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Be Estate of PUNCH.iRALA, Deceased.D. C., Kandy, 1,839 (Testamentary).DINGIRI MENIKA et al.. Petitioners,
Kandyan Law—Succession to acquired property of intestate—Uterine half-brotherof intestate—Right of uterine hdlf.sisters, married in digs, to succeedjointly with their half-brother.
Per curiam (with some hesitation), where a Kandyan died intestateand without issue the lands acquired by him devolve on his uterinehalf-brother, to the exclusion of his uterine half-sisters who had marriedin diga.
HE petitioners alleged in their petition that the respondent, asadministrator' of the estate of the deceased Punchirala, filed
a final account on the footing that he was the sole heir of theintestate, ignoring the rights of the first and second petitionersas the uterine sisters of the intestate, and the third and fourthpetitioners as the children of another of his uterine sisters. Theyprayed that the respondent be compelled to make a judicialsettlement upon the footing that the petitioners are entitled tothree-fourth shares, and the respondent to the remaining one-fourth share.
The District Judge (Mr. J. H. de Saram) dismissed theirpetition by the following judgment:—
“ The first and second petitioners are the diga married sistersof the respondent, the administrator. The third and fourthpetitioners are the nephews of the respondent. Their mother wasalso married in diga. The respondent is the uterine half-brotherof the intestate.
“ The question is whether he is the sole heir of the intestate,or whether the petitioners succeed to the estate jointly with him.I understand that the bulk of the property was the intestate’sacquired property. The point involved in the case is whetherthe rule of forfeiture consequent on a diga marriage is recognizedas between uterine half-brothers and sisters of a person dyingintestate. That rule is recognized as between a full-brother andsister. Armour lays it down thus on page 43: —
“ ‘ If a man died without issue and intestate, leaving a sistermarried out in diga and a brother, the latter will succeed to the
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1900. deceased’s share of the paternal paraveni lands, to the exclusion
November 16. of the diga married aster, whether the said sister had been
°"4 so married away previous to the demise of their father or
1901' subsequently. ’
“ It appears to me that there can be no difference between thefull-brothers and sisters of an intestate and his half-brothers andsisters inter se. The case cited for the petitioners (D. C., Kandy,4,054, Austin, 19) is distinguishable from the present, becausethere the competitors for the inheritance stood to each other inthe relation of the half-blood only, while here they are all of thefull-blood among themselves, though of the half-blood in relationto the intestate. The Supreme Court there pointed out that, ifthe plaintiff had a brother or sister married in binna of the fullblood, they would have taken the inheritance to the exclusion ofthe plaintiff. It is true the question there was the inheritance ofthe common parent, while here it is of the half-brother, but I donot think this makes any difference in principle. The property,whether ancestral or acquired, stands on the same footing inrespect of forfeiture.
“I am of opinion that the petitioners have no right to inheritany share of the intestate’s property. I dismiss their petition withcosts.”
The petitioners appealed. The case was argued on 1st May, 1900.
Van Langenberg appeared for appellant.
Bawa, for respondent.
23rd May, 1900. Lawrie, J., and Moncreiff, J., directed theDistrict Judge to ascertain whether one Kiri Menika, whoappeared in the testamentary proceedings, alleging herself to bethe widow of Punchirala, claimed any part of his estate, and forthis purpose the record was remitted to the Court below, with thefollowing observations of Lawrie, J.: —
” This appeal raises interesting and difficult points in KandyanLaw, on which I should have liked to have heard more argument,and to have had more time to consider it than is possible now,on the eve of going home for a few months.
“ I am not sure of the authority of the passage quoted by thelearned District Judge from page 43 of Armour. I have not beenable to find that passage either in the oirgihal Armour or in theNiti Niganduwa, part of which Armour translated. It does notseem to be consistent with other statements of Kandyan Law.Indeed, Mr. Bawa, in supporting the judgment, relied mainly ona passage at page 13 of Sawer’s Digest. That and a passage inArmour seem to show that, in the distribution of the acquired
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property of an unmarried childless man, traces of a preference of 1000.
males over females are unknown to other parts of the Kandyan November 16.
“ An issue was framed whether Kiri Menika and the intestatewere married, but that issue was never tried. Her claim must bedisposed of before the competition betwen the appellant andrespondent can be decided. The case is remitted.”
The District Judge examined Kiri Menika, who deposed thatshe was not legally married to Punchirala and did not claim anyshare of the estate as his widow.
The District Judge found accordingly.
In returning the case to the Supreme Court he explained:—
” The passage quoted by me from page 43 of Perera’s Armourappears on page 57 of Armour’s translation of the Niti Nigan-duwcL. There is another passage in page 59 of the same translationwhich supports the respondent’s position: ’ A man Having diedwithout issue and intestate, the landed property which he hadacquired or obtained by gift will devolve to his brother-’s son, tothe exclusion of his sister’s son.’
