019-NLR-NLR-V-57-WIMALAWATHIE-Appellant-and-PUNCHI-BANDA-Respondent’.pdf
1955Present : Basnayake, A.C.J., and Pulle, JWJLMALAWATHIE, Appellant, and PUNCH! BANDA,Respondent
S. G. 449—D. C. (Final) Kegalla, S,5ir
Kandyan. Laic—Diga marriage—Death of wife intestate—Husband's rights in respectof wife's acquired properly—Kandyan Law Declaration and AmendmentOrdinance, -Yo. 39 of 193S, ss. IS, IS.
The law us lnid down in Tikiri Da/ula v. Appuhamy (1914) 18 X. I.. R. 105Mint tho surviving husband of. a diga marriage has a life interest in theacquired property of his deceased wife has not been altered by section IS ofthe Kandyan Law Declaration and Amendment Ordinance. Tho husband’sright is unaffected by the fact that there are children by a former marriago oftho deceased spouse.
Appeal from a judgment of the District Court, Regalia.
JR. Gunaralnc, for the plaint iff-appcllant-.
IE. Jayeuardenc, Q.G., with P. liana-si nghc-, for the defendant-respondent.
June 24, 1955. Basnayake, A.C.-J.—
The onlj- question for determination it. this appeal is uhether thehusband of a diga married spouse who dies intestate leaving a childby a former marriage has a life interest over the property acquired by thedeceased sjjousc during coverture.
In the instant ease, one B. X. Ukkit Etana who had married in digadied intestate leaving the plaintiff-appellant, Kottapola VidanelageWimalawathie (hereinafter referred to as the appellant), a child by aformer marriago; tho defendant, her surviving husband; and fourchildren of her marriage with the defendant.
The appellant claims title to an undivided one-fifth share of a paddyfield acquired by her deceased mother during her second marriage, anddisputes her step-father’s right to a life interest over that share.
4lvii
J. X. B. 40S56-1.502 (11,55)
Learned counsel on behalf of the appellant argued that the effect ofsection IS J of the Kandyan Law Declaration and Amendment Ordinance,No. 39 of 193S (hereinafter referred to as the Ordinance), was to wipe outthe rights of the surviving husband of a woman married in diga to a lifeinterest over the property acquired by her during coverture. He sup-ported his argument by reference to section 15of that Ordinance whereinit is enacted that the succession of a child to the father's estate is subjectto the interests of the surviving spouse. Alternatively he argued thatthe diga husband’s life interest over his deceased, spouso’s propertyacquired during coverture docs not extend to the shares of a child orchildren J.y a former marriage of tho deceased spouse.
Although prior to the decision in Tikiri Banda v. Appuhanuj3 there wassome uncertainty as to a diga married husband’s rights over his deceasedwife’s property acquired during coverture, that case has put an end tothat uncertainty by laying down authoritatively the proposition that- thesurviving husband of a diga marriage has a life interest- in tho acquiredproperty of his deceased wife even though there are children of themarriage.
'Yc are unable to uphold learned counsel's submission that the lawas laid down in that case lias been altered by section IS of the Ordinance.The rule is that statutes arc to be construed in reference to tli i principles
1 Section 78 of the Kandyan- Late Declaration and Amendment Ordinance, Ko. 30of 103S :'
■’ 18.(1) tYhen a woman unmarried, or married in diga, or married in biiuia
on her mother’s property, shall die intestate after the commencement of this OrdinanceIcaciny children or the descendants of a child or children, the estate of the deceasedshall devolve in equal shares upon all such children, (the descendant or descendantsof any deceased child briny entitled to his or their parent’s share by representation)whether male or female, legitimate or illegitimate, married or unmarried and, if married,whether the marriage be in biimn or in diga :.
■ Provided that if the deceased was married in biiuia as aforesaid, an- illegitimatechild or children shall not be entitled to succeed to the paraveni property of the deceasctl :Provided further that the descendant of a deceased child shall be entitled to thatchild’s share by representation whether or not he or she has been kept apart from thedeceased intestate.
(2) IVhen a woman married in biimn on her father's property shall die intestateafter the commencement of this Ordinance leaving children or the descendants of achild or children, such child or children, and his or their descendant by representation.shall be entitled- to succeed inter sc in like -manner and to the like share as they wouldhave become entitled out of the estate of their father :
Provided that if the. deceased was -married in biiuia as aforesaid an illegitimatechild or children shall not be entitled to succeed to the paraveni property of thedeceased. ”
– Section 1-5 of the Kandyan Late Declaration and Amendment Ordinance, -Vo. 30of 1038 .-
“ 13. When a man shall die intestate after the commencement of this Ordinanceleaving an illegitimate child or illegitimate children —
(a) such child or children shall have no right of inheritance in respect of the paraveni■property of the deceased ;’
(Jr) spilt child or children shall, subject to the interests of the surviving spouse,if any, be entitled to succeed to the acquired properly of the deceased in•the event of there being no legitimate child or the descendant of a legitimate
child of the deceased;.-.
(c) any such child shall, subject to the interests of the surviving sjtouse. if any.
be entitled to succeed to the acquired properly of the deceased equallyicith a legitimate child or the legitimate children, as the case may l e—
if the deceased intestate had registered himself .as the father of that child
'when registering the birth of that child ; or
if the deceased intestate had in his lifetime been adjudged by any
competent court to be the father of that child. ”
1 {1911) IS -Y. L. It. 105.
of the common lav*'. It is not to be presumed that the Legislaturemtonded to make any innovation upon the common law, further than thecase absolutely required. The law rather infers that the statute did notintend to make any alteration, other than what is specified, and besideswhat has-been plainly expressed. Xt would be wrong to construe-theenactment by instituting a textual comparison of the sections 15 and ISand inferring from the fact that, while in the former the life interest of thesurviving spouse is expressly preserver! and in the latter it is not, theLegislature intended to take away the rights of a dign husband to his lifeinterest over the. wife’s property acquired during" coverture. Such aninterpretation would he contrary to the accepted rule of interpretationof sta tutes of tIris nature.
Learned counsel’s alternative argument is not supported by' anyauthority, nor is he able to give any sound reason why the diga husband’srights to the life interest over the deceased wife’s acquired propertyshould bo diminished L>y the fact that she has left offspring by a formermarriage.
We are of opinion that the rule as formulated in tiro case of TiktriBanda v. Appvhamy (supra) admits of no such exception.
The app.eal is dismissed with costs.
Fi’u.r., J.—I agree.