( 146 )
Present; De Sampayo J.
PTJNCHERAIiA v. PERERA.271—G. R. Badulla, 3,741.
Kandyan late—Child horn in adultery—Inheritance.
Under the Kandyan law a child bom in adnltery is not dis-qualified from succeeding to hie father's property.
HE facta appear from the judgment.
A. St. V. Jayawardene (with him H. V. Perera), for plaintiff,appellant.
J. W. de Silva, for defendant, respondent.
Cur. adv. vult.
March 5, 1919. De Sampayo J.
The only point for consideration in this case is whether under theKandyan law a child bora in adultery is disqualified from succeed-ing to the father’s property. The facts are that the third defendantis the daughter of one Kiri Banda and Been Menica, who wereassociated as husband and wife for a great many years. HeenMenica, before this association began, was lawfully married to alow-country man named Franciseu Perera, and the third defendantwas bora during the subsistence of that marriage^ The plaintiff,who is a brother of Kin Banda, sets up title by inheritance to anundivided half share of a certain field which the two brothers ownedin common, and the third defendant claims the same as sole heir ofKiri Banda.
After the death of Franciseu Perera in 1910, Kiri Banda andLHeen Menica contracted a legal marriage, which was registeredunder the Marriage Registration Ordinance, No. 19 of 1907, and itwas contended for the third defendant in the Court below that shewas thereby legitimized- I think the learned Commissioner was-right in refusing to uphold that contention. The Kandyan MarriageOrdinance, No. 3 of 1870, section 30, declares that every marriageregistered under the provisions of that Ordinance shall renderlegitimate any children who may have been procreated by theparties thereto previous to their intermarriage. It will be observedthat this section does not contain the qualification stated in section22 of the Marriage Registration Ordinance, No. 19 of 1907, whichexcludes children procreated in adultery from the benefit of legiti-mation, and if the marriage between Kiri Banda and Heen Menicahad been registered under the Ordinance No. 3 of 1870, the thirddefendant would no doubt have been legitimized. It is true thatsection 2 of the Ordinance No. 14 of 1909, which was enacted inorder to remove any doubt whether marriages between Kandyans:
may be registered under the Marriage Begistration OrdinanceNo. 19 of 1907, declares that 'Such registration shall be lawful, andmarriages so registered -shall be valid. But at the same time itprovides that marriages so registered shall, “ as regards the capacityof riie parties to contract marriage, the grounds on which themarriage may be dissolved, and in all other respects, ” be governedby the Ordinance No. 19 of 1907, and that the provisions of theKandyan Marriage Ordinance, No. 3 of 1870, shall have no applica-tion whatever thereto. Consequently, the exception to legitimationin the case of children procreated in adultery applies to Kandyans .who intentionally or otherwise register their marriages under thegeneral Marriage Begistration Ordinance, No. 19 of 1907. Thereis a saving clause,, however, which conserves to such children therights of succession to property, for the second proviso to section 2declares that the circumstance that a marriage between Kandyanshas been registered under the Marriage Begistration Ordinance,No. 19 of 1907, shall not affect the rights of the parties, or the rightsof persons claiming title from or through them, to succeed toproperty “ according to the rules of Kandyan law. ”
The real question in this case, therefore, is What is the Kandyanlaw with regard to adulterine children? It is well known thatillegitimate children are not altogether excluded even from paternalinheritance. There is no exception found in the text books withregard to illegitimate children who are' also adulterine,- and this,
I think, is at least negative evidence that the Kandyan law did notexclude them. The Ordinance No. 3 of 1870, according to whichillegitimate children without qualification are legitimatized by thesubsequent marriage of the parents, appears to observe the spiritof the Kandyan law. There is no reported case to the contrary,though in the course of a century there must have been numerouscases involving this point. On the other hand, we are not whollywithout judicial guidance. In D. C. Kandy, 97,916,1 Dias J., whowas a judge of authority in this branch of law, was of opinion thatthe Kandyan law made no distinction between illegitimate childrenbegotten in adultery and merely natural children. In re Sunda,zWendt J., another judge of equal authority, made an observationto the same effect. See also Modder’s Kandyan Law, page 390,where it is stated as a general proposition that there is no suchdistinction. It is not irrelevant to point out that the social ideasof the community, which in matters of this kind is after all thebasis of the law, are not such as necessarily conflict with this viewof the law.
I think the learned Commissioner arrived at a right conclusion• in this case. The appeal is dismissed, with costs.
At peal dismiMed.«(1903) 7 N. L. R. 364. '
» S. O. Min., Aug. 12,1887.
PUNCHIRALA v. PERERA