RANKIRI v. UKKU

026-NLR-NLR-V-10-RANKIRI-v.-UKKU.pdf


(. 129 )
[In Review.]
Present: Sir Joseph T. Hutchinson, Chief Justice, Mr. JusticeWendt, and Mr. Justice Middleton.
1907.March 18.
Re Estate of Sundaba, deceased.
RANKIRI v. UKKU.H. C., Kandy, 2,061.
Kandyan Load—Acquired property of intestate—Rights of illegitimate
children—Rights of widow and sister of deceased.
WhereaKandyandiedleavingacquired propertyand leaving*
him surviving his widow Ukku, a sister Bankiri, and illegitimatephiMranbya womanwithwhom helived duringthesubsistence of
his marriage with Ukku,—
Held (byHutchinson C.J.and Wendt J., dissentiente Middlb-
TON J.)thatthe illegitimate childrenwere entitledtothe said pro-
perty in preference to the deceased's sister, subject to the life interestof the widow.
HutchinsonO.J.—By the Kandyan Law an illegitimatechild
is entitled to inherit the acquired lands of its father, who dies intes-tate, subject to the widow's life interest.
Middleton J.—The right of illegitimate children to succeed totheir father’sacquired property (depends (1) on the casteoftheir
mother,and(2) onthecircumstances' attendantonthe relation-
ship between the mother and the father.
Judgmentof the Supreme Court in appeal reversed inre-
view.
H
EARING in review of the judgment of the Supreme Courtreported in 8 N. L. R. 82 preparatory to an appeal to His
Majesty in Council.
Van Langenberg (F. J. de Saram with him), for the appellants.
Sampayo, K.C. (Bawa and H. Jayewardenc with him), for therespondents.
Cur. adv. vtdt.
18th March, 1907. Hutchinson C.J.—
■>
This is a hearing in review before appeal to His Majesty in Council..The appellants are the illegitimate children of Sundara. * Sundaradied in 1898 intestate, possessed of certain acquired lands in theKandy ail district; and the question is whether the appellants haveunder the Kandyan Law any right of inheritance to those lands.
5J. N. A 90907 (8/50)
( 130 )
1007. Sundara left surviving him his lawful widow Ukku and his sister.
' •^arcA 18* D. Rankiri, but no legitimate issue. The appellants are his childrenHutchinson by a woman with when he lived during the subsistence of his mar-
O.J. riage with Ukku. It is admitted that his sister is entitled to hisinherited lands, and that his widow is entitled to a life interest in hisacquired lands; and the contest fs, whether his sister or his illegi-timate children are entitled to succeed to his acquired lands,subject to the widow's life interest. The District Judge and theSupreme Court have held that the sister is entitled.
The authorities of Armour, p. 34, Sawer, p. 7, and the Niti Nig-handuwa, p. 14, have been quoted at length in the judgments underreview, and I need not quote them again. They are not very clear asto the rights of illegitimate children, and I must examine the/reportedcases on the points which have been decided in the Supreme Court.
In the case reported in Austin, p. 147, decided by the CollectiveCourt in 1856, the plaintiffs claimed the acquired lands of theintestate as his sisters and sole heirs; the defendant claimed them ashis widow for herself and for her son by him. It was proved thatshe was not his widow, and that the son was illegitimate. The Courtbelow held that “ although the 'defendant was not married to htfn,yet by Kandyan Law the issue of such a connection as subsistedbetween Ferera and defendant would be entitled to inherit all hisacquired property. ” The judgment was affirmed. The reasonsare not reported.
In Mahatmaya v. Banda (1) the plaintiffs sued in detinue for themovables (assumed to have been acquired) of the deceased, whodied unmarried and intestate. The plaintiffs were his illegitimatechildren. The defendant was in possession, and merely denied theplaintiffs’ right. The Supreme Court held the plaintiffs entitledto succeed. Lawrie A.C.J. said:“It is well-established Kandyan
law that, provided that there are no legitimate children and nowidow, illegitimate children succeed to the whole of tile acquiredproperty of their father. ” Withers J. said:“ The issue is, Are the
plaintiffs, as illegitimate children of the intestate, entitled to haveand keep those movables as their own? This is a pure question oiKandyan Law, which would be answered adversely to the plaintiffsif there was proof of a legitimate widow of Ukku Banda now being
aliveAs it is, it must be answered in their favour.
