024-NLR-NLR-V-63-U.-BABI-Appellants-and-H.-V.-DANTUWA-and-others-Respondents.pdf
L. B. DE SELVA, J.—Babi v. Dantuwa
130
1961Present: Weerasooriya, J., and L. B. de Silva, J.U.BABI, Appellant, and H. V. DANXUYVA and others, Respondents
S. G. 319—D. C. Badidla, 13061
Kandyan Law—Death of husband intestate—Right of widow to sell immovable properlyof the deceased—Scope.
Under the Kandyan Law a widow without minor children has no right tosell the immovable property of her deceased husband for the payment of hisdebts. Such a sale cannot convey good title as against the other heirs of thedeceased.
-^^•PPEAJL from a judgment of the District Court, Badulla.
T.B. Dissanayake, for the Defendant-Appellant.
No appearance for the Plaintiffs-Respondents.
Cur. adv. vuU.
February 28, 1961. L. B. de Silva, J.—
The Plaintiffs claimed the lands in suit by inheritance from theirdeceased brother Himiya, subject to the life interest of his widow Muthi.Plaintiffs concede that the life interest of Muthi has now devolved on thedefendant on Deed No. 362 (D 17) of 27th July, 1955.
The defendant Appellant claimed the entirety of the said lands ontwo grounds :—
As the adopted daughter of Himiya.
The Deed D 17 was executed by the widow of the deceased to
settle his debts and it conveyed the rights of the deceased to thedefendant-appellant.
140
Ij. B. BE SELVA, J.—Babi v. Danttiioa
The learned District Judge has held that the defendant has failedto prove that she was adopted by the deceased for purposes of inheritance.We see no reason to interfere with the finding of the learned DistrictJudge on this point.
On the 2nd ground, the learned District Judge has held that thedefendant has failed to prove that it was necessary for the widow to sellthese lands for the payment of the deceased’s debts, though some debts ofthe deceased were in fact settled by the widow by the said sale.
We were prepared to hold in this case that the widow sold the saidproperties upon this deed (D 17) to settle the debts of the deceased andthat it was necessary for her to do so for this purpose.
The parties are governed by the Kandyan Law. We heard Counsel forthe Appellant further on the question whether a Kandyan widow whohad no children, was entitled to sell the immovable property of herdeceased husband to settle his debts, in so far as it affected the rightsof the deceased’s other heirs.
We are indebted to the learned Counsel for the Appellant for theassistance that he has given us on this matter, which involves a difficultquestion of Kandyan Law, specially as the respondents were unrepresentedin this appeal.
It has been held in Appuhamy v. Kiri Henaya 1 as follows :—
“ A widow left by her husband’s death with young children wasby Kandyan Law the head of the house and family until her sonsgrew up to manhood. She had the right to give her daughters outin diga, on her devolved the duty of paying her husband’s debts.Administration of an intestate’s estate was unknown to the KandyanLaw. The widow held the position and owed to her children andto her husband’s creditors the duty which now is laid on a legalrepresentative. ’ ’
It was held in that case that the sale by the widow of the acquiredlands of her deceased husband, conveyed good title as against the son ofthe deceased.
In that case Lawrie J. was dealing with the right of a Kandyan widowleft with a young son at the death of her husband, to sell the acquiredimmovable property of her husband, to settle his debts.
In Supen Chetty v. Kumarihamy 2 Middleton J. held as follows :—
“ Looking at the position of the diga widow generally as disclosed inArmour and Sawer and the words of the second paragraph of page 18of Sawer, I would hold that the meaning of the words following inparagraph 9 page 18 of Sawer is that the widow is not liablepersonally but as a sort of administratrix to see that the debtsof the deceased are paid whether she inherits as a childless widowor does not inherit as in the case where she has children. Although *
1 {1896) 2 N. L. It. 155.
* {1905) 3 Balasingham’s Reports, 96.
L. B. DE SIL.VA, J.—Babi v. Hantutoa
141
she does not inherit, the ‘property is more or less under her controlespecially if there are minors and this I would infer is the reasonwhy the liability to pay the debts is put on her."
