088-NLR-NLR-V-72-SUJATHA-KUMARIHAMY-Appellant-and-S.-R.-M.-DINGIRI-AMMA-and-others-Respondents.pdf
Sujatha Ktttnarihamy v. Dingiri Atnma409
——— – . „
1969 Present:H. N. G. Fernando, C.J., Weeramantry, J., and
Wijayatilake, J.
SUJATHA KU-UARIHAMY, Appellant, and S. R. M. DIKGIRIAIVDIA and others, Respondents
S. G. 121 {1965—D. G. Kvrunegala, 1132 (PKandyan law prior to 193S—Inheritance of paternal property by intestate heirs—Subsequent physical division of some of the undivided lands by theco-heirs by notarial deed—Whether a land owned dividcdly thereafter by a co-heirshould be regarded as entirely paraveni—Concept of “ paraveni ” prior to J93S—
“Acquired property ”—Kandyan Law Declaration and Amendment Ordinance,xVo. 39 of 193S, ss. 10, 27.
Held, by IT. N. G. Ferxaxdo, C.J. and Weeramantry, J. (Wijayatij.ake, J.dissenting), that, under the Kandyan law prior to tho ennctmcnt~of thoKandyan Law Declaration and Amendment Ordinance of 1938, when co-heirswho inherited several lands from their father who died intestate divided someof the lands phj sically between themselves by subsequent mutual agreementby tho execution of a notarial deed in such a manner that they becamesolo owners of specific and separate portions, any one of such separatolands became “paraveni” property entirely in the hands of its owner andno portion of it partook of the character of “acquired” property.
One Appuhamy, who was subject to the Kandyan law, died intestate leavingns his heirs two children K and D and several lands. By deed PI of 13thOctober 1S93, K and D divided part of their inheritance in such a mannerthat K became the sole owner of sixteen lands and D the solo owner of twenty.
It was further agreed that the other lands which they inherited were to bepossessed in common.
Tho question for adjudication in the present appeal was whether Paragaha-pitiyahena, which was one of tho lands of which K became sole owner under thodeed PI of 13 October 1S93, was entirely “ paraveni ” in the hands of K or whetherit partook of this character only in part. It was held by the trial Judge thatinasmuch as K and D each bccamo entitled on Appuhamy's death to an un-divided half share in each of his lands, and inasmuch os K’s title to the otherhalf share of Paragahapitiyahena rested solely on the document PI, such latterhalf share was derived by acquisition from a collateral and not by inheritancefrom a parent and thus constituted “acquired ” property in his hands.
Held, by the majority of the Court, that Paragahapitiyahena was entirelyparaveni in K’s hands inasmuch as it was property coming to him by right ofpaternal inheritance and attributable to no other source, despite tho fact of theexecution of PI. In such a case, prior to the enactment of the Kandyan LawDeclaration and Amendment Ordinance of 193S, what paraveni in effect meansi3 that which each heir gets in his capacity as heir, and, in considering whatproperty was paraveni and what acquired, the old Kandyan law would considerthe concrete thing to which a person so succeeds rathqr than indulge iq anabstract analysis of legal concepts,
Lxxrr—181*—J 11085—2255 (2/70)
410 H. N. G. FERNANDO, C.J.—Svjatha Kumarihamy v. Dingiri Amnia
Appeal from a judgment of the District Court, Kurunegala.
H. V. Perera, Q.C., with T. B. Dissanayuke, Sepala Moonesinghe and.Nairn Abeysekera, for the 2nd defendant-appellant.
H. W. Jayeicardene, Q.C., with IK. D. Gimasekera, M. Sanmuganathanand W. S. Weerasooria, for the plaintiffs-respondents.
Cur. adv. vxdt.
October 28, 1969. H. N. G. Fernando, C.J.—I have had the advantage of considering the drafts of the twojudgments prepared by the other members of this Bench. I agree entirelywith the reasons which have been stated by my brother Weeramantry forhis conclusion that the appeal be allowed and the plaintiffs’ actionbe dismissed with costs in both Courts. I need only to add some briefobservations of my own.
