028-NLR-NLR-V-10-RANHAMI-v.-MENIK-ETANA.pdf
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Present : Sir Joseph T. Hutchinson, Chief Justice, andMr. Justice Wendt.
EANHAMI v. MENIK ETANA.D. C., Kandy, 17,396.
Kandyan Law—Rights . of illegitimate children—acquired property—*
Rights of mother and brother and sisters.
Where a Kandyan died intestate leaving him survivinghis
mother, and brother and sisters, and an illegitimate child,'—
Held, that the illegitimate child waa entitled to* succeed to theintestate's acquired property in preference to intestate's motherand brother and sisters, subject to the life interest of – the widowif any.**
Judgment in review in Re the Estate of Sundam (1) followed.
T
HE facts of the case are fully set out in the following judgmentof the District Judge (J. H. de Saram, Esq.): —
“ This is a case involving a question of Kandyan Law as to theright of an illegitimate child to succeed to her father's acquiredproperty. « The lands in question belonged to Wattegedara Appu*Naide, to #hoin they were gifted by his adoptive father and mother,his uncle, and aunt. He died a short time ago, leaving, a^is alleged,an estate below the value of Bs. 1,000. The value of the estate isnot in issue. He has no legitimate issue. The first defendant, whodied after the institution of this action, is his mother; the second
(1) (1907) 10 N. L. R. 129.
1907.
March 18-
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1907. defendant ia his brother; and the third, fourth, and fifth defendantsMarch 18 are his sisters. The defendants deny that the plaintiff is the childof Appu Naide. The evidence as to the plaintiff’s paternity is all oneway. I hold it well proved that she is the illegitimate child ofAppu Naide. The property being Appu Naide's acquired property,the question is, Who is entitled to the dominium of it? Theillegitimate child, or the intestate's brother and sisters? I can onlyrepeat what I have said in the action No. 15,657 of this Court, inwhich I have to-day pronounced judgment. The question hereinvolved is the same as in that action.
" The right of a near relation, such as a sister, to succeed to thedeceased’s acquired prpperty in preference to an illegitimate childwas recognized by the Full Court in Re the Estate of Sundara,deceased (1). In the present case there is a brother as well assisters. A brother stands on the same footing as a sister. They are.all stumbling blocks to the plaintiff succeeding.
“ There is no widow in thi§ case, as there was in the case of Mahat*maya v. Banda (2). When Lawrie A.C.J. said in that case that itis well-established Kandyan Law that, provided there be no. legiti-mate children and no widow, illegitimate children succeed to thewhole of the acquired property of the father, I think he meant thatthe rights of the illegitimate children remain in abeyance during thelifetime of the ; widow. That must be.so, for His Lordship, with hisknowledge of Kandyan Law, that a widow’s rights are those of alife renter only, could not possibly have meant that the widow hasan absolute right, and would exclude * illegitimate children, whenlegitimate children, who have a permanent right, could not excludethem. Adopting this suggestion, His Lordship's judgment is quitereconcilable with previous judgments. As I said in the actionNo. 15,657, I respectfully venture on the expression of this sugges-tion because of what was stated at the hearing of that action■regarding His Lordship’s judgment.
“It is good Kandyan Law that when a deceased father leftboth legitimate and illegitimate children, the latter are entitledonly to one-half of the acquired property. [Niti Nigh pp. 15, 17,and 108, D: C., Kandy, 721 (3)]. By illegitimate children I meanonly children, as in the present case, born by a woman who wasliving with a man as his wife, and not the issue of a casual or secretconnection. In the action.No. 721 (3) of this Court referred to byLawrie A.C.J., the widow and legitimate child were the. plaintiffs,* and the illegitimate child the defendant. The legitimate child died'during the pendency of the action. His mother was held entitledto half the deceased’s acquired property by daru urume, and theillegitimate child to the other half.
A
(1) (1903) 7 N. L. R. 364.(3) S. C. Min., March 11, 1842.
'(2) (1893) 2 S. C. R. 142.
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•* la Re Estate of Sundara, deceased (1), if I read Wendt J.'s judg-ment rightly, His Lordship was influenced by Lawrie A.C.J.'sjudgment reported in Mahatmaya v. Banda (2), that if there be nolegitimate children and no widow, the illegitimate children succeedto the whole of the acquired property of the father; but, as I havesaid, IHis Lordship the Acting Chief Justice only meant
that tire rights of the illegitimate children remained in abeyanceduring the lifetime of the widow.
“ Mr. La Brooy said Mr. Justice Wendt rested his judgment onthe fact that the widow was alive, and not on the ground that asister would stand in the way of the illegitimate, children. Thatis not so. This is what His Lordship said when considering therights of the parties to the intestate’s estate:* The great bulk of
his estate consisted of lands “ acquired ’’ by him, and the contestrelates to these lands. His ancestral lands admittedly devolved onthe sister, and .have been conveyed to her by Ukku, who is theadministratrix. It is also admitted that Ukku, as widow, has alife interest in the acquired lands. The question is, Who is entitledto the dominium of these lands, the illegitimate children or thesister? The District Judge rightly held that any claim of the widowto the dominium (which, according to Pereira's Armour, p. 23, couldonly prevail against her husband’s “ more distant relations, paternalaunt’s children, for instance ’’) was excluded by the existence of thesister, and the widow has not appealed.*'
“ There is a distinct expression of opinion as to the rights of thesister, and, as I have said, a# brother stands on the same footing as aaster. Then, if I understand Middleton J.’s judgment correctly,he starts with the proposition that under Kandyan Law a purelyillegitimate child might not share in his father’s acquired property,but that only purely illegitimate children bom under the circum-stances mentioned in section 2 of page 34 of Armour might succeedto his acquired property. This, he said, would exclude all offspringof casual intercourse or of a woman maintained in another house.TTis Lordship then, goes on to say on page 372, if there are no legiti-mate children, nor an adopted child, nor parents, nor any nearrelations, the widow by lat-himi right- succeeds to the possession of'the deceased’s entire estate, including paraveni lands (Armour, s. 26,p. 22), and he added that by the last paragraph of the same, section,page 23, if the deceased without issue has survived his parents,,brothers and sisters, and their children, the widow is given an abso-lute lat-hiyii right of acquest to such lands as belonged to the-deceased, which he did not derive by inheritance.
