033-NLR-NLR-V-12-RANHOTIA-v.-BILINDA-et-al.pdf
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Present: The Hon. Sir Joseph T. Hutchinson, Chief Jusfcioe,and Mr. Justice Grenier.
RANHOTIA v. BILINDA et al.
D. G., Kandy, 18,662.
Kandyan Law—Acquired property—Bights of father and brother ofdeceased.
Accortliug to Kandyan Law, where a person dies unmarried,childless, and intestate, his acquired property devolves on his fatherto the exclusion of his brother.
A
CTION rei vindicatio. The facts are stated in the followingjudgment of the District Judge (F. R. Dias, Esq.) (May 18,
1908):—
“ The plaintiff in this action is claiming title to a half share of acertain land, alleging title as sole heir-at-law. of his brother Singa,who died unmarried and intestate in 1887. The defendants andadded parties are the step-mother and step-brother of the plaintiff.Admittedly, the plaintiff has never had a day’s possession of thisland, and his right entirely depends-on the answer to the questionwhether he, as the only brother of the owner Singa, was under theKandyan Law his heir-at-law to the exclusion of his father Sarana.
“ The facts of the case are these. One K. Sarana was first marriedto a woman named Singu, by whom he had two children, Singa andthe plaintiff. In 1878 this land was purchased under the deed P 1in the joint names of Sarana and Singa (father and son), so that eachbecame entitled to a half. Singa died in 1887, his mother Singuhaving predeceased him, and the father Sarana possessed the entireland and dealt with it as his own. After Singu’s death Saranamarried the first defendant, by .whom he had three children, thesecond defendant and the two added parties. In 1893 Saranaleased the whole and in perpetuity to one Ukkuwa, and afterpassing through two or three other hands, the first and seconddefendants took over an assignment of that lease in 1901, and havebeen in possession ever since. It will thus be seen that the rightsclaimed by the first and second defendants are not derived by themas heirs-at-law of Sarana, but as successors in title to his lease.
“ The question which arises on these facts is, whether Sarana wasentitled to deal with the whole land as his own after the deatii of hisson Singa in 1887. In my opinion he was. According to 'Armour'sKandyan Law, pp. 88, 89, the mother is heiress to the acquiredproperty of all kinds left by a child who dies unmarried, childless,and intestate, and such property is entirely at her disposal, and if
1909.
May 3.
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1909. the mother had' died previous to the demise of her child, thenMay 3- the father will be entitled to the reversion of the deceased child’sacquired property.
“ The plaintiff’s counsel cited what appears to be a contrary viewof the Kandyan Law on this point appearing in page 344, section 96,of Marshall's Judgments (Sawer's Digest, p. 13), where it is said thatif a person die childless, but leaving parents, brothers, and sisters,the property which the deceased received’from his parents revert tothem respectively, and his acquired property, whether land', cattle,or goods, also goes to his parents, but only the usufruct of it. •
‘ ‘ These opinions, are undoubtedly in conflict, and for the reasonsgiven by Layard C.J. in T. Sangi v. T. Mohotta,’ I prefer to followthe. opinion of' Armour in preference to that of Sawer or Marshall.Hence in that view of the law I must hold that on Singa’s death in1887 (his mother having predeceased him) his father Sarana becamesolely entitled to this land, which was acquired property, to theexclusion of the plaintiff.
“ On the question of prescription, too, that has been raised, theplaintiff must fail. He brought this action in August, 1907, andalleges in his plaint that he was a minor till ten years previously, •that is, till 1897. Tim is, however,, proved to be not true, for hewas married in 1894 at the age of twenty-three years. His cause ofaction is therefore clearly prescribed, as it is admitted that Sarana’slessees and their assignees have been in continuous possession eversince October, 1893. It was suggested .on behalf of plaintiff that noprescription would run against him', till‘his right to possession hadaccrued to him, namely, on the death,of his father Sarana in 1907-That is quite a new idea, as the plaintiff came to Court on the footingthat he was absolutely entitled to a half of'which the defendantshad got into wrongful possession five years ago. As I have heldbefore, it was not a mere'usufruct that Sarana had but absoluteownership, and nothing vested in plaintiff on Sarana’s death. Idismiss the plaintiff’s action with costs.”