The proposition that in ancient societies a physical division or distri-bution of property was made among the heirs of a deceased person is soreasonable that one scarcely needs for it the support furnished by thereferences cited in my brother’s judgment. In the earliest times, chattelswere probably the sole subject of such a division or distribution, for theconcept of ownership of land develoj^ed only at a later stage. That beingso, the custom of a physical division of chattels would probably have beenfollowed and applied subsequently in the case of land as well.
The right which an heir in early times enjoyed on the occurrence of adeath was the right to take a portion of the deceased’s chattels or land,and his ownership or title would in reality have commenced only afterhe came into possession of the portion in the exercise of his right to adivision. The concept that at a moment of a death each heir became theowner of some portion of a deceased’s chattels or land, would in myopinion be too sophisticated for recognition in an ancient society, forphysical possession was the distinctive mark of ownership.
In the case of land, a division among heirs could take different forms,but it is easy to envisage that ordinarily the division took one or two forms.Firstly, that each heir took for himself some separate lands, or separateportions of land, and secondly, that instead of a physical division the heirsdecided that each of them should own a share of all the lands. But ineither case each heir ultimately held his separate lands or sei>arateportions, or else his shares in each land, by virtue of the fact of division.
If this was not the case, then upon the death of every person leaving aplurality of heirs, the stage of separate ownership would invariablj* havebeen preceded by some interval, however Jong or brief or momentary,during which each heir had a right of ownership over all the propertyof the deceased. In the case where the heirs ultimately held only sharesin one or more lands, the legal position in my understanding is that theright of ownership in common flowed either from an actual decision for
WEERASLAXTRY, J.—Sujatha Kutnarihamy v. Dingiri Amma
411
the holding of property in such shares, or else from an implication, arisingupon the known facts, that such a decision had actually been made.Such an implication could well arise even from the single fact that theheirs did not exercise their rights to take separate portions on a physicaldivision. I think therefore that when heirs who are subject to theKandyan Law do possess in common the lands of the deceased, there is apresumption that they have decided to hold shares in common. But ifa division into separate portions takes place within a reasonable timeafter the death, then the division is referable to an antecedent intentionto take separate portions, and the presumption of common ownership isthus displaced.
I accordingly agree that the lands which Kiribanda took scjjaratelyunder the division by PI of 13th October IS93 were lands which heinherited from his father and were therefore paraveni projjerty.
Weeramantry, J.—
One Appuhamy, a person subject to the Kandyan law, died intestateleaving two children, Kiribanda and Dingiri Amina. The several landsbelonging to him thereupon devolved upon these two persons, who byrdeed PI of 13th October 1S93 divided their inheritance in such a mannerthat Kiribanda became the sole oinicr of sixteen lands and Dingiri Ammathe sole owner of twenty. It was further agreed that the other landsinherited from Apimhamy were to be possessed in common.
The question arising on this appeal is whether a particular land, knownas Paragahapitiyehena, which fell to Kiribanda upon this division, wasentirely paraveni in his hands or whether it partook of this characteronly in part. The question assumes importance in the context of apartition action instituted by certain illegitimate children of Kiribandawho claim interests in Paragahapitiyehena on intestacy. The appellant,a transferee from some of Kiribanda’s legitimate children, seeks thedismissal of this action on the ground that this land was entirelyparaveni property in the hands of Kiribanda, and that the plaintiffs,being illegitimate children, are not entitled to any share therein.
The learned District Judge has held that these lands were paravenionly in regard to an undivided half share therein, and acquired, in regardto the other undivided half. This conclusion was reached on the basisthat inasmuch as Kiribanda and Dingiri Amma each became entitled onAppuhamy^s death to an undivided half share in each of his lands, andinasmuch as Kiribanda’s title to the other half share of this land restedsolely on the document Pi, such latter half share was derived byacquisition from a collateral and not by inheritance from a parent andthus constituted acquired property in his hands. –
On behalf of the appellant it is argued that Paragahapitiyehena wasentirely paraveni in Kiribanda’s hands inasmuch as it was propertycoming to him by right of paternal inheritance and attributable to noother source, despite the fact of the execution of Pi.
