012-NLR-NLR-V-52-ASIRVATHAM-Appellant-and-GUNARATNE-Respondent.pdf
1050Present: Jayetlleke C.J. and Gunasekaea J.ASIRVATHAM, Appellant, and GUNARATNE, Respondent
S. G. 171—D. C. Ratnapura, 7,137
Kandyan Lato—Succession—Illegitimate child—Right to inherit maternal grandfather'sproperty.
Under the Kandyan law a child who was not born in lawful wedlock is entitledto succeed to the maternal grandfather's property if the child was not theresult of an “ unauthorised intercourse
A
PPEAL from a judgment of the District Court, Ratnapura.
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S. J. V. Chelvanay again, K.C., with P. Navaratnarajah and V.Arulambalam, for plaintiff, appellant.
W. Jayewardene, with G. T. Samarawichreme and 23. D. Atukorale,for defendant, respondent.
Our. adv. vult.
August 29, 1950. Jayetileke C.J.—
The plaintiff instituted this action for a declaration of title to a dividedportion of a land called Tippolahena. One Mahabattanarallege Mndianse,a Kandyan, became entitled to the entire land under deed No. 12,619dated October 9, 1906 (PI). He had children by two beds, to wit,Lokumenika and Heenmenika by the first bed and Kiri Banda, DingiriBanda, Jotiranga Menika and Hamy Mahatmava by the second bed.
Under the Kandyan law where a person leaves heirs by two bedshis property devolves on them per stirpes. Lokumenika predeceased,her father. The plaintiff alleged that Lokumenika left no issue and thatHeenmenika beeame entitled to the half share of Tippolahena thatdevolved on the heirs of the first bed. The learned District Judgeheld that Lokumenika lived with a man called Seenikkavidaneralalage-Podisingho and had a daughter called Martinehamy alias Podinona and.that Heenmenika was married in deega. There is sufficient evidenceto support these findings and we see no reason to disturb them. Themain question for our decision is whether Martinahamy, who was notbom in lawful wedlock, inasmuch as her parents were not marriedaccording to the Kandyan law, is an heir of Mudianse. If she is anheir she will be entitled to the moiety that devolved on the heirs by thefirst bed to the exclusion of Heenmenika who was married in deega.At the argument before us it was agreed that if our decision on the mainquestion is against the appellant the appeal must fail*
Relying on the following passage in Sawer1 Counsel for the appellantcontended that under the Kandyan law an illegitimate child is notentitled to succeed to the maternal grandfather’s property:—
A daughter bearing children in the house of her parents without
having an acknowledged husband such husband would have a doubtful
1 Sawer : pages 3 and 4 cited in- Marshall 331.
or weak claim to any share of their maternal grandfather’s propertyand must depend chiefly upon the goodwill of their uncle or unclesfor support and a provision out of the grandfather’s estate.
A daughter having unauthorised intercourse with a paramour inher father’s house, bearing children such children have no right ofinheritance in their maternal grandfather’s or grandmother’s propertybut the father being known and the children acknowledged by himthey would have a claim of inheritance in his paraveni propertyprovided the paramour were of equal rank and degree with the mother.The meaning of the expressions “ unacknowledged husband ” and“ unauthorised intercourse ” in the passages quoted above was consideredby de Sampayo J. in the case of Raja v. Elisa 1 and in the course of hisjudgment the learned Judge said: —
“It is argued on behalf of the defendant that the expressions‘ unacknowledged husband ’ and ' unauthorised intercourse ’ meanthat unless the parents are legally married the children do not inheritfrom their grandparents. I think that this contention is not well•founded. If what is meant is legal marriage, nothing is easier than tosay so and there is no necessity for such laboured language as theabove. To my mind the reference is to cases where the man andwoman have cohabited without the approval of the woman’s parentsand brought disgrace upon the family. In this particular case itappears that Rankiri, so far from disapproving of her daughter Punehi-nona taking to herself a Tamil husband, recognised the alliance or,as the Commissioner puts it, she and her family eagerly ‘ acclaimed theso called husband •who is a Tamil ’. Moreover, on the death of Punch! -nona shortly after plaintiff’s birth, Rankiri took the child and broughthim up till her death, and thereafter another married daughter of hersdid the same by the boy until he reached man’s estate. In these cir-cumstances the Commissioner was, in my opinion, right in holdingthat the plaintiff was not the result of am ‘ unauthorised intercourse ’and did not incur the disability arising from such an origin. In thisconnection it may be remembered that among the Kandyans emphasiswas laid not so much on strict forms of marriage as on observance ofsocial rules as to rank and caste. Accordingly we find legitimacyand illegitimacy defined in the Kitinighanduwa, plB as follows: —‘ Ifthe father and mother are of equal caste and rank and have beenmarried according to custom or, if not according to custom, if theybave been married agreeably to the wish of their kinsfolk, theirchildren are legitimate children and are entitled to their right of inheri-tance in their father’s estate. But if a man marries a woman oflower caste than himself, or a woman within the prohibited degreesof relationship, or a woman of equal rank without the consent of theparents, the marriage is contrary to custom and the ties of relationship,the children born of it are illegitimate and their title to the paternalright of inheritance is very unstable’. British legislation has nodoubt provided a uniform and compulsory system of marriage for theKandyans, but the principles of inheritance to be found in the ancientKandyan law remains unaffected.
1 112 C. R. Gampola 613. S. O. Min.ii.tes of May 26, 1913.
“ The point involved in this case is not without judicial authority.
In Appuhamy v. Lapaya (1905 8 N.L.B. 328), it was decided that anillegitimate son of a predeceased son could inherit from the grandfatheralong with the surviving legitimate children. -If this be sc* in the caseof the male line, the right of succession would be much stronger inthe female line, where legitimacy is of less account. The same decisionis an authority against the argument of Counsel for the defendant thatthe existence of legitimate children excludes the illegitimate grandchild.Then it was sought to distinguish this case from Appuhamy v. Lapayaon the ground that the succession to the grandfather as distinguishedfrom the grandmother is referable to the obligation on the grand-father’s part to maintain his illegitimate grandchildren. I am notquite able to follow this reasoning but it is sufficient to say that thedecision referred to. is not based on any such views of the grandfather’sobligation ”..
I find myself in entire agreement with these observations-. Theevidence of Wijesinghe, which has been accepted by the learned DistrictJudge, shows that L.okumenika lived with Podisingho in her mulgederaand Mudianse recognised their alliance and treated Martinahamy as hisgrand-daughter. Mudianse was of the goigama caste and the g£ nameof Podisingho indicates that he, too, was of the same caste. On thesefacts it is not possible to say that Martinahamy was the result of an“unauthorised intercourse”. I would accordingly answer the questionin the affirmative and dismiss the appeal with costs.
Appeal dismissed.
Gcnasekaea J.—I agree.