001-NLR-NLR-V-17-APPUHAMY-v.-TIKIRI-MENIKA.pdf
THE
NEW LAW EEPOBTS OF CETLON.VOLUME XVII.
Present: Wood Benton A.C.J. and De Sampayo A.J.APPUHAMY v. TIKIBI MENIKA.
353—D. G. Kurunegala, 4,733.
Kandyan law—“ Bina ” marriage—Right of father to succeed to propertyinherited toy his children from their mother.
The father is not the heir of the property of his children bom ina bina marriage which they have acquired through their mother ;the maternal unoleg or next of kin on the mother's side are theheirs to such children (in the absence of the mother).
Semble,—The father's right to the life interest over such propertydepends on the fact of his having kept the child under his care andcustody.
facts are set out in the judgment.
W. Jayewardene, for the plaintiff, appellant.—On the death ofthe child (Punchi Menika) the father, Bandirala,- was the heir to thechild. Armour says that this father is the heir. Appuhamy v.Dingiri Menika 1 is an authority to the contrary. But the correctnessof this judgment was doubted by Lawrie J. in C. B. Kurunegala,4,944.2 In view of the conflict of authorities it is well that thepoint should he reconsidered. In any casev the father is entitledto life interest. Counsel also cited Moddet 168, Sower 9, Marshall340, Niti Niganduwa 111, Armour 48, Austin 155.
St. V. Jayewardene (with him A. B. H. Canekeratne), for (hedefendant, respondent.—[Their Lordships wished to hear counselonly on the right of the father to a life interest.] That point wasnot raised in the lower Court, and it is not open to4 the appellant toraise it in appeal.
W. Jayewardene, in reply.
1 {1889) 9 S. C. C. 34.* S. C. Min., May 30,1898.
IJ. X. B 18828-1,000 (7/62)
1918.
( 2 )
1918. November 27, 1913. Wood Renton A.G.J.—
This is an action for declaration of title. The plaintiff, theMenika appellant, claims -an undivided l-4th share of land No. 1 and an'undivided 3-10ths share of lands Nos. 2, 3, 4, and 5 described inthe plaint. Land No. 1 was admittedly property acquired by awoman, Ukku Menika, before her marriage. Lands Nos. 2, 3, 4,and 5, according to the plaintiff's contention, she inherited fromher father, Mudianse. Ukku Menika was married to Bandirala,the plaintiff's vendor, and died leaving one child, Punchi Menika,who died without issue. The plaintiff alleges that Ukku Monika'smarriage was in bina, and that Bandirala is the heir of PunchiMenika, to the exclusion of her maternal relatives, the defendants.The defendants, on the other hand, allege that Ukku Menika wasmarried out in diga; that she thereby forfeited her rights to the 2nd,3rd, 4th, and 5th lands; and that, as regards the 1st land, whichdevolved on her child, Punchi Menika, Bandirala was not theheir-at-law of the latter, but that it passed to the defendants asher maternal relatives. The learned District Judge held on theevidence, and his finding on this point was not challenged at theargument of the appeal, that Ukku Menika was married in bina,and, on the law, that Bandirala, as a bina husband, was not theheir of his daughter Punchi Menika. He therefore dismissed theplaintiff's action with costs. The plaintiff appeals. The decisionof the learned District Judge on the point of law, with which alonewe are here concerned, is in accordance with that of the Full Courtin Appuhamy v. Dingiri Menika1 and with.the obiter dictum of'Wendt J. in Dingiri- Menika v. Appuhamy,2 that it ** had often beendecided " that the father was not the heir of his child born in a binamarriage in respect of property inherited from the mother. Thoseauthorities are binding upon us, and they are founded upon theprinciple enunciated by Sir John Phear C.J. in Banghami v. Pin-hami,3 that under Kandyan law ancestral property, when thedirect line Of descent is broken, goes over to the next nearest lineissuing from the commonancestralrooftree. Mr.E. W. Jaye-
wardene, the appellant's counsel, pressedus withthe following
passage from Pereira's Cases (page 77): —
If the child was the issue of a bina marriage, and if, after the deathof 'that child’s mother, the father had deserted the child and left itentirely to the care of the mother’s family, in that case the father willhave no right to the reversion of any property that belonged to thechild ; that property will, therefore, at the child's death, devolve tohis or her nearest of kin on the mother’s side, in preference to thefather, and in preference tothe saidchild’spaternalhalf-brother and
half-sister, it being premisedthat thefatherwas notalso an etoa$$a
consin of the said child’s mother. 1
1 (7559) 9 8. C. C. 34.* (1907) iO N. L. R. 114.
»(1876) 1 8. C. C. 5.
