DIAS J.— Ukku v. Horathala
1948Present: Jayetileke and Dias JJ.UKKU, Appellant, and HORATHALA, Respondent3. C. 244—D. C. Matale, L 65
Kandyan Law—Acquired property—Right of succession—Illegitimate halfbrothers and sisters-—Ordinance No. 39 of 1938, Sections 16 and 17.
The words “ brother ” and “ sister ” in section 16 and 17 of theKandyan Law Ordinance, No. 39 of 1938, connote a legitimate brother orsister of the full or the half blood. Neither under these sections nor underthe customary law of the Kandyans can an illegitimate child inheritfrom a collateral source.
-A.PPEAL from a judgment of the District Judge, Matale.
G. R. Gunaratne, for plaintiffs appellants.
Aluwihare, with T. B. Dissanayake, for defendant respondent.December 17, 1948. Dias J.—
The parties to this action are Kandyans and are governed by the
1 (1868) L. R. 3 H. L. 330.
• (1918) 21 N. L. R. p. 75.
(1924) 25 N. L. R. 481.(1927) 29 N. L. R. 330.
DIAS J.-—Ukku v. Horathala
Wewckumbure Daranda Kumbura was the acquired property of a mannamed Kaluduraya under deed P 2 of 1864. He died leaving sevenchildren including two daughters, Subadie and Kumudu. Subadie, whois alleged to have died previous to September 27, 1909 (the relevancy ofthis date will become manifest presently), was married in diga to Banduwa(now deceased) and they had a daughter Somadari. Kumudu, thedaughter of Kaluduraya, was married in binna, and she died leaving thedefendant and six other children or the issue of deceased children. Theyare not parties to this action.
It is admitted that after the death of her lawfully married husbandBanduwa, Subadi (mother of Somadari) formed an irregular union witha man named Mohotha, and bore to him the first to the third plaintiffsand Kiriduraya who is dead, who is represented in this action by hiswidow the eighth plaintiff and his children, the fourth to the seventh andninth plaintiffs. These parties being Kandyans and the union betweenSubadi and Mohotha not having been registered under the KandyanMarriage Registration Ordinance, it follows that the plaintiffs are theillegitimate children of Subadi both under the customary Kandyan Lawas well as under section 14 of the Kandyan Declaration and AmendmentOrdinance, No. 39 of 1938 1.
Kaluduraya, the maternal grandfather of Somadari, by deed P 1dated September 27, 1909 (i.e., after the death of his daughter S.ubadias stated earlier), donated the field to his granddaughter Somadari, whodied intestate after Ordinance No. 39 of 1938 became law, leavingsurviving her, her maternal uncles and aunts (if any), her first cousinsincluding the defendant, his brothers and sisters and the issue of hisdeceased brothers and sisters. There also probably exist the descendantsof the other brothers and sisters of Subadi and Kumudu. There are alsothe illegitimate issue of Somadari’s mother Subadi, namely, the plaintiffs.Neither parent of Somadari survived her. The main question is whetherthese “ illegitimate half brothers and sisters ” and their descendants arethe sole intestate heirs of Somadari ?
As Somadari died after the commencement of Ordinance No. 39 of 1938,her property would devolve under the Ordinance provided the statutemakes provision for her ease.
The questions for decision are :
(а)Is the field in question the “ acquired property ” of Somadari ?
(б)On the death intestate of Somadari leaving no parents surviving,
whether her intestate heirs are :—
The illegitimate issue of her deceased mother Subadi (the
plaintiffs) ? or
Her maternal legitimate collateral relatives including the
It was assumed at the argument that as Somadari had died after thecommencement of Ordinance No. 39 of 1938, therefore that Ordinanceapplied to her. That is correct, but the Ordinance does not purport to be1 Legislative Enactments (1941) Supplement pp. 26—35.
