cannot disposeof it by sale, gift, or bequest ; it must devolve on thebrothers and sisters, the latter having only the same degreeof interest in their deceased brother’s acquired property,that they have in their deceased parent’s estate ; ultimatelyit is divided among the brothers of the whole-blood ofthe deceased equally ; or their sons according to whatwould have been their father’s share ; but failing brothers'sons, it goes to the sisters of whole-blood or their sons ;and failing them to the brothers of the half-blood uterineand their children ; failing them to sisters of the half-blood
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uterine and their children; and failing brothers andsisters of the half-blood uterine and their children, theproperty goes to the brothers of the half-blood by thefather's side and their children; next to the half-sistersby the father's side and their children; and failing themto his mother's sister, and next to cousins called brothersand sisters on the mother’s side,, that is to say, the mother'ssister’s children; and failing them to the mother’s brothersand their children, and failing them to the father’s brothersand their children; and failing them to the father’s sistersand their children. ”
This passage is reproduced in Thompson’s Institutes, Yol. II.,page 648, with slight variations. The most important is that the-words “ who …. have " are substituted for the- words“ the latter having. ”
At page 17 Sawer sets out the devolution of the acquired propertyof a woman who dies intestate without issue thus:
“ An unmarried daughter acquiring property and dying intestateher property goes to her mother; failing the mother tothe father; and failing the father to her brothers andsis.ters of the whole-blood—if there be but one such brotherthe whole goes to him; if there are several brothers theyshall share equally; failing brothers and sisters of thewhole-blood to the brothers arid sisters uterine of thehalf-blood; and failing them to the brothers and sistersof the half-blood by the father’s side; and failing them tothe maternal uncle; failing him to the maternal aunt;and failing the maternal aunt to the maternal grand-mother; andfailingher to thematernal grandfather;
and failing him to the paternal uncle; and failing him tothe paternalaunt ;failingthepaternal auntto the.
paternalgrandfather;andfailing him tothe paternal
grandmother;failingthe paternalgrandmotherto the
maternaluncle’s sonsanddaughters; andfailing them
to the maternal aunt’ssons and daughtersor grandsons
and granddaughters; and failing them to the paternaluncle’s sonsand daughters orgrandsons andgrand-
daughters; and failing them to the paternal aunt’s sonsand daughters, or grandsons and granddaughters. ”
Here where the brothers and sisters of the whole and half-bloodfail, the male relatives on the mother’s side' are preferred to thefemale relatives of equal degree of consanguinity.
The importantdifference isthatsisters inheritequally with
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1926. It was contended that the statements are inconsistent andMa^^nsz that there is nothing in the Kandyan law to justify the preferenceA.J. of males over females.
Menikhamy Mr. H&yley at page 388 of his work on Sinhalese Laws andSuddana Customs sets out the devolution of title in the form of a tableand expresses the opinion that Sawer was referring to sistersmarried in diga. His arguments in support of this opinion are-very attractive, but after careful consideration I am unable toaccept them, for I see no reason why Sawer should not have men-tioned it if he was writing of diga married daughters. Armour atpage 46 (Perera's edition), dealing with the inheritance bV brothersand their children and sisters, draws a distinction between digaand binna married sisters in the inheritance of * paternal paraveniland, but in the case of acquired property he says the property willdevolve on the deceased's brother's son in preference and to theexclusion of the deceased's sister's son.
The case of Dingiri Menika v. Appuhamy (supra) construed thepassage on page 13 as applying to binna and diga married sisters,and I have no doubt has been followed ever since in the'distributionof the property of a man dying intestate leaving brothers andsisters as heirs, and I am not prepared to dissent from that construc-tion in the absence of any rule which states definitely that binnamarried sisters inherit equally with brothers.
I would accordingly dismiss this appeal with costs.
MENIKHAMY v. SUDDANA et al