And Withers j. agreed to the judgment for the plaintiffs. Here theexpression of opinion as to what would have been the fdecision ifthere had been a widow is only an obiter dictum, perhaps onlymeaning that the plaintiffs could not have succeeded in that action,which was for detinue, if a widow had been living.
In Kiri Menvka v. Mutu Menika (2) K B and M R were brothers;the plaintiffs were illegitimate children of K B and. their mother;
(1) (1893) 2 S. C. R. 142.(2) (1899) 3 N. L B. 376.
( 181 )
and they claimed to inherit his acquired property as against the law- 1®97.fill children of M R. The only question was whether the property ^qro* *8-was paraveni or acquired. It was agreed that if it was acquired, the Hutchinsonplaintiffs were entitled to judgment; and the Court held that it wasacquired, and gave judgment for the plaintiffs. It seemed that K Bdied intestate and unmarried.
In Re Estate of Sundara (1) (which is the case with which we arenow dealing), the issue on which the Court decided was:“ Are the
illegitimate children entitled to any share in the acquired propertyof the intestate when his sister and widow have survived him?*1 TheDistrict Judge decided against the illegitimate children; the appealcame on for hearing before two Judges, and was ordered (presumablybecause the Judges differed) to be reserved for a Full Bench; andit was accordingly argued before Layard C.J. and Wendt and Middle-ton JJ. Wendt J. said:" The District Judge rightly held that the
opinion of Lawrie J. in Makatmaya v. Banda was sufficient authorityfor deciding against the appellants, inasmuch as the intestate left awidow; and I think his judgment ought to be affirmed. " LayardC.J. and Middleton J. concurred for the same reason. They allagreed in disapproving of the opinion of the District Judge that anillegitimate child cannot now, under any circumstances, inherit anyinterest in its father's estate, referring to his opinion that, " evenif the Kandyan Law conferred such a right, it was swept away bysection 26 of the Kandyan Marriage Ordinance, No. 3 of 1870."
In Appuhami u. Lapaya (2) Babaya died intestate, leaving(apparently no widow but) 'one legitimate son, Horatala, and theillegitimate child of another son, who had predeceased him. WendtJ. held that Horatala was entitled to one-half of the intestate’si acquired land, and the illegitimate grandchild to the otherhalf- In his judgment he says that the often-quoted words fromArmour " imply that a widow or legitimate issue would exclude theillegitimate children from inheriting the acquired lands. The oldauthority, Sawer, does not support this view; " and then he quotesSawer and the Nilfc Nighanduwa, which, he says, " give no counten-ance to the statement that a widow or legitimate children wouldexclude the illegitimate children."
In my opinion these authorities decide' that by Kandyan Law anillegitimate child is entitled to inherit the acquired lands of itsfather who dies intestate as to those lands, subject to the widow’slife interest if any, and sharing with the legitimate children if any.
By an illegitimate child I mean his child by a woman whom he kept ’or lived with as his wife without being lawfully married to her;and perhaps it should also be shown that he recognized tho child ashis, although that point has not been argued, and therefore I will notexpress an opinion on it.
a) (1903) 7 N. L. R. 364.(2) (1905) 8 N. L. R. 328.
1907.
March 18.
Hutchinson
<Gj.