M If therefore (Middleton J. said) there were a sister of thedeceased, living, as there was in that case, that would bar the widow’sabsolute lat-himi right to the acquired property, and if there were 1
(1) (1903) 7 N. L. R. 364.(2) 0893) 2 8. C. R. 142.
1907.
March 18~
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1907. no sister.! the widow’s absolute laUhimi right would bar the illegiti-March 1.8. mate children! and therefore illegitimate children were in that case, inhis opinion, barred both by the widow and the full sister, andcould not inherit any part of their father’s acquired land under -theold Kandyan Law.
, “ Layard C.J. (page 373) thought Mr. Baumgartner, who decidedRe Estate of Sundara, deceased, was right in following the judgment•of-the Supreme Court in Mahatmaya v. Banda (1). I humbly andrespectfully think that my interpretation of Lawrie A.C.J.’s opinionin Mahatmaya v. Banda (1) is correct, and that, according to Kan-dyan Law, a widow or a brother or a. sister of the deceased does notbar the right of illegitimate children to their father’s acquired property.Whatever m; own humble opinion may be, I am bound by theirLordships* decision in Re Estate of Sundara (2), near relatives suchas a brother and sisters stand in the way of the plaintiff succeeding.
“ The plaintiff’s next friend should have been advised to wait thedecision of Re Estate of Sundara, deceased, before instituting this .action. Nothing was to be gained by rushing into Court-whenplaintiff did.
“ I dismiss this action with costs.”
The plaintiff appealed.
Bawa, for the plaintiff, appellant.
Van Langenberg, for the defendants* respondents.
Cur. adv. vult.
18th March, 1907. Hutchinson C.J.—
*
This is an appeal by the plaintiff from a judgment of the District{Jourt of Kandy. Appu Naide died intestate in 1905, leaving uowidow and no legitimate issue. The plaintiff is his illegitimatetchild by a woman with whom he lived as his wife, but to whom hewas not married. The defendants are his mother (who has died sincethe commencement of the action) and brotherr and sisters. Hewas at that time of his death entitled to lands which he had acquired,situate in the Kandyan district. The defendants are in possession.>of those lands. This action is brought by the plaintiff to recoverpossession; and the question is, whether the plaintiff, the illegiti-mate child, is entitled by Kandyan Law to succeed to the intestate’sacquired lands in preference to the mother and brother and sisters.
< The* District Judge held that he was bound by the opinionexpressed by the Supreme Court in Re Estate of Sundara (2), anddecided tjiat the plaintiff was not entitled. All that was decidedin that case was that the illegitimate child, was not entitled whenthe intestate had left a widow. The case has lately been heard in
(1) (1893) 2 S. C. R. 142.(2) (1903) 7 N. L. R. 364.
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review, andaI have given judgment in review holding that the deci* le-sion was based on a misunderstanding of a dictum of Lawrie, A.C.J., March 18.in Mahatmaya v. Banda: (1), and was erroneous, and that by Kandyan HutchinsonLaw the illegitimate child is entitled to inherit the acquiredlands of its father, subject to the widow's life interest, if any, andsharing with the legitimate children, if any.
The respondents have, however, contended that in such a caseas this the intestate's mother is entitled to his acquired property,relying on a passage in Sawer’s Digest, p. 17, to the efEect that“ the mother is entitled to all her son's acquired property if hedied without widow or issue." But inasmuch as illegitimate areentitled equally with legitimate children to the acquired lands, theword " issue " in the passage from Sawer must include both legiti-mate and illegitimate issue.
In my opinion, therefore, the judgment appealed from ought tobe set aside, and judgment entered for plaintiff for recovery ofpossession of the property claimed in the plaint, with costs in bothCourts.
Wendt J.—
This is a contest between the intestate's infant illegitimatedaughter (the plaintiff) and his mother (first defendant) and brothers{the other defendants)' as to the succession to his acquired: lands.
The decision in this case was from time to time postponed pendingour hearing in review the case of Re Sundara (1), which is in point.Eventually the learned District Judge, although his own opinionwas in plaintiff’s favour, held himself bound by the decision in thatcase and dismissed the action. Since the argument of the presentcase, we have considered Re Sundara . in review (2), and I haveexpressed the opinion that my view of the law therein was erroneous.It follows that the present plaintiff succeeds.
I agree with the Chief Justice in reading the words " withoutissue " at pageE*17 of Sawer (edition of 1860) as meaning “ withoutissue, legitimate or illegitimate."
The appeal will therefore be allowed, with damages as agreed atthe rate of -Rs. 10 per annum from the date of action, and costs ofsuit in both Courts.
Appeal allowed.
fl) (1903) 7 N. h. R. 364.
(2) (1907) 10 N. L. J*. 129.