412
WEERAMANTRY, j.—Sujatha Kumarihamy v. Dingirl Amnul
The question before us is one winch arose long anterior to the enactmentof the Kandyan Law Declaration and Amendment Ordinance of 193S,and is not therefore affected or governed by the definition of paraveniproperty therein contained. Moreover this definition is partly declara-tory of the pre-existing law and partly amending, and the Ordinance byitself would hence be an uncertain guide in regard to the pre-existing law.It is hence necessary to examine the nature of the concept of paraveni inthe Kandyan law independently of this statute.
The expression “paraveni” carries varying connotations in varyingcontexts. Por example Hayley enumerates a number of paravenitenures in relation to lands alienated in fee simple.1 So also the word issometimes used in contradistinction to maruveni tenure.2 Again,
. the expression may bear different meanings depending on the class ofheir who claims a share in the property.3 However, in the context withwhich we arc concerned, the word is used in a sense opposed to acquiredproperty, the word paraveni carrying the contrasting connotation of thatwhich is inherited.4 .
Property derived by any other source of title or by any other meansthan inheritance was regarded as acquired,3 and the average Kandyanspoke of paraveni property as contrasted with " athmudalatagath ” orpurchased property.6 So important was this distinction that the-Kandyan Law Commission-observes in its Report that it is the pivoton which the whole law of succession turns, and/according to Hayley, itwas rooted in the desire to keep} the family property in the hands ofthose who bore the family name.7
I must stress that the problem we are here considering is one relatingsimplj' to the classification of property into one or other of the broadcategories of paraveni and acquired, and not the question of the precisemanner of devolution of property under the Kandyan law today. Theconcepts of paraveni and acquired property come down to ns from thepast and since their meaning lias, so far as we arc aware, been constant,the ancient bases of classification must still hold good. In order to decidethe matter before ns it seems necessary therefore to view the transactionas it would have been viewed under the Kandyan law, before the adventof modem notions of testamentary law and procedure ; and if in.theinstance before us the Kandyan law would have regarded the propertyin the hands of Kiribanda as paraveni, rather than acquired, or vice versa,the fact that we arc considering the problem in modem times should notbe permitted to affect this result, or to cause property falling within onecategory to move over into the area of the other.
1 Sinhalese Laus and Customs, p. 219.
3 Modder, Kandyan Law pp. 100,191 ; Khi Mcnika v.Mulhu Mcnika 11S99)
3 N.L.IL 37G.
9 Hayley, Sinhalese Laws and Customs, p. 221.
Lebbc i?. Banda,(192S) 31 N.L.R. 2S at 31.
Sec also paragraph 122, Report of the Kandyan Law Commission; Komalic v.
Kiri (19JJ} 13 A .L.U. 311 at 371; Kiii Mcnika ct al. v. Muthu itlenika 11S99)
3 X.L.R. 370.
Report of the Kandyan Law Commission, paragraph US.
7 p. 347.