( 132 )
I think, therefore, that this Court should set aside the judgmentunder review, and declare that the appellants, D. Horatala and D.Wemali, are entitled to the acquired lands of the intestate, subjectto the life interest of his widow therein, and that the administra-trix-should be ordered to administer the estate in accordance withthat declaration; and that D. Bankiri should be ordered to pay the■costs of the appellants in the Courts below and of this hearing inreview
Wendt J.—
The present is a hearing of this case in review, preparatory to anappeal to His Majesty in Council, against the judgment pronouncedby the late Chief Justice Sir Charles Layard and my brother Middle-ton and. myself on 1st October, 1903, where we decided that theappellants inherited no share in* the acquired lands of the deceasedSundara, whose illegitimate children they were. That decision isreported in 7 N. L. R. 364.
The facts may shortly be stated thus. Sundara, a KandyanSinhalese man, died intestate possessed (among other property) oflands which were “ acquired " within the meaning of the KandyanLaw, and he was survived by a widow Ukku (now administratrix ofhis estate), by his sister D. Bankiri, and by the two appellants,his illegitimate children, bom him by a woman named H. Bankiri■during the subsistence of his marriage with Ukku. The parties areagreed that the inherited ancestral landa of Sundara have devolved'absolutely on his sister, and that the widow has a life interest in theacquired lands. The question is, whether, subject to that life'interest, the dominium in those acquired lands has descended onthe sister or on the appellants.
The District Judge, in the first instance, held that, assuming theillegitimate children might otherwise have succeeded to theirfather's acquired property, they were excluded by the existence ofa lawful widow, as decided in Mahatmaya v. Banda (1). He alsoheld that the children designated “ illegitimate ” by the writers onKandyan Law, and given an interest in their father's estate, werethe issue of a man’s actual marriage Xas marriages went in Kandyantimes) with a woman of inferior caste; and that the appellants werenot such issue, their mother not having even been treated as awife, nor maintained in Sundara’s own house.e
In this Court the appeal of the present appellants was dismissed.We thought the District Judge was right in following Mahatmaya v.Banda, and holding that the existence of the widow excluded theIllegitimate children, and considered it unnecessary to decide thefurther question whether appellants were such illegitimate children as
(1) (Xm) 3 8. C. R. 143.
( 133 )
the law called to any share in the succession. We, however,expressed the view that the law giving that right to all illegitimatechildren without distinction was too well settled to be disturbed.At the present argument in review this further question was notagain raised by the respondents, and we have only to decide whetherthis Court was right in upholding the District Judge's ruling thatthe existence of the widow excluded the illegitimate children.
Both Courts rested their decision on the case of Mahatmaya v.Banda, and that case has therefore been much discussed before us.It was a decision of the Full Court, which then consisted oi threeJudges. The action was in detinue, which meant that it relatedsolely to movable property, and that the plaintiffs, in order tosucceed, had to make out a right to present possession. The defend-ant, a stranger, did not claim the movables, nor did he set up a justertii. The Court found the facts to be that plaintiffs were the illegiti-mate children of one Ukku Banda, who had died intestate, leavingapparently no surviving relations, and that the movables were hisacquired property. The District Court had held that Ukku Bandahad left a widow Mutu Menika, whose right to the acquired propertywa6 superior to that of the illegitimate children. But this Courtdisagreed with the District Judge and held the marriage not proved.Having disposed of that point, Lawrie A.C.J., who delivered theprincipal judgment in the case, proceeded:“It is well-established
Kandyan Law that, provided there be no legitimate children and nowidow, illegitimate children succeed to the whole of the acquiredproperty of the father. Saiyer, p. 7 (quoted afterwards by Marshall,p. 338); Niti Nighanduwa, p. 14;- Pereira*s Armour, pp. 8 and 34;1 LorenzP p. 189. ” Withers J. said:“ The simple issue on the
pleadings is, Are the plaintiffs, as illegitimate children of UkkuBanda, entitled to have and keep those movables as their own?This is a pure question of Kandyan Law, which would be answeredadversely to the plaintiffs if there was proof of a legitimate widow ofUkku Banda now being alive; but the existence of such a person hasnot been proved»and cannot be assured. As it is, it must beanswered in their favour, these being articles acquired by theirfather.” Browne A.J., the third member of the Court, did not dealwith the law. Examining the passages cited by Lawrie A.C.J.,Sawer, p. 7 (cited, I take it, from the edition published by Cambpell in1860), does not say or imply that a widow would exclude the illegiti-mate issue. “ The above rules of inheritance, " he says, “ must beunderstood to apply only in cases where the caste .of the parents hasbeen equal,^for the children of a wife of inferior caste to the husbandcannot inherit any part of the paraveni or hereditary property ofthe. father, that is to say, the property which has descendfed to himfrom his ancestors, while a descendant or one. of the pure blood ofthese ancestors, however remote, remains to inherit. But the issueof the low caste wife can inherit the lands acquired by their father,
1907.
