121-NLR-NLR-V-50-PUNCHIRALA-Appellant-and-BANDA-Respondent.pdf
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DIAS J.—Punchirala v. Banda.
1948Present: Dias and Nagalingam JJ.
PUNCHIRALA, Appellant, and BANDA, RespondentS. G. 89—D. G. Badulla, 8,470
Kandyan Law—Paraveni property of deceased—Minor children—Payingdebts of deceased—Bight of widow to sell—Need for curatorshvp pro-ceedings.
Under Kandyan law a widow has the right to sell her deceasedhusband’s paraveni property during the minority of her children for thepayment of the debts of her deceased husband without the sanctionof Court. In such a case where the deceased left minor children thewidow need not obtain letters of curatorship.
A PPEAL from a judgment of the District Judge, Kandy.
H.. W. Jayewardene, for plaintiff appellant.
N. Kumarasingham, for defendant respondent.
Cur. adv. vult.
November 15, 1948. Dias J.—
The land in dispute belonged to one Keerala who was a person subjectto the Kandyan Law. It is asserted in the plaint and not traversed inthe answer, that the land in question belonged to Keerala “ by right ofdevolution from his father Badderala ”. Therefore, the land was theparaveni or ancestral property of Keerala.
Keerala died intestate leaving surviving him his widow, Heen Menika,and five children. Except for Banda the eldest child, the other fourwere presumably minors. It is common ground that Keerala’s estatewas not liable to administration. It is also admitted that no certificateof curatorahip was issued to Heen Menika in regard to the property ofher minor children, and that the sanction of the Court was not obtainedfor the sale of the minors’ undivided 4/5th share of the land in dispute.
By deed D1 dated May 8, 1932, the widow Heen Menika and hereldest son Banda conveyed the land in dispute to TJkkubanda whosetitle has now devolved on the defendants respondent. D1 recites thatHeen Menika executed the conveyance “in the exercise of her rights asa Kandyan widow, and for the purpose of paying the debts of herdeceased husband ”. Banda, the other vendor, recited that he is theeldest son of Keerala. Being a major he was entitled to deal with hisundivided 1 /5th share. There is no contest regarding this 1 /5th share.
By deed P4 dated October 7, 1945, the other four children of Keeralasold 4/5ths of the land in dispute to the plaintiff. The notary’s attestationto this deed shows that no consideration passed from the vendee to thevendors at the time of its execution.
The question for decision is whether a Kandyan widow has the rightto sell her deceased husband’s land during the minority of her childrenfor the payment of the debts of the deceased without the sanction of theCourt? The provisions of Ordinance No. 39 of 1938 have no applicationto this case.
DIAS J.—Punchirala v. Banda
489
On the death of a Kandyan intestate leaving a widow and childrenhis paraveni or ancestral property pass to the children, the widow beingentitled to maintenance and support out of the paraveni■—Hayley p. 352—353. In regard to acquired property the widow has a life interest whileshe remained unmarried—see UJcku Banda v. Heen Menika1. In thepresent case, therefore, on the death of Keerala, the title to the land indispute, being paraveni or ancestral property, would become vested inKeerala’s children, subject to the right of the widow, Heen Menika, toclaim maintenance and support therefrom.
There is, however, another principle of the Kandyan Law which conferson the widow the right to alienate or charge the property of her deceasedhusband in order to pay the debts of the deceased. In Appuhamy v.Kirihenaya 2 a Kandyan widow in order to pay the debts of her deceasedhusband sold certain lands for that purpose. The Supreme Courtupheld the sale on the grounds (a) that “ the widow held the position andowed to her children and her husband’s creditors the duty which now islaid on a legal representative”, (b) that the sale was completed by thewidow over thirty years ago, that is to say, before the Civil Procedure-Code was enacted, and (c) “ It appears that the widow acted unselfishly,for she sold acquired lands in which she had a greater personal interestthan in the paraveni lands which she did not sell This is a judgmentof Lawrie J. who was for many years the District Judge of Kandy andwhom Wood Renton J. in Mutbiah Ghetty v. Dingiriyaz described as “ anexpert Kandyan lawyer ”. Therefore, if a Kandyan widow under theKandyan Law did not have the right to sell the paraveni or ancestrallands for the payment of the debts of her deceased husband, there wasno point in drawing attention to the fact that she had not sold the para-veni lands in preference to the acquired property, or that she had, in fact,sold the acquired lands in which she as widow had a greater personalinterest. Although there are apparently conflicting passages in Modder,section 179 of his work on the Kandyan Law (2nd edition p. 310 et seq.)supports the view taken by Lawrie J. in Appuhamy v. Kirihenaya (supra):
“ A diga widow with children, is responsible to see that the debts of herdeceased husband are paid to the extent of the property left undisposed ofby him, and over which she has control ”. Modder cites Sawers as hisauthority for this proposition. Lawrie J. in Kirimenika v. Mutumenika 4said ** I regard Mr. Sawers as the best authority on Kandyan Law. Mr. Armour’s opinion has not the same weight as Mr. Sawers’,for he (Armour) was not a Judge ”. Sawers (18. s 2) says “ The debtsof the deceased must be paid by those who inherit his or her propertyaccording to the value of their respective shares—the money and paddyor grain debts should be paid by those who inherit the lands ; but if themovable property of the deceased be large in proportion to the landedproperty, the heirs of the movable property must pay a share of thedebt in proportion to the value of the movable property ”. It is to benoted that Sawers draws no distinction between paraveni or ancestralproperty of the deceased, and his acquired property. Hayley takes thesame view. He says at page 495 of his book on Sinhalese Law : “Ifthe value of the estate is below that amount (i.e., the administrable
1 (1928) 30 N. L. R. 181 (Div. Ot.)* (1907) 10 N. L. R. at p. 375.
* (1896) 2 N. L. R. 155.* (1899) 3 2st. L. R. 376.
490
Kiri Banda v. Weerappa Chettyar
limit), and it is not administered, the heirs are liable for the debts prorata. So the diga married "widow in possession of property has been heldliable for her husband’s debts—not personally—but as a sort of adminis-tratrix, and for this purpose may sell or mortgage the property Thiseminent authority makes no distinction between paraveni or ancestralproperty on the one hand, and the acquired property of the deceased on theother. Appuhamy v. Kirihenaya {supra) was considered by the DivisionalBench in Lebbe v. Christie1, but the correctness of that decision was notcalled in question.
The question was also raised whether the Kandyan widow could sellthe lands of the deceased when there are minor heirs without a certificateof curatorship. Under the Kandyan Daw the widow has the samerights as an administratrix. An administrator has the right to sell theproperty of the deceased to pay his debts without obtaining letters ofcuratorship when there are minor heirs. I do not think the fact that theestate of the deceased is below Us. 2,500 in value, casts a duty on theKandyan widow to obtain a certificate of curatorship. In my opinionthe sale of the 4/5ths share is valid.
I am, therefore, of opinion that the judgment appealed from is right-The appeal is dismissed with costs.
Nagaiutgam J.—I agree.
Appeal dismissed.