WEEBA5LVXTRY, J.—Sujatha Kitmarihamy r. Dhtgiri Amma
413
Hay Icy reminds us that “ before the introduction of British ideas theformal administration of estates, the appointment of administrators,filing of accounts and all the paraphernalia of modern testamentary orpartition proceedings Mere practically unknown ”.1 In view of this thelearned author observes that a vagueness of legal ideas and terminologywas only to be expected and that the administration of justice was largelyempirical, often taking the form of equitable settlement. The respectpaid to the mother and the desire to keep the family property togetherwould in man}' cases lead to a common en joyment of the estate under thedirection of the mother or elder brother until such time as one cr the otherof the heirs wished to have his portion divided off. At this stage the sonsand the binna-married daughters took the property to themselvesabsolutely, while the acquired property was given to the widow for life.2
There are also many other passages in the texts indicating that thenotion of ph3*sical division of an inheritance among intestate heirs -wasone with which the Kandyan law 'was quite-fanTiliar:—Thus Sawcrs3—speaks of the division of an inheritance into two or more shares ■whena man has children by different wives, and goes on to speak of estateswhich are enjoyed undividedly by two or three brothers. In this contextit is clear that in certain instances there was division and in certain othersthere was not.4 Physical division of an inheritance is also implicit in thepassage to which I shall shortly refer, relating to the assignment of themulgedera to the eldest son. Again, Hayley, while observing that theredid not appear to have been any proceeding among the Kandyans inthe nature of formal administration, notes that certain practices wererecognised regarding management of assets, paj'ment of debts and divisionof the property.6
If upon such a division between two heirs of a person who left twoparcels of land, each heir took the entirety of one land, would the Kandyanlaw have regarded such land in the hands of one heir as partly paraveniand partly acquired from his co-heir or as entirely paraveni ? If thecontention of the respondent is to succeed, we must be able to say thatthe Kandyan law' looked upon this situation by considering that the estatedevolved in such a manner as to give equal undivided shares in eachproperty to each heir and that the heirs notionally went through aprocess of cross conve3*ances to each other. It accords far more withreality to expect this situation to be viewed as one of simple inheritanceby each heir to the property of his choice.
Much light is thrown upon this by the reference we find in Hayley 6 tothe practice by which the eldest son out of respect for his age was generallyallowed the “ mulgedera ” or the ancestral home. Upon the contention
1 Pp- 350—J.4 See also Satcera pp. 12—13.
* p. 351.5 Hayley 492. Seealso pp. 359-61.
8 Memoranda atp. 5—see Hayley appendix at p. 8.* op. cit., p. 331.
!•*—J 1198S (2/70)
414
WEERA3IANTRY, J.—Sujalha Kurnarihamy r. Dingiri Amnia
of the respondent this home Mould in every case where there are morechildren than one be held by such eldest child only as paraveni in regardto such undivided shares of his father’s estate as have devolved upon himand acquired in regard to such undivided shares as have come to him byexchange from his brothers and sisters. Thus a mulgedera falling to theeldest of five children upon such a family division would, in his hands,be paraveni only in regard to an undivided one fifth share thereof and tireother four fifths would upon his death pass outside the legitimate line.It seems manifest that such a situation does not accord with the spirit ofIvandyan law or with the nature of the division that must have been socommon a feature in ancient times ; and it seems inconccivable that'themulgedera should be permitted so easily to pass out of the family b3rreason of its paraveni content being rendered subordinate to its acquiredcontent in the very act of division of an inheritance.
Mr. Pcrera for the appellant rightly submits that what paraveni in •effect means is that which each heir gets in his capacity as heir, and thatthe Kandyan law in considering what property was paraveni and whatacquired, would consider the concrete tiling to which a person so succeedsrather than indulge in an abstract analysis of legal concepts.
This view fits all the more readily into the framework of a law ofsuccession which did not operate through the elaborate processes ofmodern administration or the precise logic of an immediate vesting.Against this background it is difficult to think that the Kandyan law inevery case treated every item of property of a deceased person as vestingimmediately in undivided shares in liis heirs. If this be so it would leadto the curious result that there would be no single item of property to whicha person could become entitled exclusively as paraveni where the deceasedhas left more than one child, for since death would precede division even bya moment of time,a separate item of property falling to one heir upon adivision would alwaj*s come to him partly by succession and partly byacquisition. This is indeed a situation too far removed from reality tocommand acceptance when one considers such common examples as themulgedera which had so much significance for that society.