March 18.
Wendt J.
( 184 )
1907. whether by purchase or by gift from strangers, but should no pro-March 18. vision of this kind exist for the children of the low caste wife, theyWenot J. will in that case be entitled to temporary support from their father'shereditary property. ” It will be observed that nothing whatever issaid as to what I may, for brevity's sake, call a “ legitimate widow,one (that is) of the husband’s own caste; perhaps it would be fairto assume that the author contemplates her non-existence, althoughpolygamy was recognized without limit (page 37). “ The aboverules of the law of inheritance. ” laid down by Sower, however, nevergive the widow anything more than a life interest in her husband'sacquired lands, whether there be issue or not (pages 1 and 2).Marshall merely reprints the passage from Sower under invertedcommas, and does not (so far as I am aware) suggest in any otherplace that the widow would exclude the illegitimate children. TheNiti Nighanduwa, p. 14 (Le Mesurier and Panabokke's translation),proceeds on the same lines as Sower: " If a man marries a womanof lower caste than himself, or a woman within the prohibiteddegrees of relationship, or a woman of equal rank, without the con-sent of the parents, the marriage is contrary to custom and theties of relationship, the children born of it are illegitimate, and theirtitle to the paternal right of inheritance is very unstable. A mantherefore who cohabits with a woman of his own caste, but of lowerrank, against the will of his parents, merely keeps her as a con-cubine, and his children by her will not, after his death, be entitledto maintenance from his ancestral estate, though in some instanceshis acquired property, movables and irrimovables, will become theirproperty; for instance, if the parents, though opposed to such union,allow their son to conduct and to live with the woman on their land,though she is of the same caste but of lower rank, his children by herwill have a right to their father’s acquired property; and if after thedeath of his parents a man marries a woman of lower caste than hisown, and has children by her, provided he has no legitimate chil-dren, all his acquired property, including lands and all movables,will at his death devolve on them. His ancestral lands, however,will revert to his family relations. ” No other passage of this workhas been cited to us as countenancing the exclusion of parties in theposition of the appellant. Pereira's Armour, at page 8, says aman’s marriage with a woman, who on account of inferiority ofbirth or of bad repute was unworthy of the alliance, would not berecognized as lawful wedlock, and if he predeceased his parents,
€ his issue, being illegitimate, would have no right to hfs parents’estate, “ but will be entitled to inherit only such property as theirfather had himself acquired by purchase or other means of acquest. ”At page 34, however, comes the passage by which the widow’spreferent right has been most strongly supported. In Pereira'sedition it is headed 11 Duty of Parents towards Illegitimate Children.
*•' The father is bound to provide for the support of his illegitimate
( 185 )
children. In some cases illegitimate children are even competentto inherit their father's purchased lands as well as goods and chat-tels; thus, if a man of high caste cohabited with a woman of inferiorcaste or inferior family rank, and maintained that woman in his ownhouse, and was attended and assisted by her until his demise, incase that man died intestate, and left not a widow who had beenlawfully wedded to him and left not legitimate issue, his landedproperty, which he had acquired by purchase, will devolve to hisillegitimate issue, the child or children of the said woman of lowcaste or inferior family rank; but his paraveni or ancestral landswill remain to his next of kin amongst his blood relations.
