079-NLR-NLR-V-24-NANDUWA-v.-PUNCHIRALA-et-al.pdf
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Present ; Bertram C.J.
NANDXJWA v. PUNCH1RALA et al.Ill—C. R. Panwila, 5,101.
Kandyan law—-Intestate succession—Person dying leaving children bytwo or more beds.
Where a person dies intestate, leaving issue by two or morebeds, the estate is divided among children per stirpes and -not percapita.
In this case the plaintiff sued the defendant for possession of thewestern half share of the held called Uduporowekumbura of5 lahas in paddy sowing extent by inheritance through his full-brother Puneha. The defendants filed answer stating that thesecond defendant as a half-sister of the plaintiff was entitled tohalf of the field. At the trial the plaintiff admitted that the seconddefendant was the daughter of his mother Kirie by her secondhusband. On this admission the learned Commissioner of Bequestsdeclared the second defendant entitled to half the share of juirie’sestate.
The plaintiff appealed.
H. V. Perera, for appellant.
R. C. Fonsekas for respondent.
August 21, 1922. Bertram C.J.—
There is no doubt that both in the answer and in the issues, thelaw on this matter had been misconceived, but the learned Judgehas correctly apprehended it. It has been settled by a decisionof this Court in Siriya v. Kaliui 1 that where a person dies intestate,leaving issue by two or more beds, the estate is divided among thechildren per stirpes and not per capita. That is recognized assettled law in Modder's Kandyan Law, paragraph 268, page 504.Mr. H. V. Perera asks me to refer this matter again for a Full Court,as the Court in 1889 was not unanimous. 1 do not feel justifiedin doing so. The law has been so accepted since the year 1857,and T agree with the observations of Burnside C.T., that thereshould be a fixed rule rather than one varied from time to time.Mr. Perera suggests there may be some ambiguity, and asks meto declare that his client is at least entitled to an undivided halfof the land in question. That, however, was not contested, and Ithink the learned Judge’s judgment and his decree admit of noambiguity.
The appeal must thterefore be dismissed, with costs.
Appeal dismissed.
> (1889) 9 S. C. <3. 45.
1922.