H. J. C. Pereira, K.C. (with him Candkaratna), for respondents.
Cur. adv. vvdt.
February 18, 1923. Garvin J.—
This appeal raises a question of Kandyan law of – considerabledifficulty. The facts of the case are simple. Tikiri Kumarihamy,by a deed dated August 5, 1899, gifted the land, which is the subjectof this action, to Wilmot Dlangakoon and Lilawathi Panabokke,in consideration of their marriage which was about to take place..They were married in diga on September 21, 1899. LilawathiPanabokke died intestate and without issue on July 18, 1901. OnJuly 15, 1919, Hlangakoon transferred a half share of this landto the plaintiff, on the footing that he was his deceased wife’s heir.The defendant claims this half share, his submission being thatLilawathi's heir was her mother, who by last- will bequeathed theshare to him.
( 258 )
Gabvtn J.
The question for determination is whether the husband- is theheir at law to his wife’s landed property acquired before marriage,it being premised that the marriage was in diga, and that the wifeleft no children.
The District Judge has affirmed the right of the husband to thisproperty, and bases his conclusion on a certain passage in Sawers’memoranda, on the Kandyan Law, which is reproduced in Modder’sedition at page 11, section 31. Since it is upon this passage learnedcounsel for the respondent also relied, I propose to proceed to con-sider it at once.
The passage as it appears in an original manuscript signed byMr. Sawers, recently acquired by Mr. F. A. Hayley, runs as follows:
“ The husband is heir to his wife’s landed property, which will athis demise go to his heirs, but in the event of the wife having lefta son, and the father contracting a second marriage and havingissue of the second bed, in this case, on the death of the father, theson of the first bed would inherit the whole of his mother’s estate,with a moiety of his father’s estate, while the. children of the secondbed would inherit the other- moiety of the. latter estate, but in theevent of the first bed dying without issue, the children of the secondbe.d would only inherit the moiety which descended to him of hisfather’s estate, while his mother’s estate would revert to his mother’sfainily.”
The asterisk against the word “ heirs ” in the second line refersto a marginal note which runs as follows:Note.—” This is the
opinion of Doloswela Dissave of Saffragam, but the chiefs of. theTfdaratta are unanimously of opinion that the husband is not theheir to the wife’s landed paraveni estate, which she inherited fromher parents, nor of her acquired landed property; the moment thewife dies, the husband loses all interest in his wife's estate, which,if she left no issue, reverts to her parents or their heirs. Thoughthe wife is entitled to the entire possession of her deceased husband’sestate, so long as she continues single and remains in his house,the husband must quit his wife’s estate the moment of her demise.”
It is, I think, clear that Pereira J. was led into the error of ascribingto Sawers only the words: ” The above is the opinion of DoloswelaDissave of Saffragam,” and the rest of the note to Chief JusticeMarshall by a mistake in punctuation in the note, as the same isprinted in Marshall’s judgments. If any part of the ” note ” isascribed to Sawers, the whole must be, for there is no doubt thatthe whole of this note like numerous others appearing in Sawerswas made contemporaneously.
.What is the correct interpretation of Sawers’ words ? What hesayB is that a widower is heir to his deceased wife's landed property” which will at bis demise ” go^to his heirs. The absence of Words,such as ” if he dies intestate,” which occur frequently in Sawers'memoranda, and the presence of the words “ which will at hie
( 269 >
demise go to his heirs/' imply that the estate which the husband
takes is not absolute; it- is a life estate with the reversion to his Biwm j.
Two paragraphs lower down Sawers says: “ A wife dying intestate «.leaving a son who inherits her property, and that son dyirg without Hatan90doissue, the father has only a life interest in the property which theson derived or inherited from or through his mother; at the father'sdeath, such property goes to the son's uterine brothers or sistersif he have any, and failing them, to the son's nearest heirs in hismother's family." (Modder, p. 19, section 33.)
So that the real heir to the deceased wife’s' landed property isher son, on whose death without issue the property passes to hisheirs on his mother’s side, subject to the husband’s life interest.
So that when Sawers in the first passage talks of the widower asthe " heir,” and later of the son " inheriting the whole of his mother'sestate " on the father's death,, he is, I think, referring to the husbandas heir to the life estate and the “ whole of his mother’s estate ’’in the sense of the reversionary interest, plus the immediate enjoy*ment thereof.
It is contended, however, that the passage first quoted meansthat when there is no son by the first bed, the husband takes anabsolute title. Sawers does'not say that on the death of a womanintestate and without issue her landed property goes, to her husband.
The suggested interpretation does not give effect to toe words“ which will at his demise go to his heirs." The words which followthe words “ heirs " appears to be in the nature of the explanationof the words heirs, as toe heirs by the first marriage and not heirsby a second marriage.
A mother, who is toe heir of a son, who dies without issue andtakes his properly, even the paraveni property of her deceasedhusband with full rights oi proposition, takes only a life interest 'in her husband’s estate.