It is apparently this passage that Lawrie A.C.J. had under hiseye when writing his judgment in Mahatmaya «. Banda, only hesubstitutes the sentence “ illegitimate children succeed to the wholeof the acquired property ’* for Armour's words “ landed property,which he had acquired by purchase will devolve to his illegitimateissue.*1 In my opinion, formed after a very careful examination ofall the authorities, the meaning which the author intended to con-vey by “ devolve to ” was “ become immediately and absolutelythe property of. ” and the absence of a widow was premised because,if she existed, she would enjoy a life interest in the acquired estate,and therefore the illegitimate children, while they were vested withthe dominium, would not have possession until after her death.
Section 26 of Armour (page 22), entitled ” Widow remaining atHusband's death Single, without issue, *’ opens with the quotationof page 15 of Sawer (which he put under the head 11 Succession toMovable Proverty “) to the effect that “ in the event of there beingno children, the widow inherits the whole of the household goods,grain in store, also the cattle which have been acquired, togetherftitb the increase in the husband’s stock of cattle, subsequent to themarriage.” The following paragraphs of Armour deal with the rightto paraveni property. There the widow succeeds, by lat-himi right,only if there be no issue, no adopted child, parent, or near relation.“ Issue ” there means “ legitimate issue, ” because there is nothingwhich countenances the succession of illegitimate children in respectof ancestral lands. In the later paragraph, however (page 23),laying down that “ it the deceased left no issue and had survived hisparents and his full brothers and sisters and their children* thenhis widow will have an absolute lat-himi right to such lands asbelonged to the deceased by right of acquest, to the exclusion ofdeceased's more distant relatives (paternal aunt’s children, for^instance). “ No issue ” must, I think, be read as “ no children,whether legitimate or illegitimate. ” That reading brings Armourinto harmony with the law as declared in Sawer and the* Niti Nig-handuwa.
It appears to be well settled that where a man leaves both legiti-mate and illegitimate children, his acquired property is shared
1907*
March 18*
Wendt J.
1907.
March IS.
Wbndt J.
( 136 )
between them, each branch taking a moiety. The Niti Nigkanduwarpp, 14 and 71, recognize their right to some share in such property,and very long ago, in D. C., Kandy (North), No. 721 (1), they wereheld entitled to a moiety, I have sent lor and examined the recordof that case. The widow was first plaintiff, suing on behalf of herson, the second plaintiff, and the third plaintiff was her present hus-band. The defendants were the illegitimate children. Fendingaction the son died. It was admitted in the Court below that theson was preferred to the defendants in the succession to the parave'niestate, but the latter argued that they had originally succeeded paripassu with the son to the acquired lands, and now were entitled to-his moiety as well, as his sole next of kin, his mother having only aright to maintenance. The case having been tried, the DistrictJudge held (1) that each bed took a moiety of the acquired estate,with which the assessors agreed; and (2) that the defendants, ashalf-brothers, were heirs to the son's moiety, subject to the widow'sright to maintenance. With this, however, the assessors disagreed,,being of opinion that the mother was sole heiress of her son. Theplaintiffs having appealed, the Supreme Court decreed " the defend-ants to. be entitled to one-half of the acquired property of theirdeceased father Waratenne Loku Nilleme, and that the plaintiff is-entitled to inherit the estate of her own son, who had a right to thewhole paraveni and half'of the acquired property of his late father.By the Kandyan Law the mother is the sole heiress to her only sonby her first marriage, upon such fatherless son dying without issue,although she may have subsequently married another husband indiga, and such son have brothers or sisters of the half blood by thesecond marriage of his father. "<
Sir Archibald Lawrie was therefore right in saying that theabsence of legitimate children was a condition precedent to theillegitimate children taking the whole of the acquired property of thefather; and if it be borne in mind that he was dealing with a casein which, to entitle them to judgment, the illegitimate children hadto show a right to present possession, he was als6 right in makingthe absence of a widow a similar condition. It appears now to methat, in applying his dicta to the present case, I erred in not appre-ciating the difference of the circumstances. under which they werepronounced, and in supposing that they warranted a denial to theillegitimate children of any interest at all in the acquired propertyif a widow or legitimate issue existed. I greatly regret the incon-t venience to the parties which that error has occasioned* and amglad that the opportunity has been afforded me of acknowledgingand correcting it in the very suit in which it was committed.