He further stated at page 98, ** It would seem that a diga marriedwidow may only inherit when she is left childless ” and cited “ Armour’sGrammar of the Kandyan Law ” by Perera (p. 22) referring to the autho-rity of Sawer.
What Perera stated at page 22 on the authority of Armour was asfollows :—
“ If the deceased proprietor left no issue, and had survived his parentsand has full brothers and sisters, then his widow wall have anabsolute * Lat Hi mi ’ right to such lands as belonged to the deceasedby right of acquest (that is to say, lands which were not derivedto him by inheritance but which he had acquired by purchase,or which he had obtained from a stranger by rendering assistance)to the exclusion of the deceased’s more distant relations, (paternalaunt’s children for instance).”
The case of Supan Chetty v. Kumarihamy is not quite relevant to thepoint at issue in this case, as the question at issue there was whether thewidow was personally liable for her husband’s debts irrespective of whatshe had inherited from her husband.
Sawers’ Digest of the Kandyan Law, Page 18 under Memoranda of theLaws which regulate the succession to Movable property, para I states,“ When a man dies intestate, his widow and children are his immediateheirs, the widow having the custody and administration of the property,so long as she lives in her husband’s house . . . ”. The administration ofproperty referred to there is the administration of movable property.
Sav ers’ Digest, Chapter 1, Succession to Immovables, at para. (1) states,“ When a man dies intestate, his widow and children are his immediateheirs, but the widow, although she has the chief control and managementof the landed estate of her deceased husband, has only a life interest in thesame • * . •
It is clear that the widow has the chief control and management of theimmovable property of her deceased husband when he has left childrenbut not otherwise. I may mention that the widow’s life interest extendsonly to the acquired lands of the deceased husband and not to hisinherited lands.
Under Chapter 11, Succession to Movables, Sawers’ Digest at page 21,para. 13, states,
“ The debts of the deceased must be paid by those who inherit his orher property, according to the value of their respective shares . . . ”.
Chapter 11 para. 14 states, “It is the pious duty incumbent on sonsto pay their parents’ debts, although they may not have inherited anyproperty from them .”
142
Li. B. BE SILVA, J.—Babi v. Dantuwa
Chapter 11, para 16 states, “ A diga wife is liable to pay the debts of thedeceased husband, whether she may have inherited property from himor not . . .
It is against the recognized principles of justice that an heir should beliable for the debts of the deceased in excess of his inheritance. As thereare conflicting statements by Sawers on such liability, in the passagescited above, Middleton J. held in Supen Chetty v. Kumarihamy, that therewas no such personal liability of a widow under the Kandyan Law.
In Bandara Menika v. Imbuldeniya, 1 it was held that under theKandyan Law, a widow with minor children, has a right to mortgagethe estate of her deceased husband for the payment of his debts.
In that case too, the Court considered the right of a Kandyan widowwith minor children to mortgage the immovable property of the deceasedhusband, to pay his debts. Gunasekara, J. held that if she had a right toalienate immovable property for that purpose, there appears to be noreason in principle for holding that she could not exercise the lesser rightof mortgaging the property.
Sawer’s Digest of Kandyan Law, Chapter IX, paragraph 3 states, “ Thewidow has no right to dispose of her husband’s lands contrary to what thelaw directs, although she has a usufruct of them, unless she was speciallyauthorized by her husband that he might thereby secure to his relict thedutiful obedience of his children.”
Learned Counsel for the Appellant was not able to cite to us any casewhere a widow, without children, was held to have the right to sell theimmovable property of her deceased husband, to pay his debts.
There was some reason why a widow with minor children, should havebeen given that right. She was the head of the family and she owed a dutyto protect the interests of her minor children by settling the deceased’sdebts even by the sale of his immovable property. She could naturally beexpected to safe-guard the interests of her own children, in the absence ofany form of administration under the Kandyan Law. She could oweno such duty to the collateral heirs of her husband when the deceased hasleft no issue.
Considering the general principles of the Kandyan Law and the reportedcases, I hold that a Kandyan widow without minor children, has no rightto sell her deceased husband’s immovable property so as to affect therights of other heirs of the deceased.
The appeal is dismissed without costs.
Wberasoobiya, J.—I agree.
Appeal dismissed.' 1
1 (1949) 60 N. L. R 478.