DIAS J.— Ukkuv, Horathala
an exhaustive Code of the Kandyan Law of inheritance. So much of thepreamble to the Statute which the Editor of the Legislative Enactmentshas published shows that the Ordinance was intended merely “ to declareand amend the Kandyan Law in certain respects
At the argument before us it was assumed that sections 16 and 17 ofOrdinance No. 39 of 1C38 applied to this case. Even if it does, I find itimpossible to hold that uterine illegitimate brothers and sisters of Soma-dari or their progeny can be designated “ brother or sister or brothers and-sisters or the descendant or descendants of any brother or sister ” ofSomadari within the meaning of section 16 (b), or tfiat they are “ of thehalf-blood ” in relation to Somadari within the meaning of section 17 (6).There is no definition -in the O.dinanee as to what is meant by “ abrother ”, “-a sister ” or “ brothers and sisters of the half-bloodThese words all connote “ legitimate.” brothers and sisters of the full orthe half-blood. Stroud in his Judicial Dictionary under the word“ Relations ” says : “ The accurate meaning of ‘ Relations 5 or‘Relatives5 is Legitimate Relatives—Scale-Hayne v. Jodrell1—but thisword like all other words involving prima facie the idea of legitimacy, e.g.,Child, Issue, Wife, Husband, Brother, Nephew may include illegitimaterelatives if such be designated ”. This is the principle underlying the localdecision of Kiriya v. Ukku 2 where in a Kandyan deed of gift the words“ Children ”, “ Issue ” or “ Descendants ” were held to mean legitimateand not illegitimate children, issue or descendants, even although underthe customary law of the Kandyans illegitimate children inherit theacquired property of their deceased parent. Under the word “ Brother 55Stroud says : “ A gift to ‘ Brothers 5, ‘ Sisters * include the half blood ”,and he adds : “A gift to ‘ Brothers and Sisters 5, the testator knowinghimself to be illegitimate, imports his putative brothers and sisters(re Cameron 91 Law Times 176)”. This, of course, is understandable.As between illegitimate issue of the same mother, they are all brothersand sisters, for a mother makes no bastard. Counsel for the appellanthas been unable to cite any authority to justify me in holding (assumingthat Ordinance No. 39 of 1938 governs, this case) that these plaintiffscan be designated the half-brothers and sisters of the deceased Somadari.
The case of Setuwa v. Sirimalie 3 has no application to the question'now under consideration. In that case the deceased Nanduwa died in1943 (i.e., after Ordinance No. 39 of 1938 had become law) leavingillegitimate children, and the question whether they inherited, anythingfrom their father depended on whether Nanduwa’s property v. as“paraveni” or “acquired” property. .In .the former event theillegitimate children would not inherit. In the latter event they would.Section 10 of the Ordinance gave a statutory definition of what is meantby ' ‘paraveni55 and “ acquired property ”. Wij eyewardene J. pointedout that the property would be “ paraveni 55 unless it came within theproviso to section 10 (1), which enacted that “ if the deceased shall nothave left him surviving any ‘ child or descendant ’, property which hadbeen the acquired property of the person from whom it passed to the
1 (1891) A. G. 304.,2 (1914) 17 JST. L. R. 361.
1 (1947) 48 N. L. R. 391.
1*-J. N. A S7S77 (2/49)
X>IAS J-— Ukku v. Horathala
deceased, shall be deemed acquired property of the deceased Thequestion to be decided, therefore, was whether the word “ child ” in theproviso included “illegitimate children ”? The draftsman of the provisohaving knowledge of the customary law of the Kandyans by whichillegitimate children inherited the “ acquired property ” of their deceasedparents along with their legitimate issue, was careful to use the word“ child I would, therefore, respectfully agree with the decision inSetuwav. Sirimalie (supra). It has no application to the problem whichconfronts me—see also Mohideen v. Punchibanda x.
Incidentally, the case of Setuwa v. Sirimalie (supra) shows that in thecase before us Somadari having died without issue, legitimate or illegiti-mate, the property which came to her on deed P 1 from her maternalgrandfather Kaluduraya, who himself acquired it on deed P 2 of 1864,was her “ acquired property ” both under the Ordinance as well as underthe customary law.