Moreover under the Kandyan law no deed of transfer was essential inorder to pass title to land, so that the question whether a particular heirsucceeded to a particular land was dependent not on legal formalities suchas deeds executed by the heirs but on practical facts such as actualpossession and enjoyment, whether following upon an actual division,or upon a division which might fairly be presumed from known facts.The authorities show that upon a division, which would usually be bymutual agreement, each heir might take particular lands or parts of laudfor liis inheritance, or that alternatively the heirs may take undividedshares iii one or more lands which would then be held in common owner-ship. The title of each heir would thus depend on mutual agreement.either actual or presumed, as to the succession. Such lands or separateportions or alternatively each such share, would to the mind of the heir
WEERAMAXTRY, J.—Sujatha Kumarihamy v. Dingiri Amma
415
so succeeding and to the society in which he moved, be attributable to noother source of title than succession. Furthermore inasmuch as theconcept of paraveni evolved and had its being in the informal settingwhere deeds were not requisite, it is against that setting that it is necessaryto view the question before us. The requirement of a deed is no doubtessential today for a convc3'ance of legal title upon such a division, butto lajf too much stress on this modern and adventitious requirement isto obscure the practical simplicity of the Kandyan law of inheritance bya reliance on alien concepts and technical modes of thought.
Mr. Perera, in the course of his submissions, stressed the concept of aunity of title in the heirs as a group. In so doing lie drew our attentionto the fact that Hayley commences his discussion of the Kandyan law ofintestate succession1 by citing a significant passage on this principlefrom Maine’s Ancient Law 2. In this passage that distinguished juristobserves : “ We know of no period of Roman jurisprudence in which theplace of the heir or universal successor might not have been taken by agroujj of co-heirs. This group succeeded as asingleunit, and assets were ~afterwards divided among them in a separate legal proceeding .. . Themode of distribution is the same throughout archaic jurisprudence …”
This passage contains the idea which seems in early systems of law tohave characterised intestate succession and may well contain the basicidea uuderlj-ing intestate succession among the Kandyans as well.
Indeed, though the modem law of Ceylon is entirely different, the sameidea seems not unfamiliar even to the Roman-Dutch law. In discussingthe actio familiae erciscundae, the action for the division of a familyinheritance, Voet observes3 that division may take place by consentamong co-heirs and that such division is fettered by no fixed rules butis carried out in the manner appearing most advantageous and convenientto the persons dividing. They may decide for example that the elderdivides the property and the younger chooses, or settle by lot to whomeach share ought to fall, or let each single property go to the highestbidder, or plan that the whole inheritance should stay with one personand that he shall pay the rest a fixed sum of money.
Moreover, interesting traces of the concept of the heirs’ unity of titleare still discernible in such provisions of modern law as Item 29 ofSchedule A, Part I of the Stamps Ordinance, and section 741 of theCivil Procedure Code. The former renders deeds of exchange betweenco-heirs subject to only a nominal stamp duty, while deeds ofexchange even between co-owncrs attract the stamp duty appropriateto the value of the property exchanged. The latter provides fordelivery of items of movable or immovable property to persons entitledto distribution of an estate, where all interested parties consent inwriting to such arrangement.
1 Haylty op. cit. p. 330.* p. 227.
* 10.2.2.4IG
WIJAYATILAKE, J.—Sujatha Kumarihamy v. Dinyiri Amnia,
It would thus appear that in attributing to the Kandyan law the notionthat an heir taking a particular property takes it by inheritance, we giveeffect to no principle which is unfamiliar to the law but rather to onewhich accords with the mode of thinking of many a legal system andwhich one of the foremost authorities on the Kandyan Jaw thought fitto set out in the forefront of his discussion of the Kandyan attitude tointestate succession.
Had the matter before us been then a division of paternal propertyunder the Kandyan law prior to the superimposition on that system ofmodem, testamentary and conveyancing rules, Paragahapitiyehenawould unquestionably have been considered as paraveni in Iviribanda’shands. Considering as I do that the sariic classification must apply tothe same type of division occurring at the present day, I have littledifficulty in concluding that the appellant’s contention is entitled tosucceed. I would therefore allow this appeal and dismiss the plaintiffs*action with costs both here and in the court below.