The appeal came on for re-hearing on the 15th November, 1900.
Van Langenberg, for appellant.
Bawa, for respondent.
Cur. gdv. vult.
15th January, 1901. Lawrie, J.—
The learned District Judge has excluded from a share in theinheritance of Punchirala his half-sisters married in diga.
In his first judgment he held that a woman by her digamarriage forfeited the right of succession to all property which herbrother had acquired.
I am by no means sure that the law is so, and I doubt whetherthe forfeiture created by a diga marriage extends further than tothe father’s estate, and even with regard to his estate the tendencyever was to relax the law and to admit the diga married daughter.
I am not aware of any decision of our Court which excludeddiga married women from inheriting from other relations than the. fathers.
Mr. Justice Withers and I held in D. C., Kandy, 8,185, thata diga married woman inherited her mother’s property equallywith her brother and her sisters married in binna. (2 N. L. B. 92).
At the first argument in appeal I understood Mr. Bawa to sup-port the judgment excluding these half-sisters, not because theywere married in diga, but because, in the case of a man who dies
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1901. intestate, without issue and without surviving parents, his acquiredJanuary is. property goes to his male, to the exclusion of his female, relativesLawrie, J. of the same degree.
Sawersays,page13: “Ultimately(after the parents’ death)
it is divided among the brothers of the whole blood of the deceasedequally, or their sons, according to what would have been theirfather’s share; but failing brothers’ sons, it goes to the sisters ofwhole-blood or their sons; and failing them, to the brothersof the half-blood uterine. and their children; failing them, tosisters of thehalf-blood uterine andtheir children; and failing
brothersand sistersof thehalf-blooduterine and their children,
the property goes to the half-brothers of the father’s side andtheir children, and then to the half-sisters by the father’s side andtheir children.”
It isclearthatSawerexpresslyprefers males to females
in the same degree, brothers to sisters, half-brothers to half-sisters, &c.
It is difficult to reconcile that with the sentence with which hecommences, that ” the sisters have only the same degree of interest-in their deceased brother’s acquired property as they have in theirdeceased parent's estate,” for that interest was equal in the case ofinheritance of sons and binna married daughters, whereas I under-stand Sawer to say that of property acquired by brothers, binnamarried daughters get nothing, if there be surviving brothers.The rule as to the exclusion of sisters if there be brothers,or the exclusion of nieces if there be nephews, is supported byArmour (Perera’s Armour, p. 46), quoted by the learned DistrictJudge.
But this is at variance with the law, as stated by Sawer, withregard to property acquired by a woman. He says (p. 17): “Anunmarried daughter acquiring property and dying intestate, herproperty goes to her mother; failing the mother, to the father andfailing the father, to her brothers and sisters of the whole-blood;and if there be but one such brother, the whole goes to him; ifthere are several brothers, they share equally; failing brothersand sisters of the whole-blood, to the brothers and sisters uterineof the half-blood; and failing them, to the brothers and sisters ofthe half-blood by the father’s side,” &c.
I am not sure' that the preference for males over females insuccession to acquired property is good Kandyan Law, but it isexpressly stated to be so by Sawer, and the authority of that verypassage was recently accepted by the Chief Justice in C. R.,Matale, 1,763 (3 N. L. R. 209).
With some hesitation, I agree to affirm.
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The passage in Sawer, p. 13, on which the decision of the January IS.rights of half-brothers and sisters * in their deoeased half-brother’sacquired property rests, has a misprint in the third line—“ hisother parents ” should be “ his or her parents.”
It does not seem to be quoted or treated as a whole in Perera’sArmour and the passage which the learned District Judge cites(page 56) from Perera’s Armour, p. 43, relates to the exclusionof a diga married sister from sharing in competition with her fullbrother in their brother’s paraveni property. Indeed, all thatsection 19 of ch. HI. of Armour relates to inheritance to paraveniproperty only, and does no.t. appear to me to be an expansion orillustration of the principles of that passage in Sawer, which ischiefly enunoiatory with respect to acquired property. The onlyillustration of it seem6 to be the second paragraph in section 19,page 46, of Armour, although no authority is cited for that passage.
The principle of exclusion for diga marriage as to paraveniwould seem to enter into consideration qud acquired property,sinoe Sawer says the sisters have ” only the same degree of interestin their deceased brother’s acquired property that they [would]have in their deceased parent's estate,” and I suppose thatcapabilities of all sisters and half-sisters to inherit mentioned inthe rest of the passage must be limited to those who have not beenmarried in diga. The specific application of the doctrine whichis evolved and regulated by the consideration of two things, (1)degrees in consanguinity and (2) sex, is so minutely stated bySawer that, however, exceptional it may be, I must conclude it hadbeen well ascertained.
I would, therefore, affirm with costs.
Re Estate of PUNCHIRALA, Deceased