128-NLR-NLR-V-48-SETUWA-Appellant-and-SIRIMALIE-Respondent.pdf
WIJEYEWARDENE S.P.J.—Setuwa v. Sirimalie.391
1947Present: Wijeyewardene S.P.J-
SETUWA, Appellant, and SIRIMALIE, Respondent.
S. C. 76—C. R. Matale, 8,939.
1
Kandyan Lato—Kandyan Law Amendment Ordinance, proviso to section (101 (1 >—Meaning of "child”—Includes illegitimate child—Paraveni propertyand acquired property.
The word child in the proviso to section 10 (1) of the Kandyan LawDeclaration and Amendment Ordinance means not only a legitimatechild but also an illegitimate child.
A PPEAL from a judgment of the Commissioner of Requests, Matale.
S’. R. Wijayatilake (with him R. S. Wanasundere), for the first defendant,appellant.
No appearance for the plaintiff and the second defendant, respondents.
Cur. adv. vult.
July 16, 1947. Wijeyewardene S.P.J.—
This is an action for declaration of title to an undivided one-third shareof a land. One Puncha was admittedly the original owner of the land byright of purchase under a deed P2. He died intestate leaving his threechildren—Setuwa, Hapuwa and Nanduwa. Nanduwa died intestateabout 1943. The plaintiff filed this action as the next friend of threeminors who, she alleged, were the children of Nanduwa. The defendantsdenied that allegation.
I accept the finding of the Commissioner that Nanduwa was the fatherof the minors. The oral evidence and the document PI prove beyondany doubt that the minors were the illegitimate children of Nanduwa.
The Commissioner held, further, that the minors were entitled toNanduwa’s one-third share and gave his reason very briefly as follows : —“This property is the acquired property of Nanduwa, vide P2 ”. TheCommissioner appears to have thought that, as the property had beenpurchased by Nanduwa’s father, it should be regarded as the acquiredproperty of Nanduwa, when the Court considers the succession to theestate of Nanduwa. The question, however, does not admit of such aneasy solution under the Kandyan Law Declaration and AmendmentOrdinance which is applicable to the present case.
Section 10 (1) of the Ordinance enacts that “ paraveni property ”shall mean inter alia “ immovable property to which a deceased personwas entitled by succession to any other person who has died intestate ”.The property in question would, therefore, be paraveni property for thepurposes of this case, unless it comes under the proviso to section 10 (1)which reads : —
“ Provided, however, that if the deceased shall not have left himsurviving any child or descendant, property which had been theacquired property of the person from whom it passed to the deceasedshall be deemed acquired property of the deceased ”.
392WIJEYEWARDENE SP.J.—SeLuwa v. Sirimalie.
Did Nanduwa die leaving him surviving a “ child ” within the meaningof the proviso ? The answer depends on the meaning of- “ childDoes it mean only a legitimate child or a child, legitimate or illegitimate ?
No doubt, the rule of interpretation is that, in the absence of a contraryintention either expressed or deducible by necessary inference, allprovisions respecting “ children ” contained in any laws or instrumentshaving a legal operation, refer exclusively to legitimate children (vide17 Ha.ilsh.am, Para. 1424). But a study of the provisions of the Ordinanceshows that the word “ child ” is used to mean a child, legitimate orillegitimate (vide sections 8, 16, 18, 21 and 23). I shall refer to some ofthese sections in detail. Section 23 says that “ when any person, shall-die intestate after the commencement of the Ordinance leaving no child…. the surviving spouse …. shall succeed to all the
movable property of the deceased ”. Now if the “ child ” in this sectionis construed to mean only a legitimate child, then this section will nullifysection 22 which recognizes the right of an illegitimate child to succeedto the movable property of his father, if there is no legitimate child, andto succeed to the movable property of the mother in all cases. Againsection 16 provides that, where a person dies leaving no surviving spouse-or “ child ”, the acquired property of the deceased should devolve in acertain manner on his parents, brothers and sisters. If “ child ” heremeans only a legitimate child then section 16 cannot be reconciled withsection 15 (b) which states that an illegitimate child “ shall, subject tothe interests of the surviving spouse, if-any, be entitled to succeed to theacquired property of the deceased in the event of there being no legitimatechild …. ”. Moreover, where the Ordinance has to refer to a
legitimate child only, it does not use the word “child” but “ legitimatechild ” or some such expression as “ child by a former marriage ” (videsection 11 (1) (a) proviso).
There would have been some room for doubt as to the meaning of■‘child” in the proviso to section 10 (1), if that section referred only tothe estate of a deceased male. In that case it was possible to argue thatthere was no need to refer in the proviso to the case of the deceased dyingwithout leaving an illegitimate child, as an illegitimate child could notinherit the paraveni property of his deceased father. But section 10 (1)refers to the estate of a “ deceased person ” and would therefore includethe estate of a deceased female. That is made clear by sub-sections 3 and4 of section 10. Now in the case of a deceased female, her illegitimatechildren would become entitled to her paraveni property in certaincircumstances (vide section 18). It was therefore necessary for the provisoto section 10 (1) to provide for the case of the “ deceased person ” dyingwithout leaving illegitimate children.
I think the proviso to section 10 (1) was intended to deal with caseswhere the Court has to consider the- nature of the property in order todecide, for instance, the conflicting claims of the widow and the maternaland the paternal relations of a deceased person. This proviso appears -to me to have been inserted to give effect to the “ relative signification ”of the term “ acquired property ” under the Kandyan Law referred to in
DIAS J.—Carolis Appuhamy v. Podi Nona.393
the following passage of Hayley’s Sinhalese Laws and Customs(page 221) : —
“ It would seem that the term ‘ acquired property ’ has a relativesignification, varying in accordance with the classes of heirs who claima share ; for whereas any property descended from a man’s father isinherited property for the purpose of distribution amongst his widowand children, when the contest is between maternal uncles and paternal,uncles, the former are entitled to the deceased’s acquired property -which in that case includes property newly acquired by the deceased’sfather which has descended to the deceased. This modification is alogical one ; for when such heirs as the father’s brothers succeed topart of the estate, on the ground not so much pi true succession, butrather by virtue of the principle that lands must revert to the sourcewhence they came, there is no reason for assigning to them an interestin property which was acquired separately by their deceased brotherand never formed part of the family lands of themselves or theirfather. ”.
i hold that the proviso to section 10 (1) does not apply to the propertyin question, as Nanduwa left illegitimate children.
The minors in this case cannot, therefore, get a share of the propertyin view of section 15 (a), as it is a paraveni property within the meaningof the Ordinance.
I set aside the judgment of the Commissioner and direct decree to beentered, dismissing the plaintiff’s action with costs here and in the Courtbelow.
Appeal allowed.