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Present: Lasoelles C.J.RAN MENTKA v. MUDALIHAMY421—C. R. Regalia, 11,017.
Kandyan lata—Donation by mother of her acquired property to herchildren—Death of mother and children—Maternal grandmotherheir to property in preference to father.
A Kandyan mother married in bina donated her acquired propertyto her children. The children died intestate and issueless aftertheir mother.
Held, that the property devolved on their maternal grand,mother in preference to tbeir'father.
“ The father .is not the heir of the property of his children bom'in a bina marriage, which they have acquired through their mother;the maternal uncles or next of kin on the mother’s side being theheir to such property; but the father will succeed to such children’sproperty if otherwise acquired.”
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HIS was an appeal from the following judgment of the Com-missioner of Bequests, Kegalla (W. de Livera, Esq.):—
I have to decide in this case a question of Kandyan law. On theadmissions the following issue has been framed:—
“ When^ Punchi Banda and Punchi Appuhanad died, did theirfather, Menikrala, or their maternal grandmother, DingiriAmina, succeed to their inheritance.”
After a perusal of the numerous authorities quoted by counsel I findthere is a recognized difference in the social status of a bina husbandfrom that held by a diga husband, and there is a marked distinctionshown in the inheriting status of bina to diga husbands (7 N. L. R. 242).
A bina husband has no right to or interest in his wife's property,whether ancestral or acquired, after her death, whether she has leftchildren or not.
A diga husband succeeds to his wife’s acquired property when shehas left no children (2 S. O. G. 176), and^when she has left issue to alife interest therein. I would refer to C. R. Kegalla, 6,766, decided onAugust 24, 1906, appeal judgment February 22, 1906. In this casethe passages from Sawer’s Digest in pages 8 and 13 (Ondaatje's edition)are discussed. The passage in page 18 clearly states: “ The father isnot the heir of the property of his children bom in a bina marriage,which they have acquired through their mother. The maternal unclesor -next of kin on the mother’s side are the heirs to such children.”
In the passage in page 8 : “ The husband is heir to his wife’s landedproperty, which will at his demise go to his heir.”* I find a note inanother edition of SaWer, which Mr. Ondaatje has omitted in hisedition.
I find in the case reported in 9 S. G. C. 34 it was held that achild’s grandmother and uterine half-sister of the latter was preferredi to the bina husband. This is a Full Court judgment. The passagesfrom Armour do not apply; they refer to “ Jateke uruma.” Underthese circumstances, I answer the issue that the maternal grandmothersucceeded to the estate of Punchi Banda and Punchi Appuhami inpreference to their father Menikrala. I therefore hold that the defend-ant, the full brother of Dingiri Amnia, is entitled to the land, anddismiss the plaintiff’s action with costs.
The plaintift appealed.
Bawa, K.G., Acting. S.-G., for the plaintiff, appellant.—Thefather is the heir to the child’s acquired property under theKandyan law (Pereira's Armour 88). Of the two tables given by
Sawer, Table B applies to this case.
* Note.—This is the opinion of Doloswala Dissawa of Sabaragamuwa, butthe chiefs of the Udarata are unanimously of opinion that the husband is notthe heir to the wife's landed paraveni estate which she inherited from herparent nor of her acquired landed property. The moment the wife dies thehusband loses all interest in his wife’s estate, which, if she left no issue,reverts to her parents or their heirs. Though the wife is entitled to theentire possession of. her deceased husband’s estate so Tong as she continuessingle and remains in her house, the husband must quit bis wife’s estate themoment of her demise.
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According to Kandyan law, where a person dies unmarried,childless, and intestate, his acquired property devolves on hislather to the exclusion of his brother (Ranhotia v. Bilinda et ah1),li a brother was excluded, remoter relations on the mother’s sidewould have less right to succeed.
Dingiri Banda v. Kiri Banda 2 does not touch the point now underdiscussion.
Counsel cited Punchirala v. Punchi Menika; 3 Mudalyhamy v.Bandirala; 4 TJkkuhamy v. Bala Etana et al5 Modder 186 et Beg.
A. St. V. Jayewardene, for defendant, respondent.—Where themarriage is a bina marriage as here, the father is not the heir of theproperty of his children, which they have acquired through theirmother. Such property must go to the next of kin on the mother’sside.
Counsel cited C. R. Kegalla, 6,766;® Appuhami v. DingiriMenikaf Dingiri Banda v. Kiri Banda2
Bawa, K.G., in reply.
Gur. adv. vult.
