043-NLR-NLR-V-06-TITTEWELLE-SANGI-v.-TITTEWELLE-MOHOTTA.pdf
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TITTEWELLE SANGI v. TITTEWELLE MOHOTTA.D. G., Kurunegala, 1,948.
1903.
February 18
and 20.
Kandyan Law—The lathimi rights of a childless widow to her husband's acquired.property, m preferencetohis half-brother—Relativeweightofthe
authority of Armour and Sowers.
Where a Kandyan died leaving acquired property, and there was acontest between his childless widow and his hall-brother for suchproperty:
Held, that the widow was his heir, and as such was-absolutely entitledto his property by lathimi right in preference to his half-brother.
The relative weight oftheopinions of Sawers andArmouronthe
point in question discussed and considered, and the latter authorityapproved and followed.
n K lands in question in this case were the acquired property
of Kiriya Gandureya, a Kandyan, who died two years beforeaction brought. The plaintiff, as Kiriya’s widow,, complained thatthe defendant, who was her husband’s half-brother, had takenforcible possession of the lands. Kiriya left no children. Hesurvived his parents. He never had a brother. He had a sister,who predeceased him, leaving no issue.
The District Judge (Mr. Mason) found that in such a case, on theauthority of Armour (Perera’s Edition, p. 23), plaintiff, as Kiriya’swidow, had an absolute lathimi right to the lands of her husband,to the' exclusion of the deceased’s more distant relatives. Headded: “ Mr. Modder’s contention that defendant being a half-brother was not a distant relation, and therefore not liableto exclusion, is untenable. The grammatical construction of thewords ‘ to the exclusion of the deceased’s more distant relations ’is to the exclusion of the deceased’s relations more distant thanthose already named, i.e., full-brothers and sisters and theirchildren.”
A decree was accordingly entered in favour of plaintiff for thelands claimed, with damages and costs.
The defendant appealed.
Sampayo, K.C., for appellant.—The passage cited from. Armour,p. 23, in support of the plaintiff’s contention, is not on all fourswith the present case, and does not apply. Armour’s illustrationwould apply . if the special conditions therein specified werefulfilled. He wrote regardless of the strict requirements ofgrammatical rules and canons of construction, as his book plainlyshowed, and Perera adopted the author’s language- in his edition.Therefore it would not be wise to be guided by the grammaticalarrangement of the phrases and sentences in Armour’s book,
2 D
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1903.Februaryand 20.
without regarding the spirit of the Kandyan Law. The con-18 eluding portion of the passage from Armour supports theappellant’s contention, that plaintiff cannot succeed to theexclusion of the defendant. A childless widow may succeed, butit was only in very exceptional cases, and the exception mentionedby Armour receives support from Sawers, who gives anotherillustration: “but if the barren widow be the husband’s paternalaunt’s daughter or his maternal uncle’s daughter, she inherits,,next to full-brothers, the acquired lands’’:—all which clearlyshowed that it was only in rare instances that a childless widowsuceeded. None of the exceptional circumstances referred toin the above illustration were proved to exist in the present case.
Unlike in other cases, the presumption did not arise here thatthe lands in question were acquired through the assistance andthe industry of the widow. Under the circumstances, therefore, allthat the widow might fairly and reasonably expect was main-tenance out of the estate, but not the entire estate—which wasa large one—and which ought to revert to the rightful heir, theappellant, and be thus conserved in the deceased’s family, to whichrespondent was a stranger. That is a ruling principle of theKandyan Law.
A. Jayawardene, for respondent.
Cur. adv. vult.
20th February, 1903. Layard, C.J.—
The plaintiff complains that the defendant, who is Kiriya’s half-brother, has taken forcible possession of certain lands.
The Judge has held that (1) the lands claimed in this suit werethe acquired property of one Kiriya Gandureya, a Kandyan; (2)plaintiff is Kiriya’s widow; (3) Kiriya left no children; (4) Kiriyasurvived his parents; (5) Kiriya never had a brother; and(6) Kiriya had a sister, who predeceased him, leaving no issue.
On the authority of Perera’s Armour, p. 23, he finds thatplaintiff, Kiriya's widow, has an absolute right to the landsbelonging to Kiriya by right of acquest, to the exclusion of thedeceased’s more distant relations. It is admitted that no case inpoint is to be found in the books or in the decisions of theSupreme Court, but it is contended in appeal, on the authority ofMr. Justice Lawrie, that Mr. Armour’s opinion ought not to begiven the same weight as Mr. Sawers’, and it is pointed out thatMr. Sawers ( Campbell’s Edition, p.' 23) restricts the right of awidow to inherit next to the full-brothers of her husband to thecase in which the widow is the husband’s paternal aunt’s daughter.The two authorities cited undoubtedly disagree.
