Sri Lanka Law Reports
(1989J I Sn L. R.
' V,.SAMARAKOdKl BANDA AND OTHERS
COURT, OF APPEAL.
VIKN.ARAJAH.pJ. AND.,A- DE. Z. GUNAWARDENA..
C. A- NO. 31.9/82(F) '
D: c:KURUNEGALA 4842/PMAY 29/1989 .
Kandyan Law — Succession — Paraveni property — Illegitimate children.
Under Kandyan-C'orhmon Law rules of'successidn illegitimate children succeedin equal.shares to. all the property oftheir mother whether paraveni or acquired.
CA Muthu Banda v. Samarakoon Banda and Others (Viknarajah. J.)329
Case referred to:
1] Menika v. Menika 25 NLR 7
^APPEAL from judgment o( the District Court of Kurunegala.
C.R. Gunaratne with T. R. Rajapakse for'8th Defendant-AppellantE. Ratnayake with A. Rodrigc:iot Plaintiff-flespondent , ■ – ■ , 1 :
Cur. adv. vutt.
July 24. 1989 •VIKNARAJAH.. J.
This is an appeal by the"= 8th defendant-appe 11 a ri t from the'judgment 'of ‘the learned District Judge according to'.which thepaddy field sought to be partitioned devolved'onrthe' plaintiff aridthe 1st to.7th defendants,/ . „
According to the, pleadings of the plaintiff the original owner.ofthe land was one Mudiyanse and. his.successors in.title we re..the.,plaintiff andv -the. -1 st to 7th ^defendants. The 8th, defendantcontended..the. original,pwnersy wefe/Mudiyanse and,.his- sisterBandi Menika. ',,and thatu;Band.i. Mpnika. was entitled to .' anundivided Vi-, share- which devolved.–ori his son App.uhariny andthereafter on the 8th defendant who is.the son of Appuharpy.'!,'
The plaintiff, in his'.evidence admitted'that, Mudiyaosp-had a: sister by the name.of Bandi Menike.and that Ba.ndi Menike,hacl a •son. by the name, o.f Appuhamy yyho. is. the 'father .61.8thdefendant. Plaintiffs evidence is that he cultivated a portion ofthe paddy field and 1st ..and 4th. defendants, were cultivatinganother'portion and that 8th defendant does riot possess anyportion of this field!”
The '8th defendant' in; his evidence stated that Bandi-Menika
was married in ■ binna/.and ' remained-/in the/'Mulgedera. -He'claimed V2 share through Bandi Menika as Paraveni property. Hestated that as they were all relations he did not go to claim thisland. –
The learned trial Judge-has rightly held tftat there .is noevidence that the plaintiff and_J — 7th defendants have
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119891 1 Sr/L 8.
prescribed adversely to the rights of Bandi Menika and hersuccessors in.title by ouster. The plaintiffs' Counsel in his writtensubmissions in the District Court had taken up the position that
other ancestral lands were given to Bandi Menika and that
Mudiyanse was given this lan^J. By this submission the plaintiffconcedes that Mudiyanse. and Bandi Menike were the originalowners-but by some arrangement Mudiyanse was given this
land. The plaint does not iset out this position and there is noevidence to this effect.
The plaintiffs' Counsel in his written submission has taken upthe position that as Bandi Menike was married in Binna. as statedby 8th defendant and that according to the birth certificate (8DI)of Appuhamy the father of. 8th defendant, he (Appuhamy) was anillegitimate child of Bandi Menike. under the proviso to section1 8 of the Kandyan Law Declaration and Amendment Ordinance(Cap. .71). the' 8th defendant cannot succeed because anillegitimate child of a ■ binna association cannot succeed tomother's interests. This submission was for the first time madeonly in the-written submission of the plaintiffs' Counsel in theDistrict Cou'rt. There was noTssue on this. The learned trial Judgehad accepted' this submission and held that 8th defendantcannot succeed to Bandi Menika’s interests.
' Section 8(1) wilj apply only to married women who died afterthe commencement of the said Ordinance and the proviso willapply only if the.deceased was married in Binna.
According to 8DI the Birth-Certificate the parents of Appuhamywere not married. Further tfiere is no evidence as to when BandiMenike died. Her son Appuhamy was born on 18th-May 1875.Thus section 1;8 will not apply to this case. Thus the KandyanCommon'Law./ules of-succession in regard to Paraveni propertywill apply. •
Under the Kandyan law the illegitimate offspring of parents ofthe same social, status succeed to the inherited or paraveniproperty of the mother.
CA Muthu Banda v. Samarakoon Banda and Others (Viknarajah. J.)
In the case-of Menika vs.. Menika (1) Schneider. J. at page 7_states as follows
"Armour in Chapter V in which he .deals with the ..rights ofinheritance as between the mother and her children says 'ifa woman died intestate leaving' issue^a son and a daughterborn out-of-wedlock- -and if neither of the.children have anacknowledged father, the whole of. the mother's1 estate willdevolve in equal shares,to the son and'the daughter, andthat even if the daughter were.married' and- settled in diga";.
" hwould regard this as a.clear authority for the propositionthat illegitimate children.succeed to a|l the property of their •mother whether paraveni or acquired. It does not seem tom.e'that it is;■ essential that their'-father should nob beacknowledged to give them that right. Sawyer- says> ■ ! If,aconcubine or a prostitute have issue, they inherit their, -••..mother.’s' property
Schneider,'J. goes on to state as follows–:—•
" Modder formulates the prppositio.n.;o.f:law,o.n.this point,asfollows : ■" Section 296. illegitimate children .inherit theestate of their mother in equal shares ".
The learned trial Judge has misdirected himself in applyingSection 18 of the Kandyan LaW'and Declaration Ordinance.
In this appeal counsel before^us :fo;r both'- sides argued on thebasis that Kandyan Law applies and the. property is paraveniproperty. At the trial the 4th defendant raised1 the following
" Even if Bandi Menika is Mudiyanse's sister,has sheforfeited her right to succeed as she was married in diga " ,
■The-8th defendant-in his..evidence stated that Bandi Me,nike 'was married in. binna. to .Kaurala. Thereafter in the writtensubmissions in the District Court plaintiff's Counsel himselfsubmitted that under section 18'of the Kandyan Law Declarationand Amendment Ordinance Cap. 71 as Bandi Menika was not legally
Sri Lanka Law Reports
(19891 1 Sri L. R.
married her illegitimate son cannot succeed to Bandi Menika'sinterests. Now realising that this submission which the DistrictJudge has upheld cannot be supported. Counsel for Respondentin this Court in his written submission for the first time has takenup the position that the Kandyan Law does not apply but it is theRoman Dutch Law that applies. I do not think that Counsel canchange front in this manner. I hold that it is Kandyan law thatapplies in this case.
I hold that Bandi.Menika.is entitled to a 1 /2 share and her 1 /2share devolved on the 8th defendant appellant. Mudiyanse isonly entitled to a 1 /2 share which devolved on the plaintiff and.1-7 defendants.
• I set aside the judgment of the learned District Judge and allowthis appeal with costs.
I direct that the land be partitioned in the shares stated above.Plaintiff will be entitled to cost of partition pro rata. Enter
Interlocutory decree accordingly. • • .
A-. de:Z; gunawardena, j. — I agreeAppeal allowed