170-NLR-NLR-V-47-UKKU-BAND-et-al-Appellants-and-UKKU-BANDA-Respondent.pdf
Ukku Banda v. Ukku Banda.
481
194SPresent:Keuneman S.P.J. and Canekeratne J.
UKKU BANDA et al., Appellants, and UKKU BANDA,Respondent.
4r—D. G. (Inty.) Keg alia, 3,008.
Kandyan law—Inheritance—Death of married woman—Succession to acquired'property—Equal rights of brothers and sisters.
Where a Kandyan married woman died intestate and issuelesa leavinga brother and two sisters, and her father, mother and husband hadpredeceased her—
Held, that her acquired property passed to her brother and sistersequally.
A PPEAL from a judgment of the District Judge of Kegalla.
The question for decision was whether when a Kandyan marriedwoman dies intestate and Lsueless, her father, mother and sister havingpredeceased her, her acquired property passes to her brothers only or toher brothers and sisters equally.
H. V. Perera, K.G. (with him E. A. P. Wijeyeratne), for the third andfourth defendants, appellants.—The question for decision is whetherwhen a Kandyan woman dies intestate leaving a brother and sisters ofthe whole blood they all succeed equally to her acquired property orwhether the brother excludes the sisters. The latter view was takenby the trial Judge who purported to follow the case of Menikhamy v.Suddana *. But that case dealt only with succession to a male ; whereasin this case the question is one of succession to a female. This case wouldbe governed by Sower p. 17 ; although this passage occurs in the chapteron movables, it appears from a note made by Sawer himself lower downthat the same rules applied to landed property. In the case of Menilchamyv. Suddana {supra) Maartensz A.J., after quoting Sawer 13 and 17,expressly states (at p. 271) :“ The important difference is that sisters
inherit equally with brothers ”.
[Keuneman S.P.J.—Sawer 17 appears to deal with the case of anr-nmarried woman dying intestate. In this case the deceased wasmarried.]
Sawer was dealing with a specific case. But there is no differencein principle. The rule of succession is the same, subject to any claim adiga married widower may have. See Kandyan Law Commission Report(Sessional Paper XXTV. of 1935, p. 30, paras 238-243).
N. Nadarajah, K.C. (with him N. E. Weerasooria, K.G. and E. S.Amerasinghe), for the plaintiff, respondent.—In "this case the two sistersof the deceased intestate, under whom the appellants claim, had beengiven out in diga. They thereby forfeited their right, in favour of theirbrother, to succeed to any share of their sister’s estate.
1 {1926) 28 N. L. R. 266.
21—xLvn.
1J. 2f. A 66091-571 (ll/46>
482
KiSl 'NEMAN S.P.J.—Ukku Banda v. Ukku Banda.
Sawer p. 13 sets out generally the rule of succession both to a maleand a female. Sawer 17 relates to movables and deals with the estate ofan unmarried woman only. And in this passage there is a parentheticalclause which provides that “ if there be but one such brother the wholegoes to him, if there are several brothers they shall share equally ”.Counsel cited Mudalihami v. Bandirala 1; Dullewe v. Dullewe a; DingiriMenika v. Appuhamy s.
II. V. Per era, K.C., in reply.—Whether the sisters were married inbinna or in diga does not affect the question.
Cur. adv. milt.
October 31, 1946. Kjettnemai S.P.J.—
The only matter argued in this appeal relates to a question ofinheritance under the Kandyan law. K. M. Kirihamy, Vel Vidane,the original owner of the premises with which we are concerned, giftedthe premises by P 2 of 1872 to his wife Ukku Menika, his daughter PunchiMenika who was married in binna, and his son Appuhamy. Kirihamyhad two other daugnters, Dingiri Menika and Kan Menika, who weremarried in diga and dowried. Punchi Menika died issueless, and thematter for our decision is whether the one-third share which she obtainedunder deed P 2 passed to her brother Appuhamy alone or to Appuhamyand the two sisters Dingiri Menika and Ran Menika.
The District Judge decided that Appuhamy alone inherited this share,and the third and the fourth defendants appeal from that finding.
Mr. Perera depends upon the following passage from Sawer’s Digest ofKandyan Law—at page 17—under Chapter 2 relating to Succession toMovable Property :—
“ An unmarried daughter acquiring property and dying intestate,her property goes to her mother ; failing the mother, to the father ;and failing the father, to her brothers and sisters of the whole blood—if there be but one such brother the whole goes to him, if there areseveral brothers they shall share equally ; failing brothers and sistersof the whole blood, to the brothers and sisters uterine of the halfblood ….”
(N.B.—We are not concerned with the further steps in the devolutionof the property on failure of these heirs.)
