003-NLR-NLR-V-20-TIKIRI-MENIKA-v.-MENIKA.pdf
1917.
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Present: Ennis J. and De Sampayo J.TIKIRI MENIKA v. .MENIKA.
478—D. G. Kegalla, 4,307.
Aand^an Zato—Kandyan dying leaving a widow and children oy first wife—No par&veni property—Is widow entitled to a life interest overall the acquired property of deceased t
– >yhere the entire estate of a deceased consists of acquiredproperty only, and there are children by a former marriage, thewidow's life interest extends only to a part of such acquiredproperty.
A
PPEAL from a judgment of the District Judge, Kegalla(H. E. Beven, Esq.). The facts are set out in the judgment
of Ennis J.
Gooray, for appellant.
J. W. de Silva, for respondent.
Gut. adv. vult.
February 7( 1917. Ennis J.—
This is a partition action. The lands to be partitioned belongedto one Mudianse, a Kandyan, who sold certain shares to the plaintiff.Mudianse married twice, and by his first wife, whom he' divorced,he had three children, the second, third, and fourth defendants,respondents (represented in the action by their guardian ad litem,the fifth respondent). The second wife and widow is the firstdefendant, respondent.
The contest is between the first defendant, respondent, andthe children of the first bed. It is admitted that Mudianse diedpossessed of acquired property only; he had no paraveni property.The learned Judge has awarded the first respondent a life interestin half only of Mudianse’s shares in the lands. She claims a lifeinterest in th6 whole, and appeals.
The appellant relied principally upon a passage in Armour 18, whichis to the effect that, when a deceased husband leaves both ancestralproperty and acquired property, the widow is entitled to & lifeinterest in the entirety of the acquired property.
It is clear that this passage is not directly applicable to thepresent case, as there is no ancestral property; and no definitestatement of Kandyan law has been cited to us in support of theappellant's contention that, where the estate consists of acquiredproperty only, the childless widow is entitled during her life topossess the whole, to the exclusion of the children by a previous
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marriage. If one seeks for elementary principles in the inchoateKandyan law of intestate succession, it would seem ihat thechildren of the intestate inherited the entire property, and thatthe widow obtained only a share of the usufruct “ suitable ” for hermaintenance. Where both anoestral and aoquired property wereleft, the usufruot of the. acquired property was ordinarily considereda suitable portion for the widow. Where there, was no acquiredproperty, suitable provision had to be made for the widow from theparavem property. It seems to me that in the absence of anyexpress law to the oontrary, it must be assumed that the Kandyanlaw did not contemplate leaving the children without any provisionfor their maintenance during the life of a childless widow; andjust as 11 suitable ” provision had to be made for the maintenanceof a childless widow from the paraveni property when there was noaoquired property, so suitable provision for the maintenance of thechildren should be made from the acquired property when aoquiredproperty only iB left. The allowance made by the learned JudgedoeB not seem to be inequitable, and in the circumstances 1 would' dismiss the appeal, with oosts.
De Sampayo J.—
The question in this case is whether the appellant, who is thechildless widow of Mudianse, is entitled as against the respondents,who are Mudianse’s ohildren by his first wife, to a life interest in thewhole of his aoquired property as contended on behalf of theappellant, or only in part of that property as decided by the DistrictJudge. I am inclined to think that the life interest of a widow,especially a childless widow, does not extend to the entirety of suchproperty where there are ohildren of the first bed. On this pointMarshall’s Judgments 326 states as follows: " A widow of ahusband dying childless has the same life interest, and that only inthe husband’s landed property, whether hereditary or acquired, asthe widow of a husband having issue, but if the widow be a secondwife with issue, and there be issue by a former wife, the widow orwidows must depend on the shares of their children, and if the shareof one of the widows be insufficient for her and their maintenance,the widow shall have a temporary allowance out of the other share. ”This passage is founded on Bawers' Digest 1, and Armour 84is to the same efieot. The rule here .stated appears to requiremodification as regards hereditary or paraveni property, inubmuohas it' is now well settled that the widow has no life interestin Buch property, but only a right of maintenance out of it. Thatmodification does not favour the widow, but restricts har rightsstill more. But as regards acquired property, I do not find anycomment in the books on Kandyan law showing that no distinctionarises from the fact of there being ohildren of< a former marriage.It was suggested at the argument that the rule as stated by Marshall
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had; reference only to paraveni property. But that cannot beif$: meaning, .because both paraveni and acquired property arementioned. We must, however, take note of certain judicialdecisions' bearing. on this subject. In Kalu v. Lami1 it was decidedthat, a Kandyan widow had the right to retain possession duringhex ,lifetime of the acquired property of her husband, whether suchproperty be acquired before or after the marriage. That decision,however, does. not directly touch the present question, because inthat case it does not appear that the deceased had married twiceujndthad children by the first wife. But Joshi Nona v. Babuti Nona 2is a better authority. The facts of that case are similar to thoseof. the present case,-with the difference that the deceased had leftchildren of the second bed also; and upon a review of all the"previousdepisiqns, it was.held that the widow was entitled to a life interestin all. the acquired property. There too, however,’ the point withwhich the Court was immediately concerned was an argument .thatthe widow's life interest should attach only to the property acquiredduring the subsistence, of :her marriage, and the question whetherher rights were cut down by the existence of children by a previousmarriage was not considered or decided. In this state of the lawthe point is practically res integra, and I think it is open for usto follow Sawers, Armour, and Marshall, and say that there is adistinction as to the extent of the widow’s life interest where thereare children of the deceased by a previous marriage, and that thelife interest in such a case is restricted to a part only of the acquiredproperty.- ;
Moreover, there appears' to be also a distinction discernible in theKandyan law depending on , the nature of the property left by thedeceased. The law as to a widow's rights is to be found at page 17and the following pages of Armour. After , stating that a widow isonly entitled to support out. of the paraveni property, Armour, atp&ge 18, proceeds as follows: “ If the deceased husband left otherlanded property besides his paraveni or ancestral lands, that is tosay, lands acquired by purchase, or lands which he, the deceased,had received from his adopted father, in such case the widow mayhave possession of the whole of such acquired land for the remainderof'her life."
The District Judge has, I think, rightly considered that .theexistence of paraveni property, in addition to acquired property, is acondition upon which depends the widow's rights to. a life interestin the whole of the acquired property. This appears also to be theinterpretation put upon Armour by Layard C.J. in Kalu v. Lami{supra), for the learned Chief Justice concluded his judgment, bysaying: “ We think we must follow the general rule laid down inArmour, that if the deceased, in addition to his ancestral property,left acquired lands, the .widow will * have the possession of the
1 (1905) 11 N. L. R. 223.* (1908) 2 Leader L. R. 47.
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acquired lands in their entirety for the remainder of her life/' Thereason for this is easy' to gather. The children of a man are, asappears from the other rules of inheritance under the Kandyan law,the first objects of consideration, and in the absence of patavemproperty, they would be absolutely without any provision, especiallyin the case of first-bed children, if the widow were to have possessionof the entirety of the acquired lands. 1 therefore think that where,as in this case, the entire estate of the deceased consists of acquiredproperty only, and there are children by a former marriage, thewidow's life interest extends only to a part, and presumably to ahalf, of such acquired property.
• I agree that this appeal should be dismissed, with costs.
Appeal dismissed.
1917,
Db &ATO
J.
TifetriMenihav. Mentha