It seems inconceivable that a widower who is only permitted asort of life estate by courtesy in his deceased .wife’s landed propertywhen there is a son bom to toe marriage with reversion to the son,or should toe son die without issue to his son’s nearest heirs on hismother’s side, should be in a better ppsition when there are nochildren bom to toe marriage and take the whole of his wife’slanded estate to 'the exclusion of those who would have been heirsin expectancy if a son had been born to. the marriage.
• Sawers himself lays down as a rule of inheritance to propertythat: “ A person dying childless, having parents and brothers, theproperty, which toe deceased may have had from his or her parents,reverts to them reciprocally (if from the father to toe father, if fromtoe mother to toe mother) as does his acquired property, whetherland, cattle, or goods to his parents." {Modder, p. 16, section 43.)
( 260 )
Garvin J„
That inherited property reverts to the source from which it wasinherited where there is no issue is- one of the fundamental principlesof the Kandyan law.
Under these circumstances, if it was intended to lay down a ruleof succession so antagonistic to these principles and unanimouslydenied by all the Udaratta chiefs, it is fair to assume that it wouldhave been unambiguously stated. Moreover, it seems difficult tobelieve that the Doloswela Dissave would have claimed for thehusband an absolute right to the estate of his wife who dies childless;but it is not difficult to believe that he did assert that a widowershould have a life interest in his deceased wife’s estate similar tothe life interest in her deceased husband’s estate which is allowedto a widow. Whether or no such a life interest was granted to awidower under the Kandyan law would seem to have formed thesubject of the disputation between the chiefs.
But even supposing that upon a correct interpretation of thelanguage used by Sawers, all that the widower takes is a life interest,there remains a difficulty Occasioned by the designation of thereversionaries as “ his heirs,” unless the words which follow can beregarded as anexplanationof what is meant by ” his heirs,”i.e.,
when there arechildrenoftwo beds, his sons by his deceasedwife
and not the children of the second bed, and when the sons diewithout issue,the nextofkin in the mother’s family. Thecase
of there beingno heirsisnot expressly dealt with. The passage
contemplates the existence of heirs in the sense indicated. This/I think, is the correct interpretation of the passage.
If there were no children by the first marriage, then so far as thelaw is to be gathered from Sawers, the husband takes nothing inaccordance with the rule that “ a person dying childless havingparents or brother .the property which the deceased
may have had from his or her parents reverts to them reciprocally, &c.” (Moddert p. 16, section 48.)
The only interpretation of the passage under considerationconsistent with what Sawers himself has laid down in his memorandais that a widower takes' a life interest in his deceased wife’s estatewhere there is issue of the marriage. It seems to me quite impossibleto make anything more of the passage, or to rely upon it with anyconfidence as an authority for the proposition that the widowertakes the property absolutely where the wife died without issue.
The passage is full of difficulties. When read with the secondof the passage quoted—that which gives the husband a life interestin the property inherited from his mother by a son who dies childless—it is at least clear that a widower does take a life interest in thelanded property of his deceased wife if she left issue of the marriage.It is possible to read the first passage in this sense, and I think itshould be so read.
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Before I leave this point I would observe that Sawers is, X think,referring in this passage to a diga marriage. He does not seemto regard a binna married woman as heir to her father's estate.I note that in his very first rule of inheritance he says of binnamarried daughters: “ These, or rather their children, have the sameright to a share of their father’s lands as their brothers.” (Modder,p. 1, section 1.)
Later he says: " The father is not the heir of the property of hischildren bom in a binna marriage, which they have acquired throughtheir marriage. ”(Madder, p. 17, seotion 50.)
His view would seem to be that the children of' a binna marriageare themselves in a sense the, heirs to their grandparents’ landedproperty.
So much for Sawers. The only other contemporary writer isMr. Armour, an Englishman, who is referred to by Mr. Sawers as** The Secretary of the Judicial Court, who is certainly the onlyperson qualified for the task, ” the task of translating into SinhaleseSir John D’Oyly’s sketch and his own memoranda.
In his grammar of Kandyan law, page 297 Armour expresses theview that the children are the heirs to their fiaother’s landed property,and only admits the husband to the reversion on failure of children,full-sisters, uncles, aunts, and adopted children.
The grammar at page 29 proceeds as follows: ‘‘ If the wife dieintestate, leaving a grandchild, the issue of her son who had diedbefore her, that grandchild will inherit her landed property to theexclusion of the widower, although he were the said child’s paternalgrandfather.—
“ If the deceased wife’s mother survive, she, the mother, will beentitled to all the property that had belonged in right of inheritanceand as dowry to the deceased daughter, whose husband, the widower,will be entitled to such property only, as himself and his deceasedwife had acquired by purchase or other means during the coverture,it being premised that the deceased wife left no issue. ”
There is no question that Armour is here dealing with the landedestate. He says so expressly, and proceeds immediately thereafterto deal with the rules of inheritance to the ‘‘ goods ” of a digamarried woman.
Oabvuj J.
In his Treatise on the Kandyan haw Perera affirms the last of thetwo paragraphs above quoted from Armour in terms. {Perera.section 34. p. 29.)
