102-NLR-NLR-V-48-MOHIDEEN-et-al.-Appellants-and-PUNCHI-BANDA-Respondent.pdf
318KEUNEMAN A.C.J.—Afohideen v. Punchi Banda.
1947Present: Ketmeman A.C.J. and J aye til eke J.
MOHIDEEN et al., Appellants, and PUNCHI BANDA, Respondent.
S. C. 181—D. C. Kurunegala, 2,711.
Kandyan Law Amendment Ordinance—Proviso to section 10 (1)—Meaning ofthe word child—Legitimate or illegitimate—Devolution of property.
The word child in the proviso to section 10 (1) of the Kandyan LawAmendment Ordinance, No. 39 of 1938, includes an illegitimate child.
^f^PPEAL from a judgment of the District Judge of Kurunegala.
E. A. P. Wijeratne (with him A. Hi E. Molamure), for the plaintiffs,appellants./
C. V. Ranawake, for the defendant, respondent.
Cur. adv. vult.
July 15, 1947. Keuneman A.C.J.—
The plaintiffs brought this action, claiming an undivided half share ofthe field called Galahitiyawa kumbura. It is not in dispute that thisshare belonged to Dingiri Menika, and that on her death in 1935it devolved on Ranhamy Vederala. The plaintiffs-appellants allegedthat on the death of Ranhamy Vederala in 1944, the share passed to hisillegitimate child Kirihamy alios Kirimudiyanse, who sold by P 3 ofNovember 6, 1944, .to the plaintiffs. Ranhamy Vederala and his wifeDingiri Menika were Kandyans, and the plaintiffs alleged that theproperty must be regarded as the acquired property of Ranhamy Vederala.
The defendant denied the title of the plaintiffs, and asserted that theshare in question was the paraveni property of Ranhamy Vederala. andon his death passed to his full brother, the defendant, to the exclusion ofthe illegitimate child.
The question depends on the interpretation of section 10 of theKandyan Law Declaration and Amendment Ordinance, No. 39 of 1938.Under section 10 (1) “the expression ‘paraveni property’ . . . .shall mean immovable property to which a deceased person wasentitled—
(a) by succession to any other person who has died intestate. ”
There can be no doubt that Ranhamy Vederala became entitled to theproperty in succession to Dingiri Menika who had died intestate, andthat under section 10 (1) the share in question must be regarded asparaveni property, if the proviso to section 10 (1) is not taken into account.It is the proviso that raises the difficulty which we have to solve.
The proviso runs as follows : —
" Provided, however, that if the deceased shall not have left him
surviving any child or descendant,v property which had been the
acquired property of the person from whom it passed to the deceased
shall be deemed acquired property of the deceased.”
ICEUNEMAN A.C.J-—Mohideen v. Punchi Banda.
319
For the purposes of this ease “ the deceased ” is Ranhamy Vederala,and “ the person from whom it passed to the deceased ” is Dingiri Menika.It is admitted that as far as Dingiri Menika was concerned, the propertywhen in her hands was acquired property. The question thereforeultimately resolves itself into this—Do the words “ child or descendant ”refer only to legitimate issue, or do they relate to issue both legitimateand illegitimate ? It is agreed that if the former interpretation isaccepted, then the share in question must be regarded as the acquiredproperty of Ranhamy Vederala, which passed to the illegitimate childKirfhamy, and from him to the plaintiffs. If the latter interpretation iscorrect, then the share must be regarded as paraveni property, whichpassed to the full brother of Ranhamy Vederala, the defendant.
The District Judge accepted the latter interpretation and dismissed theplaintiffs' action with costs. The present appeal is from that order.
The District Judge was not prepared to give a “ restricted meaning ”to the term “ any child or descendant ” in the proviso to section 10 (1).He pointed out that legitimate and illegitimate children are speciallymentioned in sections 14, 15 and 22, and argued that “if the draftsmanof the Ordinance had the intention of restricting the meaning of theword * child ’ to legitimate children only in the proviso to section 10,there is no reason why he should not have done so, especially when bothclasses of children are mentioned in other sections of the same Ordinance.”
On the other hand, the opinion of Sampayo A.J. has been cited to us.“ I am not aware of any reason for not applying to a Kandyan, deed ofgift the general rule of construction obtaining under the English and theKoman-Dutch law that such an expression as 1 children ’, * issue or‘ descendants ’ prima facie means lawful children, issue or descendants ”.It is true, however, that the appeal was decided on the ground that the“ whole structure of the deed ” indicated that only legitimate children,issue and descendants were referred to.
I have carefully examined the terms of Chapter IV. of the Ordinancedealing with the rights on intestacy to immovable property. Section 10has already been referred to. Section 11 deals with the rights of thewidow. Under section 11 (1) (c) where a man dies intestate the survivingspouse is entitled to an estate for- life. in the acquired property of thedeceased intestate, and if that property is insufficient for her maintenance,then to maintenance out of the paraveni property, “ provided that if thedeceased intestate left a child or descendant by a former marriage, thesurviving spouse’s life"estate shall extend to only one half of the acquiredproperty ”. This is followed by the proviso that the surviving spouseshall out of her estate for life in the acquired property be bound tomaintain “ the legitimate children of the deceased ” under certainconditions.
It is to be noted that the phrases “ child or descendant by a formermarriage " and “ legitimate children ” in section II are significant, andit ran be argued that when the draftsman of the Ordinance referred tolegitimate issue, he did so in no uncertain terms, and that when the word“ child ” or “ descendant ” was used, he referred to a wider class thanthe legitimate children or descendants.
48/27
320Fernando v. Wijesooriya.
Similarly under section 13, there is a reference to “ issue by two ormore marriages ”.
Under section 14 the terms “ legitimate" and “ illegitimate ” aredefined.
Section 15 deals with the rights of “illegitimate children”. Suchchildren have no right of inheritance in respect of the paraveni propertyof the deceased. But subject to the interests of the surviving spousethey are entitled to succeed to the acquired property of the deceasedin the event of there being no legitimate child or the descendant of alegitimate child of the deceased, and where there are legitimate childrenillegitimate children are entitled to succeed to the acquired propertywith the legitimate children under certain specified conditions.
Section 16 deals with an intestacy, where the deceased has left “ nochild or descendant of a child and no surviving spouse As this sectioninvolves b th the paraveni and the acquired property, it can be argued withsome force that the words “ child ” and “descendant ” cover both thelegitimate and the illegitimate issue.
Section 17 deals with devolution under an intestacy upon “ heirsother than a child or the descendant of a child ” and relates both toparaveni and to acquired property.
Section 18 deals with the case of a “ woman unmarried, or married ”dying intestate and leaving “ children or the descendants of a child orchildren ”, and a proviso deals with the position of illegitimate childrenin regard to paraveni property.
See also Chapter V. which relates to movable property.
On an examination of all the sections of the Ordinance I am of opinionthat the. finding of the District Judge is correct, and that where thedraftsman of the Ordinance used the word “ child ” or “ descendant ”he meant a wider class than the legitimate issue, and that these wordscover both the legitimate and the illegitimate issue. In the present casethis interpretation does lead to an anomalous situation but I think thiscannot be avoided.
In these circumstances, the appeal is dismissed with costs.
Jayetileke J.—I agree.
Appeal dismissed.