As to tile sister of the deceased Sundra, she cannot exclude theillegitimate issue from the acquired property. The Supreme Court
'll Civ. Mtn, 24th August, 1842.
(2) iWin 147; (1866) 1 Lor. 189.
( 137 )
so decided in Silva v. Garolinahamy (1), as to which I need addnothing to what I said in the judgment under review. There wasno legitimate issue there, and no widow, and so the entirety of theacquired property was adjudged absolutely to the illegitimatechildren.
Counsel for the respondents contended that we ought implicitlyto follow the law laid down by Armour at page 84, and not seek forsome principle to justify his dictum. That, however, is not only atall times a dangerous mode of interpretation, but would lead to legi-timate children altogether excluding the illegitimate—a result whichthis Court repudiated sixty years ago. No case .has been broughtto our notice in which in a contest between widow and illegitimatechildren the former has been held to exclude the latter from anyinterest in the acquired property.
In the result I think we ought to set aside our judgment underreview, and declare that the acquired lands of the intestate devolvedexclusively upon his illegitimate children, the appellants, subject toa life interest in his widow, the administratrix. The respondentsmust pay the appellants their costs in both Courts, and if theappellants have paid them the costs of the original appeal, they mustbe repaid. The order for costs against the administratrix is, ofcourse, as between her and the appellants, and order against herpersonally.
Middleton J.—
We are asked to review our judgment in this case, and to hold thatillegitimate children, pure and simple, are entitled under KandyanLaw to inherit their father's acquired property as against thenfather’s sister.
The argument, as I understand it, is that inasmuch as it has beendecided by this Court in cases reported in 1 Lorenz, p. 189, Austin,p. 147, and 3 N, L. B.*p. 376, that'the illegitimate children of anintestate succeed1 to the acquired property of their father as againsthis sister, we are bound to hold the same here. It is further sug-gested that we have wrongly interpreted the judgment .of Lawrie J.in Mahatmaya v. Banda (2), where that learned Judge says “ It iswell-established Kandyan Law that, provided there be no legitimatechildren and no widow, illegitimate children succeed to the whole ofthe acquired property of the father, ” and that the meaning of thelearned Judge was that after the life interest of the widow hadLexpired, ttfere being no legitimate children, the illegitimate childrenwould and must succeed. It is further submitted that I have con-strued the words " without issue ” in the third paragraph of page 22and "#no issue ” in the second paragraph of page 23 of Armour as
(1) Austin 147; (1856) 1 Lor. 189.(2) (1893) 2 S. C. R. 143.
1907.
Hatch 18.
Wbndt J.
( 138 )
1007 meaning merely legitimate issue, when in fact the author intended toMarch 18 include illegitimate children within the meaning of those words. ItMiddi*btton appeared to be assumed by both sides during the argument that it wasJ* too late now to make any distinction in the character of differentkinds of illegitimate children, and that the law and the decisions ofthis Court recognized none. Armour, however, at page 84, and theNiti Nighanduwa, p. 14, both say that it is only in some cases that’the so-called illegitimate children are competent to inherit theirfather’s purchased lands, while Sawer (p. 7) specifies the issue of thelow caste wife as inheriting only the acquired properly, and if there benone there, that they are entitled to temporary support from theparaveni property.
So far as I have been able to gather from the reported cases, this-Court has apparently never expressly acknowledged any distinctionbetween what I have called purely illegitimate children, such asthe children of fornication or the children of casual cohabitation,said by Armour at section 5, page 7, to be no wedlock, and therecognized illegitimate children referred to at section 2, page34, the issue of a quasi marriage or concubinage. But if we examinethe facts in 3 N. L. R. p. 376 and Austin, p. 147, there would appearto be evidence of such open cohabitation and equality of caste that anattempt was made in each case, but unsuccessfully, to establish amarriage with the mother of the illegitimate children. It is notunreasonable to infer that the Court looked on these cases as fallingwithin the privilege owing to their proximity in resemblance to areal marriage amongst a people still clinging to ancient habits andcustoms.
