112-NLR-NLR-V-57-RAN-MENIKA-Appellant-and-NANDOHAMY-et-al-Respondents.pdf
1956I'rcsf-vl : Basnayake, A.C.J., and Weerasooriya, J.
JtAN MKXJK.A. Appellant. and NANDOHAMY H of.. RespondentsS'. O. 227—D. C. Kuntnegtda (fnty.) 482011',
Kandyan Low—I Hey it i mate dauyhlee married in diga—Forfeiture of riyht to inheritfather's acquired property—Kandyan Lair Declaration, and AmendmentOrdinance, -Vo. til) of t'diS. xs. 12. /-•; (r)..
Section 15 (c) of the Kandyan haw Declaration ancl Amendment Ordinancodocs not enable a diya married illegitimate daughter to have a right of inheri-tance to her father’s acquired property.
Where a Kandyan died intestate leaving legitimate children and also anillegitimate daughter who was married in diya—
Held, that the illegitimate daughter had no right of inheritance to her father’sacquired property.
A.-.
-CjLPPFAL, from a judgment of the. District Court, Kuruncgnla.
C. 11. Guneralne, for 2nd respondent-appellant.
H. II . Jayeuardene, Q.C., with T. 11. Di.ssaunyal.-e, for petitionerrespondent.
C 'ttr. adv. vttll.
February' 16, 1956. Bassayake. C-.J.—
The only' question that arises for determination on this appeal iswhether a tliga married illegitimate daughter forfeits her right to inherit-her father’s acquired property' in consequence of her marriage in diga.
Shortly the facts are that one Soliondirala whose estate is being adminis-tered by the petitioner, his binna married daughter, left two childrenby' his marriage, the petitioner and the first respondent, a daughter whomarried in diga in 1924. He also left a"n illegitimate daughter whomarried in diga, in 1921 j the second respondent-,'(hereinafter referred toas the appellant).
The learned District Judge has held that the first respondent and theappellant having married in tligct have forfeited their rights to the inheri-tance and that the petitioner alone is entitled to the property left.bySohondirala. …..•;
Learned Counsel for the appellant Avliile conceding the correctness ofthe learned District Judge’s decision in regard to the first respondent,contends that the learned District Judge was wrong in law when he heldthat the illegitimate daughter who married in dig a forfeited her rights.He contends that in Kandyan Law an illegitimate daughter does not bymarrying in diga forfeit her rights to her father’s acquired property.
He submits that, as Sohondirala died in 1950 after the Kandyan LawDeclaration and Amendment Ordinance Ko. 39 of 193S (hereinafterreferred to as Kandyan Law Ordinance) came into operation, he wouldbe entitled to claim tIre benefit of section 15 (c) of that- Ordinance, as thedeceased intestate had registered himself as the father of the- appellantwhen registering her birth. That section reads—
‘■'When a man shall die intestate after the commencement of tliisOrdinance leaving an illegitimate child or illegitimate children—
(o) such child or children shall have no right of inheritance in respectof the paraveni property of the deceased :-
such child or children shall, subject to the interests of the
• surviving spouse, if any, he entitled to succeed to the acquiredproperty of the deceased in the event of there being no legiti-mate child or the descendant of a legitimate child of the-deceased;.
any such child shall, subject to the interests of the surviving
spouse, if any, be entitled to succeed to the acquired propertyof the deceased equally with a legitimate child or the legiti-mate children, as the case may be—
if the deceased intestate had registered himself as the
father of that child when registering the birth of thatchild ; or
if the deceased intestate had in his lifetime been adjudged
by any competent court to be the father of that childIf the appellant had remained unmarried or had contracted a marriagein binna, there would have been no question of her right to share inthe succession to her father’s acquired property. But having marriedin tliga she cannot escape the consequences of such a marriage which arethus stated in Armour’s Grammar of Kandyan Law (Percra’s edition),p. 30—;
“ A daughter will be incapacitated from inheriting landed properlyfrom her father by being given away in Dcega marriage by her father—
■ it being premised that she remained settled in Decga until her father’sdeath, and that her father left other issue a son, or a daughter settled* in the father’s house in Beena ".-,
This statement of the.law of forfeiture of the right to inherit the landedproperty- of the father has been consistently affirmed by this Court.The appellant lost her right to share in the inheritance of her father’sacquired property as ait illegitimate child by being given in marriage in
diga anil remaining so settled until Iier putative father's death andis therefore not entitled to succeed in her claim. Section 15 of the Kaluga 11Law Ordinance docs not- have the effect of restoring the rights that werelost when she married in diga. '
Learned Counsel has also argued that while section 13 of the Ordinanceprescribes how' children of two or more marriages shall inherit the propertyof their father it docs not state the rule of inheritance governing a casewhere a man dies intestate leaving legitimate as well as illegitimatechildren.*
He submitted that the rule in such a case, according to Kandyan Law,was that the legitimate children took cue nmicly and the illegitimatechildren the other. The rule of inheritance submitted by Counselhas the authority of the decisions 1 of this Court.
The question then is whether the appellant forfeited her rights to theinheritance by her marriage in digu. Learned Counsel submits that shedid not. He relics on the rule of Kandyan Law that a diga marriagedoes not result in a Forfeiture if the daughter were the only child of aman’s first, or second, or third marriage.
He contends that the rule is capable of extension to illegitimatechildren ; but has cited no authority in support of the proposition.The rule on which Counsel relics has the authority of this Court 2 and ofsuch writers as Armour and Snleers3 but there is no authority orjustification for the extension of that rule to children who are not childrenof a marriage.-
It is not claimed that the appellant is a child by the deceased intestate'smarriage and the rule of forfeiture will therefore prevail as the appellant,cannot bring herself within its exception.
The ajipeal is accordingly dismissed with costs.
Wkekasoojuva. J.—
I have nothing to add to the- judgment of 3Ij' Lord the Chief Justiceexcept in regard to the point urged by 31 r. Guneratne on the basis ofthe ride of Kandyan Law that on a man dying intestate and leavinglegitimate as well as illegitimate children, his acquired property is dividedinto two moieties of which one would be shared by the illegitimatechildren. It seems to me that section 15 of the Kandyan Law Declarationand Amendment Ordinance, Xo. 39 of 193S, has brought about a substantia Ichange of the law in this respect. Paragraph (c) of that section providesthat the illegitimate child or children referred to therein shall be entitledto succeed to the acquired property of the deceased equally with hislegitimate child or children. In a ease to which that Ordinance applies,the position therefore would be that there is no separate moiety whichdevolves on the illegitimate child or children, and there is, accordingly,no room for the application of the principle relied on by Ur. Guneratnethat in the absence of any other representative in the illegitimate line
Appuhami r. La pay a tlOOS) S330—O. C. Oct., Kandy 20303,
1 7/i tc Sundara, deceased 11007) 10 »V. 13. R. 129;-V. D. R. 323.
Ranchi Mcniha v. I’ciinchoongcderc (1313) Morgan•' -(/Sol) Austin 122.
'Armour 63, 71, 73, Sutccrs 3.
to inherit that moioty it would fall to an illegitimate daughter who hascontracted a diya marriage, even though she may. otherwise haveforfeited her right of inheritance to her father’s acquired property.
I agree that the appeal should be dismissed with costs.
.-1 ppcal dismissed.