January 27, 1913. Lascelles C.J.—
This appeal raises a rather obscure point in the Kandyan lawof succession. The propositi are Punchi Banda and PunchiAppuhami. The question is whether, on the death of these twopersons intestate in the lifetime of their father Menikrala, theirproperty devolved on their father, who is now represented bythe plaintiff-appellant, or, as the learned Commissioner has held, ontheir maternal grandmother Dingiri Amma.
The first step in .the inquiry is to ascertain the nature of theproperty, whether it is ancestral paraveni or acquired .property.On this there is no room for doubt. The property, which consists oflands, was the acquired property of Punchi Menika, the motherof the propositi, and she donated it to the propositi, reserving alife interest in half the lands in favour of her husband and of herown mother Dingiri Amma.
The character of the property is thus not open to doubt (videdefinition of the term lathimi in Armour, chaptet 6, section 1). Itis in the technical language of the Kandyan law “ acquired,” andnot ” ancestral ” paraveni, property. This being so, the questionat first sight would appear to, be readily determinable by the tablesgiven in the text books for the succession to acquired. property.Two tables of succession are given in different editions, of Sawer.Both are set out in Modder on pages 186 and 187. But in both
(1909) 12 N. L. R. Ili.*(1908) UN. L. R. 226.
(19U) 14 N. L. R. 510.6S. C. Min.t Feb. 22,1900.
» (1879) 2 S. C. C. 44.r(is89) 9 S. C. C. 84.
a (1898) 8 N. L. R. 209.*(1911) 14 N. L. R. 610.
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cases, on the death of the child intestate, his acquired property goes(1) to the mother, and (2) to the father, (3) to brothers and sisters ofthe whole blood, (4) brothers and sisters uterine of the half blood.There is some difference between the two tables as regards thesubsequent order of succession, but thiB is not material to thequestion under consideration. Thus, according to the general ruleBof succession, the plaintiff, as representing the father of the propositi,their mother being dead, would appear to be entitled to succeed,and this was the view to which I was inclined at the close of theargument. Further consideration, however, has convinced methat this opinion is not right.
I have been referred, amongst other authorities, to Ranhotia v.Bilinda et al.1 and Ukkuhamy v. Bala Etana et al.,2 but these casesare merely examples, where the Courts have followed the generalrules of succession laid down in the text books for the devolution ofacquired property on the death of a son or daughter intestate.They do not touch the point on which the Commissioner has decidedthe case. (
The learned Commissioner bases his judgment on a principle ofKandyan law,: which forms an exception to the general rule ofinheritance. It is thus enunciated by Sawer (p. 14): “ Thefather is not the heir of the property of his children bom in a btnamarriage, which they have acquired through their mother; thematernal uncles or next of kin on the mother’s side being the heir tosuch property; but the father will succeed to such children’s propertyif otherwise acquired.”
There can be no doubt with regard to this exception to the ordinaryrule of inheritance. It is reproduced by Marshall (p. 344) amongstthe other rules of succession. (Vide also Modder 65). Nor can therebe any doubt as to the applicability of this rule to the present case.The property here was clearly “ acquired through their mother."
The appellant’s case, as shown by paragraph 7 (iii.) of his petitionof appeal, is based on the authority of the following passage inPereira’s Armour (p. 77): “ But if the child, albeit the issue of abtna connexion, had remained under the father’s care after themother’s demise, in that case the father will be entitled to a reversionof the child*8 estate in preference to any child’s distant maternalrelations (mother’s granduncle's son for instance), and that whetherthe father was or was not also an *ewessa cousin of the said child’smother.”
This apparent conflict between Sawer and Armour was discussedby the Collective Court in Appuhami v. Dingiri Menika 3 (which .wasa case of ancestral paraveni property), with the result that theopinion of Sawer was followed and Sir Charles Marshall’s view was
i(1009) 13 N. L. B. 111.
* (2889) 9 5. C. C. 84.
* (1908) 11 N. L. R. S28.
Lawrie J., in C. B. Kurunegala 4,944,1 seems to have had somedoubts as – to • the correctness of this decision. But the decisionof the Collective Court on the relative values of the conflictingauthorities is binding on me, and in any case I could not haveheld that the passage in Armour was applicable to the facts ofthe present case. As a matter of construction, I should have heldthat it was applicable only to cases where the claimants in thematernal line stood in a more-remote degree of relationship tothe propositus than that of great aunt.
For the above reasons, I think the judgment of the learnedCommissioner is right, and I dismiss the appeal with costs.
RAN MENIKA v. MUDALIHAMY