Wijayatilake , J.—
The principal question in this appeal is one of the Kandyan Law ofinheritance. The answer to this question involves the construction andinterpretation of the deed 15496 of 13.10.1S93 (P1)/{2D13).
It is common ground that the parties arc subject to the Kandyan Law. .One Sri Ratnayalce Mudij'ansclage Appuhamy was the owner inter aliaof the 3G lands dealt with in PI. He had died intestate in respect ofthese lands leaving as his heirs his children Kiri Banda and Dingiri Animawho became entitled to all these lands in equal shares. Admittedly, thelands they so inherited constituted their paraveni property. Thereafterthey had executed the deed in question PI in 1S93. According to theplaintiff’s translation it recites that “the undermentioned lands werepossessed by the said two persons in common b3T right of paternalinheritance from their father Sri Ratnayakc Mudiyanselnge officer and.the said Kiribanda and Dingiri Amma have divided the said lands in thefollowing manner: The undermentioned lands are allotted to the saidKiri Banda (20 lands set out). The following lands are allotted to thesaid. Dingiri Amma (1G lands set out)
It would appear that the land called Paragahapitiyehena which is thecorpus sought to be partitioned in this case is the first of the 20 landsallotted by deed Pi to Kiribanda. This deed further provides that theother lands be held in common by the said Kiribanda and Dingiri Amma.The relevant clause in the translation 2D13 reads as follows : “ The saidKiribanda and Dingiri Amma by right of paternal inheritance from SriMudiyanselage Appuhamy officer arc held and possessed in common ofthe following lands and they have amicably agreed to divide the saidlands between them in the following manner:—And that in-the said
WTJAYATILAKE, J.—Sujafha Kumarihamy t Dingiri Amnia ,417
division the following lands were given to the said Kiribanda, to wit (20lands set out). The following lands were given to the said Dingiri Amnia(16 lands set out) ”.'
^- s.
The question which has arisen for adjudication is whether on theexecution of deed Pi the half share of Dingiri Amma in the 20 lands, ofwhich the corpus is one, to which Kiribanda became entitled shed its“paraveni ” character and became his “acquired ” property.
Therefore, it would appear that the crucial question for considerationis the effect of this transaction in the context of the Kandyan law ofinheritance.
Mr. H. V. Perera, learned Queen’s Counsel, appearing for the 2nddefendant-appellant has stressed the necessity to take a realistic view ofthis “ amicable division ” of family property and not to give too legalistican interpretation to this transaction by permitting the deed PI to nullifythe intentions of the parties. He submits that although these propertieswere acquired~by Appuhamy on decd No. 3741 ofl5.5 .ISSltheyAvereparaveni in the hands of his children on his death intestate and theycontinued to be paraveni despite the deed Pi of 1893 whereby theysought to make a “ distribution ” of some of the properties they hadinherited from their father. Mr. Perera very strenuously submitted thatit would be quite contrary to the spirit of the Kandyan Law of intestatesuccession to permit the deed PI to destroy the essential character ofthese paraveni properties. He has drawn our attention to the observa-tions made by the Kandyan Law Commission as to the meaning ofparaveni” property. See Sessional Paper 24/1935, pages 16 to 19. TheOrdinance No. 39 of 193S which adopted some of these recommendationssought to define the expressions “paraveni” and “acquired”. However,as Sir. H. W. Jayewardene, learned Queen’s Counsel, appearing for therespondents submits the definition given in this Ordinance is of norelevance in the instant case as section 27 expressly enacts that itsprovisions shall not have and shall not be deemed or construed to haveany retrospective effect except where express provision is made tothe contrary. Therefore we have to fall back on the Kandyan Law asit was prior to this Ordinance.
We have to constantly keep in mind that the Kandyan Law classifiesproperty with reference to the manner in which a person becomesentitled to property. The distinction would really be between inheritedand property acquired otherwise than by inheritance. Vide Kalu Bandav. Mudiyanse 1 ; Lebbe v. Banda 2. It has even been held that a gift orsale by a father of his inherited property to his son becomes acquiredproperty in the hands of his son. Vide Ukkuica t>. Banduua 3 ; Tenne-koongedera Ukkurala v. S. W. Tillekeratne 4. No doubt, section 10 of theOrdinance No. 39 of 1938 seeks to bring about a change on the lines of
1 (1926) 28 24. L. R. 463.* (1916) 19 N. L. R. 63.
