Sri Lanka Law Reports
 3 Sri L.R
THILAKARATNECOURT OF APPEALANANDACOOMARASWAMY, J.
DC KULIYAPITIYA 5174/LFEBRUARY 10, 1995
Kandyan Law Declaration and Amendment Ordinance Section 310 (2) -Acquired property and other acquired property – Law before and after theOrdinance as regards acquired property – Paraveni property – Inheritedproperty – Meaning after 1939 – Nithi Niganduwa.
Prior to the date of the Kandyan Law Declaration AmendmentOrdinance of 1939 where a person dies intestate and issuelesswithout leaving a child or a descendant surviving him acquiredproperty of his father which came to him by inheritance wasdeemed to be acquired property of the deceased.
The property to which one becomes entitled to on intestacy from acollateral was not regarded as ancestral property prior to theKandyan Law Declaration and Amendment Ordinance of 1939.
In the instant case what B purchased from H which became theacquired property of B is deemed to be property of A, his daughter
Tikira v Thilakaratne
who died without leaving any child or descendant and inconsidering the position regarding 1/12 share which B got on thedeath of his brother P, who died unmarried issueless in 1941 the lawapplicable is laid down in section 10 (1) – which confirms that the1/12 share to which B succeeded on the death of P becomesParaveni property of B.
APPEAL from a judgment of the District Court of KuliyapitiyaCases referred to:
Samaradasa and Dingiri Etana et al 57 NLR 333.
Appuhamyv Wijetunge 14CCR114.
Harsha Soza for plaintiff-appellant.
T.B. Dissanayake PC with B. Coswatte for substituted defendant-respondent.
May 12, 1995EDUSSURIYA, J.
The plaintiff-appellant has filed this appeal from the judgmentof the learned District Judge of Kuliyapitiya which dismissed theplaintiff's action. The facts are as follows:
It is common ground that the parties are subject to theKandyan Law. One Horatala by deed No. 5045 of 21st August,1921 sold and conveyed an undivided 1/6 of the land describedin schedule 'W to the plaint to Tikira, Bilinda and Petera. Peteradied unmarried and issueless about the year 1945 and thusTikira and Bilinda became entitled to an undivided 1/4 each.Bilinda died leaving as his heir his daughter Anulawathie. Apartition action No. 7088 of District Court Kurunegala wasinstituted to partition the said land in which Tikira was made the1st defendant Anulawathie was made the 5th defendant. AsAnulawathie was a minor, her mother was appointed asguardian-ad-litem and named the 6th defendant. Anulawathiedied during the pendency of the partition action and her motherwas appointed the legal representative. By the final decree the6th defendant in her capacity as the legal representative of thedeceased 5th defendant Anulawathie was allotted lots 4 and 4Asubject to a life interest in Horatala the 7th defendant in Plan N.6519 made by G.A. de Silva, Licensed Surveyor dated 10thSeptember, 1955. Horatala died in 1970.
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The present case before us has been instituted by the 1stdefendant in the partition case Tikira who was Anulawathie's fatherBilinda's brother against Anulawathie's mother for the declaration oftitle and recovery of possession of the said lots 4 and 4A in the saidPlan No. 6519 (which were allotted to the defendant as the legalrepresentative of the deceased Anulawathie in the partition actionNo. 7088 of District Court Kurunegala).
Firstly, it was contended that lots 4 and 4A were not allotted tothe respondent as the heir of the deceased Anulawathie in thepartition case No. 7088 of the District Court of Kurunegala.
Although, evidence had been led to the effect that therespondent was the sole heir of the deceased Anulawathie, theallotment of lots 4 and 4A had been made in that case to therespondent in her capacity as the legal representative of thedeceased Anulawathie. Thus the first contention must be upheld.
Secondly, it was contended that only newly acquired property ofBilinda would be deemed to be the acquired property of thedeceased Anulawathie since she died without leaving a child ordescendant surviving her and that rights acquired by Bilinda in 1921cannot be regarded as newly acquired property at the time he diedin 1949 which was twenty years after the acquired rights.
In this connection the Counsel for the appellant drew ourattention to a passage from the Niti Niganduwa referred to in thejudgment in the case of Samadara and Dingiri Etana e/a/C) at 333.
That was a case where a Kandyan named Patabenda acquiredthe land in dispute by purchase in 1892, and died leaving his widow,a son named Appu and three diga married daughters. Appu thusinherited the property subject to a life interest in the mother. WhenAppu died in 1919 intestate and issueless the question arosewhether for the purposes of devolution, the property was paraveniproperty or acquired property.
Their Lordships referred to a passage in the Niti Niganduwawhich indicated that when a Kandyan dies intestate andissueless, property which had previously passed to him byinheritance as the "newly acquired" property of his deceasedfather would not fall into the category of paternal or paraveniproperty, and that on the contrary must be regarded as his
Tikira v Thilakaratne
acquired property although it had come to him by inheritancefrom his father.
Their Lordships took the view that the proviso to section 10(1) ofthe Kandyan Law Declaration and Amendment Ordinance which setout that "Provided however, that if the deceased shall not have lefthim surviving any child or descendant, property which had been theacquired property of the person from whom it passed to thedeceased shall be deemed acquired property of the deceased", isdeclaratory of the earlier law.
Then again, although newly acquired properly was referred to inthe Niti Niganduwa, it does not draw a distinction between newlyacquired property and other acquired property and therefore theinference is that, prior to the date of the Kandyan law Declarationand Amendment Ordinance where a person dies intestate andissueless without leaving a child or descendant surviving him,acquired property of his father, which came to him by inheritancewas deemed to be acquired property of the deceased.
Thus, the 1/6 which Bilinda purchased from Horatala which wasthe acquired property of Bilinda is deemed to be acquired propertyof Anulawathie who died without leaving any child or descendant.
The Court will then have to consider the position with regard tothe 1/12 which Bilinda got on the death of Petera his brother, whodied unmarried and issueless in 1941.
According to the decision in Appuhamy v Wijetungaf2), propertyto which one becomes entitled to on intestacy from a collateral wasnot regarded as ancestral property prior to the date of the KandyanLaw Declaration and Amendment Ordinance of 1939.
However, since Petera died in 1941, the law applicable is that laiddown in section 10(1) (a) which states that "the expressions paraveniproperty, ancestral property or inherited property shall meanimmovable property to which a deceased person was entitled (a) bysuccession to anv other person who has died intestate
Thus, the 1/12 share to which Bilinda succeeded to on thedeath of Petera in 1941 becomes Paraveni property of Bilindain terms of section 10(1)(a) of the Ordinance.
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Thus, the plaintiff-appellant as the brother of Bilinda is entitledto that 1/12 whilst the defendant-respondent is entitled to 1/6.
The appeal is dismissed subject to the above variation. Therewill be no costs in appeal.
ANANDACOOMARASWAMY, J.I agree.
TIKIRA v. THILAKARATNE