In the present case the plaintiffs are, I take it, in the category ofunrecognized purely illegitimate children, and their mother couldnot be acknowledged as the widow of the intestate.
The Kandyan Law apparently recognized polyandry, polygamy,concubinage, and unlawful marriages (Armour, ss. 6, 7, and 10), butnot more irregular relations. Under the old Kandyan Law, con-sidering the loose way connubial relations might he formed, therewas every reason why the offspring of so-called unlawful marriageshould share, bv inheritance under certain circumstances in someportion of the parental prqperty. The father is bound to providefor the support of his illegitimate children (Armour, p. 34, s. 5), andthe deceased in the present case had made a substantial gift of land'sto the plaintiffs and their mother, as the learned District Judge.says in paragraph 3 of his judgment.*
I have very carefully considered the law as laid down *in Armour,and, in my opinion, taking into consideration Kiri Menika v. MutuMenilca (1) and Silva v. Carlinahamy (2), it is not too late even nowto hold that , the right of illegitimate children to succeed to their
a) (1899) 3 N. L. R. 376.(?) Austin 147; (1866) 1 Lor. 189;
( 139 )
father’s acquired property depends (1) on the caste of their motherand (2) on the circumstances attendant on the relationship betweenthe mother and the father. If the mother, acknowledged and main-tained as a concubine, was of equal caste (Perera’a Armour, s. 6Vp. 8), such concubinage was taken to be a marriage, and the offspringhad the privilege of legitimate children, if not stigmatized bysome decisive act on the part of the man's family or by the manhimself. If the woman, though of inferior caste, was taken into theman's house and treated like and acted as a wife (page 34, section 2),then, if there were no widow and no legitimate children, her childrensucceeded to the acquired landed property of the man; a portionif she was of equal caste. A legal widow would in either case barthe vesting of the dominium until her death. But where a coolywoman of inferior caste was not taken into the man’s house noracknowledged, but simply visited elsewhere as a mistress, I can find noauthority in the Kandyan Law for saying that her offspring were tosucceed as of right to any of the property of their deceased father.In my opinion they would not be “ issue " either in the sense con-templated in section 26, page 22, paragraph 3, or page 23, paragraph% of Armour.
I have had the advantage of reading my brother Wendt's judg-ment, and I agree with him as to his view of the meaning of the word1(1 issue " at page 22 and to the extent that I have indicated. Iagree with his view of its meaning at page 23, that is to say, itincludes recognized illegitimate issue, but excludes the purelyillegitimate issue such as exist in this case.
If the reasoning I applied in my former judgment from section 26of Armour be brought into force, the sister here would exclude theappellants; and if she died then the widow.
• It is with considerable hesitation that I enunciate my views • ofthe law as affecting this case in the face of the judgments of my Lordand my brother Wendt, but I cannot help thinking that theapparent status of the illegitimate children in the cases of Silva v.Carlinahamy and, Kiri Menika v, Mutu Menika must have weighedwith the Judges who decided those cases. I think that the meaningof the dictum of Lawrie J. in Mdhatmaya v. Banda is as the learnedcounsel for the appellants put it, i.e., that where there are nolegitimate children and no widow the illegitimate children mustsucceed entirely to the acquired property. If there were a widow,she would take the life interest, and the dominium would devolve onthe illegitimate heirs. The qualification is that those illegitimatechildren inijst be of such a status as to come within the definition*of what I have termed recognized illegitimate children.
In my opinion, then, the appeal should be dismissed *with costsand Ihe judgment in appeal should stand.
1907.
March 18
MxDDLsrojsr
J.
Judgment in appeal reversed.