* (1929) 31 N. L. R. 28.* (1882) 5 S. C. G. 46.
41S
WIJAYATILAKE, J.—Svjatha Kumarihamy v. Dingiri Amina
Mr. Perera’s submissions but I am inclined to agree with Mr. Ja3'ewardenethat it has no application to the facts before us. Section 27 makes itquite clear that it is not retrospective in operation. In my view theReport of the Kandyan Law Commission and the subsequent legislationare of little avail to the appellant. In fact, in the light of section 27 theyappear to confirm the position of the respondents.
Mr. Perera has very cogently argued that on a first appraisal of thequestion before us one may be led to an erroneous 'conclusion by theintervention of the deed Pi and he has therefore submitted that thebackground of this transaction has to be kept in mind and we shouldtake a realistic view of this “ distribution ” of family properly. Withgreat respect it appears to me that there is a two-fold fallacy inhis submissions ; firstly in regard to the character of the property andsecondly in regard to the nature and effect of the deed PI.
• The character of “paraveni ” is not something that the property acquiresat the time of the death of the owner, but it is a character that theproperty assumes at the time that a person becomes entitled to it. Inthe instant case when the two children succeeded to Appuhamy’sproperties they assumed the character of “paraveni ” but when the childrensought by the deed PI to put an end to the common ownership of 36lands of this inheritance clearly Kiribanda became entitled to the half-share owned by Dingiriamma in the 20 lands not by virtue-of successionfrom his father but by virtue of the deed Pi. On this deed Kiribandahas, in my view, clearly acquired the rights of Dingiriamma to the 20lands dealt with, of which the corpus in this action is the first. In thiscontext we have to recognise the significance of only a portion of theinheritance being dealt with in PI. With great respect in my view thelegal effect of Pi is the crucial point in this case. The question is notwhat the parties intended to do by entering into this deed, but what isthe meaning of the words used in the deed and what is their legal effect.Vide Jinaraina Thero v. Somaralna Thero
As Mr. Jaycwardene submitted the simjfie question is how Kiribandabecame entitled to the half-share of his sister. The answer is clear thatit is by virtue of PI. Therefore this half share on the execution of PIceased to be “ paraveni ” proi^erty and it assumed the character of“acquired” property in the hands of Kiribanda. This deed has beencalled a deed.of partition and/or a deed of exchange. However, on aperusal of its terms it would appear that it contains cross-con ve3*ances.Dingiriamma has parted with her half share in the 20 lands and got inreturn a half share of 1G lands. These parties ma3* have had good reasonto part with these shares in these particular lands. This would, in myopinion, provide the consideration for the cross-convc3’anccs contained in.this deed which ultimately vests title in the parties in respect of thehalf-shares dealt with.
1 (1946) 47 N. L. li. 22S.
H. N. G. FERNANDO, C.J.—Dharmasena r. Nava rat >ic
410
The expressions “ancestral” property and “paraveni ” property arenot synonymous. It was submitted that the people in the area wouldcontinue to refer to these lands dealt with in this deed as the ancestralproperty of Kiribanda; but here we are concerned with the distinctionbetween “ paraveni ” property and “acquired ” property and we have toface the legal effect of the transaction contained in PI.
Mr. Perera has relied on a passage from Hajdey at page 221 dealingwith the meaning of “acquired” property, but I do not think it is ofmuch avail or significance in the context of this case where the deed Piplays such a vital role. In the absence of PI, if there was only an oralarrangement, for instance, the position would have been different. Withgreat respect I am unable to agree with/jjudgments of lily Lord the ChiefJustice and my brother Weeramantry.
I would accordingly dismiss the Appeal with costs.
Appeal allowed.