It is in this passage alone that there is to be found any expressrecognition of the rights of a widower to any part of his deceasedwife’s landed property, viz., to the property acquired during cover-ture. Armour’s words, though general, must, I think, be appliedonly to the case of a diga marriage, as there are other passagesin his ‘‘ Grammar ” which indicate that where the marriage is inbinna, the husband vacates his wife’s estate immediately.
( 252 )
CfeNwnsr J.Se ejtHratneHatangoda
Armour does not expressly admit the widower’s right to & lifeinterest in the fended, property of his deceased wife Who left issue.But the following passages appear in Per era’s Treatise: (a) “ Thewidower has no right to dispose of his wife’s landed estate to theprejudice of her heirs at few (her adopted son or his sisters’s son, forinstance.) (Perera, p. 29, section 34.) (b) " Therefore, although thewidower had possession of his deceased' wife’s paraveni land formany years since her demise, he will not have thereby acquired aprescriptive title to the same, and any gift or bequest which he shallmake thereof will not be valid.” (Perera, p. 29, section 34.)
This seems to assume the existence of a life interest in the widower,though the point is not specially dealt with.
The position which results from an examination of the works ofthese text writers may be summarized thus:
When a woman married in diga dies leaving issue, her husbandtakes a life interest in her landed property, which on hisdeath will go to her children, or, if they have all diedwithout issue, to their next of kin in their mother’s family.
In he above case if there be no issue, her husband will take onlysuch landed property as he and his deceased wife acquiredduring coverture, the rest of the property passing to herparents and next of kin. So
So much for the text writers. I shall pass now to the law as laiddown in the judgment of this Court.
In the case of Dingirihamy v. Menika 1 it was held that a widowerhas ” no right of life rent in the paraveni lands of his deceased wife. ”It does not appear whether the marriage was in binna or in diga,but there was issue of the marriage. If it was in binna, the decisionis in accordance with the view expressed by Sawers. If, on theother hand, the marriage was in diga, it is to the extent of theparaveni lands of a wife a denial of Sawers’ claim of a life interestfor the widower.
It is, of course, clear from the commentaries that a binna widower_takes no interest in his deceased wife’s landed property. Thisproposition has been approved by this Court. In the case of TikiriBanda v. Appuhamy, 2 De Sampayo J. said: “ Now it appears to bewell settled law that a binna widower has no interest in his deceasedwife's landed property whether ancestral or acquired, ” and I notethat it is recorded in the judgment of Dias J. in Naide Appu v.PaUingurala9 that“It was admitted at the bar that a binnahusband, had no interest at all in his wife’s property whether ancestralor acquired. ”
Thus, a binna widower is completely excluded from any rights1>o the landed estate of his deceased wife.
* 2 C. L. R. 76.■ (1914) 18 ff. L. R. 105.
*2S.C, C. 176.
( 263 )
How far has this Court recognized any rights in the diga widowerto the acquired property of his deceased wife? In Tikiri Banda v.Appuhamy (supra) it was held that where there was, issue of themarriage, he took a life interest in landed .property acquired duringcoverture.
And in Naide Appu v. Pattingurala (supra) a case decided in1879, the Court was called upon to pronounce upon the rival claimsof a diga widower and his deceased wife's sisters to landed propertyacquired during coverture. It was Held that the widower's claimwas the better, and entitled to prevail.
This judgment proceeded mainly upon the differences betweenbinna and diga marriages, and a consideration of the obligationsof the parties to such marriages and the conclusion in favour of thewidower arrived at by the Court was supported by a reference to apassage in Armour which states that the "goods” which the wifeacquired during her diga coverture will remain to the husband.
The District Judge argues that the words "goods” in the passagefrom Armour means movable and n9t landed property, and contendsthat the judgment must then be read as an interpretation of thepassage from Sowers in the sense that the widower takes an absoluteestate in all the deceased diga wife's acquired landed propertywithout distinction. It is true that there is a passing reference toSawers in the judgment of Dias J., but it is quite clear that rightlyor wrongly both Dias J. and Cayley C.J. rested their judgments onthe passage from Armour.i
But in so far as the conclusions arrived at by those Judges neeuP'the support of text writers, I think there is ample support to befound in the passages from Armour's Grammar, p. 29, quoted byme earlier.
This at least is dear to me that if a diga widower’s claim to…anypart of his deceased wife's estate where she dies without issue isto be admitted at all, it can only be admitted on the authority ofthe writings of Armour and: Perera and the case of Naide Appu v.Pattingurala (supra), and only to the extent that it has been thereinadmitted. Viewing the passage in Sawers ia the light most favour-able to the respondent, its meaning is too uncertain to’ justify itsacceptance as an authority for the proposition he is seeking tomaintain..
The landed property, which is the subject, of this action* is inthe nature of dowry. It is not property acquired during coverture,and docs not fall within the class of acquired property which accordingto Armour the husband takes.
For these reasons the judgment of the District Judge must beset aside. The appeal is allowed, with costs.
Schneideb J.—I agree.
Gabvut J.Seneviratne
Set aside.