( 8 )
But if the child, albeit issue of a bina connection, had remained underthe father's care after the mother's demise, in that case the father willbe entitled to a reversion of the child's estate in preference to thechild's distant maternal relations
I am by no means satisfied, however, that this passage has anyapplication to a case like the present. It seems to me to contemplate Menikaa case in which after the death of a inother married in 6ma thefather had done something for the child outside and beyond thescope of his ordinary parental duty as a bina husband. Mr. E. W.Jayewardene’s last contention was that, in any case, under theKandyan law, the father was entitled to a life interest in the child’s,property. That point was not taken at the trial. It is notmentioned in the petition of appeal, and I entirely agree with whatmy brother De Sampayo has said in regard to it.
IMS.
Wood
Renton
A.J.C.
De Sampayo A.J.—
This case raises a question of Kandyan law under the followingcircumstances. One Mudianse, who was admittedly the owner ofcertain lands, died leaving his wife (the first defendant), his son(the second defendant), his daughter (the third defendant), andanother daughter, Ukku Menika, now deceased. Ukku Menika wasmarried to one Bandirala in bina, and died leaving one child, PunchiMenika, who succeeded by inheritance to her mother’s share ofthe lands. Punchi Menika herself died, and her father, Bandirala,nlftiming to be his daughter Punchi Menika’s heir, sold to theplaintiff the said share of land. The question thus is whether thesaid share went to Punchi Menika’s father, Bandirala, or to hermaternal relatives, the defendants. The Kandyan law appears todraw a distinction, in regard to succession by a father to his children'sproperty, between children bora of a' bina marriage and those bornof a <Uga marriage, and between property acquired through themother and property otherwise acquired. The authority of Sawer(page 14) is distinct, and is to the effect that “ the father is not theheir of the property of his children bom in a bina marriage whichthey have acquired through their mother: the maternal uncles ornext of kin on the mother’s side are the heirs to such children.This is in harmony with the general principle, affirmed in Ranghamiv. Pinhami,l that in default of descendants, ancestral, property goesover to the nearest line issuing from the common ancestral rooftree.On the other hand, Armour (page 76) says that “ the father isentitled to inherit the land and other property, which his deceasedinfant had inherited from the mother, in preference to the relationsof the person from whom that property had been derived to thesaid child’s mother. ” This passage in Armour is, however, recon-cilable with Sawer, if we assume that Armour was referring to
V. ,
,1 (1S76) 1 S.G. C. 3.
( 4 )
1M8. children bom of a diga marriage. This is the explanation suggestedDe Sahpayo ^ Mr. Modder in his book on Kandyan Law 167, and I amA.J.inclined tothink thatit isthe right explanation. The current of
Appuhamydecisions isin favour of therule laid down by Sawer. The earliest
e. Tikvricase is theunreportedcose of 1866 (D. C. Kurunegala, No. 14,628),
Monikaa0fwhich fggivenin Modder *s Kandyan Law 165. In
Appuhamy v. Dingiri Menika1 all the authorities were examined bythe Full Court, and it was unanimously held' that the lands of abina daughter inherited from her mother devolved on her maternalrelatives in preference to the father. It is true that Lawrie J. inC. R. Kurunegala, No. 4,844,9 doubted the correctness of thatdecision, but he considered himself bound by it and followed it.In the later case of Dingiri Menika v. Appuhamy 3 Wendt J., whowas himself no mean authority on such a question, reviewed theprincipal texts in the Kandyan law and affirmed the rights of thematernal relatives as against the father in the case of a bina child.In this state of matters it is not right, even if it were possible, forus to accede to the suggestion of counsel for the plaintiff that weshould reconsider the Full Court decision in Appuhamy v. DingiriMenika, supra, which has been generally accepted as a correctexposition of the law and is binding upon us.
Counsel for the plaintiff next invited us to hold that Bandiralawas entitled at least to a life interest in the property, and on thispoint he relied on Niti Niganduwa 114 and Sawer 8 and 9and Armour 76 and 77. These passages in themselves areno.t very clear, and do not seem to be reconcilable with theprinciples elsewhere enunciated. It appears, however, from theNiti Niganduwa and Armour that the father's right, if any, dependson the fact of his having kept the child under his care and custody.In this case the claim of a life interest was not made in the Courtbelow. The necessary facts were not brought out by means of anissue stated between the parties for that purpose, nor is there anyfinding by the Judge on that point. Moreover, Wendt J. in DingiriMenika v, Appuhamy, supra, considered that the father’s life interestarises only in the case of a child bom of a diga marriage, and Iventure to think that that is so. It seems to me also that anothercondition is that the child should have been an infant or minor athis or her death. In this case whether Bandirala's daughter PunchiMenika was a minor or not does not appear. In these circumstances,I do not think that we should disturb the judgment of the DistrictJudge on the claim actually put before him by the plaintiff.
In my opinion the appeal on the whole fails, and should bedismissed with costs.
1 (IMP) 9 S.C. C. 34.
Appeal dismissed.
« S. C. Min., May 30, 1898.
3 (1907) 10 N. L. B. 114.