“ The assessors unanimously state that the mother is the heiress to theacquired property, of all kinds, of her children dying unmarried andwithout issue, and that the same is entirely at her disposal. Butshould she die intestate, the property would go to the brothers andsisters of the whole blood equally, and failing them to brothers andsisters of the half blood uterine.
“ The assessors are of opinion that land as well as movableproperty, acquired by an unmarried woman dying intestate withoutissue, would follow the above rules of succession; but parvenyproperty would go to the nearest male relations only on that side ofthe house from which she inherited.”
1 {1898) 3 N. L. R. 209.» {1911) 5 Leader L. R. 39.
3 {1900) 6 N. L. R. 133.
E35UNEMAN S.P.J.—Ukku Banda v. Vkku Banda.
483
I may add that we are not concerned with the Not j in Sawer whiohreveals a difference of opinion among the Chiefs—for that differencerelates to the later steps in the devolution of property with which we arenot dealing ; that is, on the failure of the classes of heirs we havementioned.
In the present case there is no dispute that the property was theacquired property of PuncH Menika, and the problem is not complicatedby any claim on behalf of her father or her mother or her husband, andwe can act upon the footing that these persons had predeceased PuhchiMenika.
Mr. Nadarajah for the respondent had stressed the fac4 that the passagecited expressly applies to an unmarried woman. But I do not thinkthat a different order of succession applies in the case of the death of amarried woman intestate and issueless, whether the woman was marriedin binna or diga, subject to any claim which may be available to thehusband of the woman. No authority on the precise point wo have todetermine L s been cited to us, but I think the passage quoted can alsobe applied to the case of a married woman. The passage appears toapply to the case of succession to females.
Mr. Nadarajah also draws attention to the phrase “ if there be but onesuch brother the whole goes to him, if there are several brothers they shallshare equally ” and argues that this is an indication that the brother orbrothers are preferred to the sister or sisters. I do not think there issubstance in this argument. The previous words “ failing the fatherto the brothers and sisters of the whole blood ” are clear words indicatingthat both brothers and sisters of the whole blood are to succeed, and nodistinction is made between sisters married in binna and sisters marriedin diga.
The intention is made clearer by Sawer’s Note at the end of theparagraph—“ but Mullegama Disave …. are of opinion that
brothers and sifters of the w'hole blood share equally their deceasedsister's property …. The Chiefs now all concur in this opinionthat the sexes should share equally up to paternal uncles and aunts."Then the following words are added—“ Child dying intestate, acquiredproperty goes—
to the mother
to the father
brothers and sisters of the whole blood.”
It is also to be noticed that in the case of the mother acquiringproperty from the children and thereafter dying intestate, the acquiredproperty goes to “ the brothers and sisters of the whole blood equally.”I do not think that the word “ brother ” excludes sister in the phrasementioned by Mr. Nadarajah. The distinction drawn with regard to“ parveny property ” also strengthens that view.
Our attention has been drawn to the fact that a different rule ofsuccession applies io the case of a male dying intestate and issueless andleaving brothers and sisters. In that case it has been held that the
484
Podihamy v. Jayaratne.
brothers are to be preferred to the sisters ; see Dingiri Menika v. Appu-hamy >; Dullewe v. Dullewe 2; and Menikhamy v. Suddana 3. I may saythat the point was decided, not without hesitation, and a sharp distinctionwas drawn between succession to a brother and succession to a sister.In fact the passage on which Mr. Perera depends was cited in oppositionto the argument which was eventually maintained. I have examinedthe passage on which the decision in these cases was made (Sawer p. 13).Sawer first dealt with the rights of the father and the mother respectivelyin the property of “ a person dying childless ”. The rule enunciatedin this connection applied to both males and females. But the latterpart of the passage related to the rights of brothers and sisters " in theirdeceased brother’s acquired propeity ”, and in this it is quite clear thatSawer was dealing with the case of a Kandyan man dying intestate andissueless. From the language used by Sawer in this respect it wasinferred that where a man died leaving brothers and sisters, the brotherswere to be preferred to the sisters whether married in binna or in diga.I do not think this passage in Sawer has any application to the presentcase.
The argument on behalf of the third and fourth defendants mustprevail, and I accordingly set aside the judgment appealed from. Theshares to which the parties are entitled on this footing are not in dispute.I declare the parties entitled to the following shares :
Plaintiff—8/18 share
first and second defendants—1 /I8 share
third defendant—4/18 share
4th defendant—4/18 share
fifth defendant—1/18 share
The appellants are entitled to the costs of appeal against the plaintiff,but the plaintiff is entitled to half the costs of partition pro rala. Theorder of the District Judge as regards the plantations and the house willstand. Interlocutory decree for partition will be entered accordingly.Canekeratne J.—I agree.
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Judgment set aside.