018-NLR-NLR-V-67-YASO-MENIKA-Appellant-and-BISO-MENIKA-and-another-Respondents.pdf
Present: T. S. Fernando J., and Abeyesundere, J,YASO MENIKA, Appellant, andBISO MENIKA and another, Respondents
-Sf. C. 5411961—D. G. Kurunegaki, 5299
Kandyan Law Declaration and Amendment Ordinance (Gap. 59)— Acquiredproperly—Intestate succession—Binna and diga marriages—Illegitimate children—Birth certificate—Sections 9 (1), 15 (c).
The Kandyan Law Declaration and Amendment Ordinance debars awoman married in diga after the commencement of that Ordinance fromsucceeding to any rights in the acquired property of her father who died afterthe commencement of that Ordinance.
Where a deceased person had merely caused to be registered a birth ofa child in the sense that he had informed the registrar of the birth, but hadnot had himself registered as the father of that child, the latter can maintainno claim as an illegitimate child of the deceased to succeed to any acquiredproperty of the deceased by virtue of section 15 (c) of the Kandyan LawDeclaration and Amendment Ordinance.
Appeal from a judgment of the District Court, Kurunegala.
Walter Wivyxlachandra, with M. T. Sivardeen, for the petitioner-appellant.
W. D. Gunasekera, for the 9th and 10th respondents.
May 9, 1963. T. S. Fernando, J.—
The question agitated on this appeal is whether the 9th and 10threspondents, R,an Menika and Pemawathie Menika, are entitled to ashare in the acquired property of the deceased John Banda who diedintestate on 30th July 1956, i.e. after the commencement of the KandyanLaw Declaration and Amendment Ordinance (now chapter 59).
By a statement of claim presented to the court on 14th March 1957,the 9th & 10th respondents, along with another, the 8th respondent,Biso Menika, claimed to be children of the deceased John Banda andof a woman called Dingiri Amma, and further claimed to be entitled toshares in the acquired property left by the deceased. At the inquirybefore the District Court it was established on Biso Menika’s own evidencethat she had married and moved away from her parent’s household andhad not come back to reside therein. Her claim to succeed to the deceasedintestate’s property therefore failed in any event. The learned DistrictJudge, while holding that the 8th respondent was not entitled to succeed
in her claim, held that the other two claimants were so entitled because,to ttse the learned Judge’s own words, although they were given outin diga they have come back to the house of Dingiri Amma and areentitled to a share of the acquired property. Against this finding thepetitioner, the widow of the deceased intestate, appeals to this Court.
There was no dispute that the parents of the 9th & 10th respondentswere not married. The question arising on this case appears to havebeen decided in the District Court without paying any regard to therelevant provisions of the Kandyan Law Declaration and AmendmentOrdinance. Sections 9 and 15 of this Ordinance are not merely relevant,but they also effectively bar Ran Menika and Pemawathie Menika fromsucceeding to any rights in the acquired property of John Banda. Inthe case of Ran Menike, the 9th respondent, there is no dispute thatshe herself was married in diga in 1950. Her claim to succeed is there-fore barred by section 9 (1) of the Ordinance referred to above whichenacts that “ a marriage contracted after the commencement of thisOrdinance in binna or in diga shall be and until dissolved shall continueto be, for the purposes of the law governing the succession to theestates of the deceased persons, a binna or a diga marriage, as the casemay he, and shall have full effect as such ; and no change after suchmarriage in the residence of either party to that marriage and no con-duct after any such marriage of either party to that marriage or of anyother person shall convert or be deemed to convert a binna marriageinto a diga marriage or a diga marriage into a binna marriage or causeor be deemed to cause a person married in diga to have the rights ofsuccession of a person married in binna, or a person married in binna tohave the rights of succession of a person married in diga.”
In the case of Pemawathie Menika, the 10th respondent, we have per-mitted the production before us by her of her birth certificate ; an ex-amination of that document reveals that John Banda has not registeredhimself as her father, but has merely given his name as the informantto the registrar of the birth, the cage relating to the father’s name beingleft blank. Section 15 (c) of the Ordinance aforesaid precludesPemawathie Menika in these circumstances from maintaining her claimto a share of the acquired property of John Banda.
The appeal has to be allowed and the order made by the DistrictCourt declaring the 9th and 10th respondents entitled to a share of theacquired property of the deceased intestate is accordingly set aside.The costs of the inquiry in the District Court will be borne by the parties,but the 9th and 10th respondents are ordered to pay to the petitioner-appellant the costs of the appeal to this Court.
Abeybsunps&e, J.—I agree.
Ajypeal allowed.