143-NLR-NLR-V-57-W.-HERMAN-SILVA-et-al-Appellants-and-W.-KAINERISHAMY-et-al-Respondents.pdf
1955Present: Gratiaen, J., and Swan, J.
XV. HERMANSILVA et al., Appellants, and XV. KAINERISHAMY el al.,.
Respondents
S. G. 220-230—D. C. Kalulara, 28,896
Inheritance—Child of “putative marriage ”—Right to inherit property of his father—.Matrimonial Jlights and Inheritance Ordinance (Cap. £7), ss. 23, 24, 33, 3G~
In view of th© express provisions of Sections 23, 24 and 33 of the MatrimonialRights and Inheritance Ordinance, Section 36 cannot enable an illegitimate*child to bo recognised as enjoying the status of a legitimate child in accordance-Tt-ith a doctrino of Roman-Dutch Law relating to “ putative marriages
_Al-PPEALS from a judgment of the District Court, Ivalutara.
S. G. E. Rodrigo, for the 2nd, -1th and 5th defendants-appellants inNo. 229 and the 3-6th defendants-respondents in No. 230.
D. S. Jayawickreme, Q.C., with C. de S. JVijeyeratne, for the2nd and 3rd plaintiffs-appeliants in No. 230 and the 1st, 2nd and 3rdplaintifFs-respondents in-No. 229.
November 25, 1955. Guatiaen, J.—
This is an action for partition and there is only one point of contestbetween the parties. The dispute relates to the question as to who arethe heirs of a man called Peduru who died in 1945. It is common groundthat Peduru married the 1st plaintiff on 19th February, 1920, and that atthe time of his death there were two lawful children of that marriage whoarc the 2nd and 3rd jdaintiffs. One month after he had contracted thismarriage, Peduru purported to marry the 2nd defendant and threechildren, namely, the 3rd, 4th and 5th defendants, were born to thatunion. The learned District Judge was attracted by an argument that,notwithstanding the clear and unequivocal provisions of section 33 of thoMatrimonial Rights and Inheritance Ordinance, the 3rd defendant,although illegitimate, should be recognised as enjoying the status of alegitimate child in accordance with a doctrine of Roman-Dutch Law re-lating to “ putative marriages ”. He rejected the argument that the samedoctrino could be invoked by the 4th and 5th defendants because ad-mittedly they were born after the 2nd defendant realised that Peduru wasnot her lawful husband. It is true that Section 3G made the rules of theRoman-Dutch Law as it prevailed in North Holland applicable toquestions of intestate succession which are not expressly provided forin the Ordinance. But it seems to me that sections 23, 24 and 33 of theOrdinance leave no room for any argument which in the case of illegiti-mate children would permit our Courts to apply the rules of any othersystem of Law.
For this reason appeal No. 230 must be allowed with costs and appeal:No. 229 must be dismissed with costs. We set aside the judgment under-appeal and send the case back with a direction that the learned District-Judge should enter a decree for partition on the basis that the 1st, 2ndand 3rd plaintiffs are the sole intestate heirs of the deceased, Peduru."The 3rd defendant will, however, be declared in the interlocutory decree-entitled to be compensated for the improvements specified in the originalinterlocutory decree. The plaintiffs are entitled to the costs of the contestin the court below which must be paid by the 2nd, 3rd, 4th and-5th defendants.
rSw-4}.*, J.—I agree.
Appeal No. 229 dismissed.Appeal No. 230 alloiced.