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To justify us in setting aside the judgment of the DistrictJudge, we must be satisfied that the authority of Sawers ought tohave more weight given to it than Armour. It is true that in theoase reported in 3 N. L. R. 378 Mr. Lawrie said that Mr. Armour’sopinion ought not to be given the same weight as Mr. Sawers’.
" This opinion is directly opposed to what Mr. Lawrie gaveexpression to in an unreported case (C. B., Kurunegala, No. 4,944,November 12, 1897). He there lays down that Sir CharlesMarshall, whom Dias, J., praises as the best writer on KandyanLaw, did not profess to know much about it. His. paragraphs aretaken from Sawers’ Digest, but Sawers was Judicial Commis-sioner in Kandy soon – after 1815, and is no mean authority,though T think, when he and Armour disagree, I prefer tofollow Armour.”
I am indebted for this last authority to that valuable anduseful treatise on Kandyan Law by Mr. Proctor Modder,* who, indiscussing the relative value of Sawers’ and Armour’s opinions,points out (p. xii of the preface to that book) that ” Armour wasnot only a Judge—not that being a Judge [Mr. Modder thinks]necessarily adds to the weight of one’s authority—but a Sinhalesescholar, a qualification which Sawers lacked, and an apt studentpossessed of an inquiring turn of mind and imbued with ananxiety to acquire the best information on any subject he wasinterested in. His long and extensive intercourse with theKandyan chiefs and Buddhist priests, with whom he, as inter-preter and secretary, came into daily contact for upwards of.eighteen years, gave him an insight into the laws,- customs, andusages of the Kandyans, which few people differently placedcould have obtained. Moreover, he was constantly surrounded byrecords of the Judicial Commissioner’s Court, and made the bestuse of them by noting down points of interest and importance, sothat, as pointed out by Carr, C.J., the authority of Mr. Armour,founded as it is on a series of decisions of the late JudicialCommissioner’s Court, is certainly entitled to greater weightthan is sought to be assigned to it.”
In a note to p. xiii of the same preface I find the following:—“ The late Mr. C. L. Ferdinands, Solicitor-General, and after-wards District Judge of Colombo, who stood in the first rank ofKandyan lawyers, in arguing a point of Kandyan Law before theSupreme Court in appeal said: ‘ The point was a new one, but
* “ A Treatise on Kandyan Law, collated from the works of D’Oyly, Sawers, andArmour; with the case law bearing on the subject, systematically arranged forfacilitating reference; and with an introduction by Frank Modder, Proctor,Supreme Court, Ceylon. Life Member of the Ceylon Branch of the Royal AsiaticSociety.” Albion Press, Galle, 1902.—Ed.
17-
1903.
February 18and 20.
Latakd, CJ.
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1903. Armour was a safe authority on such questions.’ Creasy, C.J., inTdtruary 18 upholding the contention of ^Tr. Ferdinands, ruled: ‘ It seems***** to us that the District Judge did right in following the authorityLayabo.CJ. of Armour.’ (D. C., Kandy, 56,750; 2 Grenier, 1873, pt. III.p. 25.)"
I am not convinced that on every occasion we ought to givegreater weight to Sawers’ opinion than to that of Armour. TheDistrict Judge has followed the latter, and I am not prepared tosay that in the present case he was wrong in doing so. There isnothing to show me that Sawers’ opinion on this particular pointshould be given greater weight to than Armour’s, and as I cannot6ay that the District Judge is wrong in following it I wouldaffirm the judgment of the Court below.
As pointed out by the respondent’s counsel, the particularpassage relied on by the District Judge is cited with approval byPhear, C.J., in a judgment of the Full- Court (Punchirala v.Punchi Menika, 2 S. C. G. 44), and I consider that approval shouldnot be lightly disregarded, and that no sufficient reasons have beenshown why we should not follow the opinion of Armour in thisparticular case. The judgment of the District Judge must beaffirmed with costs.
Moncreiff, J.—
I agree that we should follow the law as we find it in Armour.The passage quoted from Sawers has some appearances of being atvariance with Armour; but it does not contradict him, and it doesnot enable me to say with certainty what Sawers would havesaid if the precise case contemplated by Armour had been put tohim.