The plaintiff appealed.
Wadsworth (with him F. J. de Saram), for the plaintiff, appellant.
E. W. Jayewardene, for the defendants, respondents.
Cur. adv. vult.
May 3, 1909. Grenier J.—
This was an action by the plaintiff to be declared the owner of anundivided half share of the land called Hal'gangalehena, 1 amunamin extent, and more fully described in the first paragraph of theplaint. The plaintiff claimed title as sole heir-at-law of his brotherSinga, who died unmarried and intestate in 1887.
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The following facts appear to have been admitted by both sides 1909-in the Court below. One K. Sarana, who was the father of Singa May 3.and of the plaintiff, was first; married to a woman named Singu. GreniebO-Sarana and Singa purchased the land in question in 1878 underdeed P, each of them thus becoming entitled to a half share. Singadied in 1887, his mother Singu having died before him. AfterSingu’s death Sarana married the first defendant, by whom he hadthree children, the second defendant and the two added parties.
In 1893 Sarana leased the whole land to one Ukkuwa in perpetuity,and the first and second defendants took an assignment of that leasein 1901, and have been in possession ever since.
The District Judge framed the following issues
Was the plaintiff the heir-at-law of Singa ?
Is the plaintiff’s cause of action prescribed ?
The plaintiff relied upon a passage from Sauxr's Digest (p. 13),where it is said that if a person die childless, but leaving parents,brothers, and sisters, the property which the deceased received fromhis parents reverts to them respectively, and his acquired property,whether land, cattle, or goods, also goes to his parents, but only theusufruct of it.
The plaintiff’s contention therefore was that on his brotherSinga’s death, his acquired property did not go absolutely to hisparents, but his parents were entitled to the usufruct of it. Itis admitted that the property in dispute was Singa’s acquiredproperty, and if Sawer’s statement of the law be correct, then theplaintiff’s contention is right, and he is entitled to succeed in thisaction. But we were also referred to a statement of the law to befound in Armour, pp. 88-89, where it is said that the mother isheiress to the acquired property of all kinds left by a child who diesunmarried, childless, and intestate, and such property is entirely ather disposal, and if the mother had died previous to the demise ofher child, then the father will be entitled to the reversion of thedeceased child’s acquired property.
It will thus be seen that there is a direct conflict between Sawerand Armour in regard to the question whether the acquired propertyof a son goes to the father or to the brothers and sisters. Accordingto Armour, whep both father and mother are alive, and one of theirsons dies unmarried, childless, and intestate, his acquired propertygoes absolutely to the mother to the exclusion of the father, and itis only in the event .of the mother having predeceased her son thatthe father becomes entitled to the property. I need hardly say thatArmour'8 opinion is not based upon any positive rule of the KandyanLaw to be found in any standard authority on the subject, nor'isSower's opinion, on the other hand, based on any such authority.
But dealing as we are with a system of primitive. law and customsuch as obtains amongst Kandyans, I am inclined to think that the
1009.May 3.
Gbenjer .T.
District Judge was rigP in following the opinion of Armour ratherthan of Sower. It seems to me consistent with natural justice thatthe acquired property of a son should go to the father rather thanto the brothers. In most primitive communities a father is con-sidered the head of the family, and whatever a son acquires, hegenerally acquires as a result of the assistance and help of his father,and therefore it seems right to me that in case a son dies unmarried,childless, and intestate, his acquired property should go to hisfather to the exclusion of his brothers.
As regards the question of prescription, I am of opinion that theplaintiff is not entitled to succeed, because it was not a mere usufructthat Sarana had, but the actual dominium, and nothing vestedin the plaintiff on Sarana’s death. The appeal must be dismissedwith costs.
Hutchinson G.J.—I concur.
Appeal dismissed.