In construing a legislative enactment one is entitled to inquire into itshistory. In Kama v. Banda2 the Divisional Court in construing theKandyan Marriage Ordinance 1870 examined various documents includingSessional Papers, the Report of the Select Committee of the Legislatureon the Ordinance, the Preamble of the Ordinance, &c. As is well known,Ordinance No. 39 of 1938 was enacted in consequence of the recommenda-tions made by the Kandyan Law Commission of 1935 3. A study of thisReport shows that the original intention of the Legislature had been tocodify the whole of the Kandyan Law (see paragraphs 2—17). This wasabandoned. The endeavour of the Kandyan Law Commission was notto codify the whole Kandyan Law, but “ to remove uncertainties in thelaw as at present understood, to re-establish those portions of the old lawwhich, as a result of judicial interpretation, have developed along lines atvariance with the spirit of ancient customs, and to recommend alterationsor additions to the old law where it may appear to be no longer in accordwith modem conditions ” (see paragraph 23). One of the matters theCommission considered was “ The law of intestate succession ” (seeparagraphs 24, 135). The rights of “ Illegitimate Children ” were ullydealt with in detail in paragraphs 197-210, 281, 288, 292. It is clearfrom the recommendations of the Commission that, far from enlargingthe rights of illegitimate children to inherit from their deceased parents,they desired these rights to be restricted—see paragraph 208 where theCommissioners said : “ We have given the subject very careful eon-idera-tion, and are of opinion that illegitimate children should no be placedon the same footing as legitimate children, even as regards inheritanceto the acquired estate of their father (i.e., by descent). We would, accord-ingly, recommend that illegitimate children be declared to have no rights. whatsoever to the paraveni property of their father, and that legitimatechildren or their issue should be declared to exclude absolutely illegitimatechildren, illegitimate children being entitled to the acquired estate of theirfather only in the absence of legitimate children or their issue, and alsosubject to the life-interest of the widow, if any ”. Again in paragraph 1
1 (1947) 48 N. L. R. 3184 (1920) 21 N. L. R. 294.
3 Sessional Paper 2CXIV—1935.
DIAS J.— Ukku v. Horathala
210 they say:“…. But we do feel that illegitimate Kandyanchildren should not be regarded as of the same status as legitimateKandyan children for the purpose of inheriting the acquired property oftheir father, or, indeed, for any other purpose whatsoever ”. Theserecommendations are now reproduced in section 15 of the Ordinance.Nowhere was it suggested that illegitimate children should be entitledto inherit acquired property from a collateral source, e.g., from a legitimatechild of the common mother. There was no need to provide for the rightof illegitimate children to inherit from their mother—because a mothermakes no bastard. That is why section 15 of the Ordinance opens withthe words “ When a man shall die intestate .”.
The Bar has not been able to cite a single authority either from theLaw Reports or from the institutional writers to show that the customarylaw of the Kandyans recognized the right of an illegitimate child toinherit from a collateral source. Such a principle would appear to runcounter to the whole scheme of the law relating to the customary KandyanLaw of Intestate Succession. I have not been able to find a singleauthority where on the death of a legitimate daughter unmarried andissueless leaving no parents, that the illegitimate children of her father ormother can inherit from her. The nearest case one can find is that ofAppuhamy v. Lapaya 1 but that was a case of inheritance by descent,and not one of inheritance from a collateral source, which is the case here.Armour (Perera's Edition), page 8, section 7, deals with the case of a manwho had an illegitimate son. The father died first and then the grand-father. Armour says : “ Therefore, in case that man (the father) diedbefore his parents, his children by that woman will have no right to anyshare of his parent’s estate. The said children will be entitled to inheritonly such property as their father himself acquired by purchase or othermeans of acquest ”. If then an illegitimate child could not inherit theproperty of his paternal grandfather in the direct line of descent, it mustfollow surely that such child cannot inherit from a collateral source ?I am, therefore, of opinion that neither under sections 16 and 17' ofOrdinance No. 39 of 1938 nor under the customary law of the Kandyanscan the plaintiffs succeed.'
The intestate heirs _ of Somadiri are her maternal legitimate relativesincluding the defendant. The answer of the defendant shows that hiscase was that his mother Kumiidu had “ adopted ” Somadiri as herdaughter, and he claimed to be the sole heir of his “ adopted sister ”.This claim however was not raised in the issues.
It is unnecessary to discuss who should succeed Somadari as theplaintiff’s action cannot in any event succeed. No question of prescrip-tion has been raised or decided. I
I set aside the decree appealed against and dismiss the plaintiff’saction with costs both here and belo„w.
Ja ye til ek e J.—I agree.
(1905) 8 N. L. R. 328.
UKKU, Appellant, and HORATHALA, Respondent