TIKIRO BANDA v. APPUHAMY et al

034-NLR-NLR-V-18-TIKIRO-BANDA-v.-APPUHAMY-et-al.pdf


( 105 )
[Ftjm. Brnch.]1914.
Present: Pereira J., Show J., and De Sampayo A J.
TIKIBI BANDA v. APPUHAMY et al.
419—D. C. Kandy, 08,747.
Kandyan law—Diga marriage—Widower has a life, interest in acquiredproperty of wife.
The widower of & diga marriage has a life interest in the acquiredproperty of his deceased wife.
K
ALU MENIKA, the diga married wife of the first defendant,was the owner of the lands described in the plaint, she having N
purchased them subsequent to her marriage with first defendant.
Kalu Menika died intestate leaving three children, Mutu Menika,
Punchi Menika, and the second defendant. Mutu Menika, on August26, 1913. sold her undivided one-third share of the said lands toplaintiff, and Punchi Menika sold her one-third share to the thirddefendant.
Plaintiff averred that the defendants denying plaintiff's title have,since his purchase, been in wrongful possession of his one-thirdshare. Plaintiff claimed a declaration of title, damages from thedate of his purchase, and that he be placed in quiet possession.
The defendants admitted plaintiff's title to one-third share, butdenied his right jbo possession. The first defendant (the digamarried widower of Kalu Menika) claimed to be entitled to thepossession of the lands in dispute, which are the acquired propertyof Kalu Menika.
The District Judge (F. R. Dias, Esq.) delivered the followingjudgment: —
This case raises, au interesting question of Kandyan law which is notquite free from doubt.When aKandyanwoman isconductedby a
man in diga* acquirespropertyduring coverture,and diesintestate
leaving a husband and children,does her acquired property vest
absolutely in her children, or is it subject to a life interest in herhusband ? vThe text books on Kandyan law do not contain an exactlyparallelcase, but in a C. E. Kegalla case itwasdecided bytheCom-missioner of Bequests infavour ofthe" latter viewonthe authority of
Sowers' Digest, p. 8,and the8upremeCourthasconfirmedthat
decision(vide Saduwa t>.Siri1).This decisionhasnotbeensetaside,
and isthexefore bindingon us.I may pointoutthatthe samepoint
arose in two cases ofthis Courtin 1909and 1918 (vide Nos.16,568
and 91,553) where tiiafc ruling was followed.
1 3 Bel. 18.
1914.
TtkirtBanda u.Appukamy
( 106 )
The passage in Sowers'Digest t p. 8, . that wasrelied uponsimply
says this, namely, “ The husband is heir to his wife's landed property,which will at his demise go to his heirs.** It will be noted that thisdoes not say what kind of property is meant, or whether the wife hasleft no children—circumstances which undoubtedly have an importantbearingonall questionsof the Kandyanlaw ofinheritance.If. we
look two paragraphslower down in this samebook, page9,wefind
it distinctly stated that where a wife dies intestate leaving a son who in-herits herproperty, •andthatsondies withoutissue, the father has
only alifeinterest in the property whichthe soninherited from his
mother.Inother words,the moment awomandies herproperty
passes to her issuC,andthe husband will geta life interestonlyin
the event of the death of that issue leaving no descendants. Paragraphs81 and 88 of Marshall'sJudgments also favourthis vitw.Seealsothe
case of Maids Appuo*Palingwrala,* where itwas heldthat adiga
husband is the heir to the acquired property of his deceased wife, bat thatis a case where the wife left no issue.
Hie lawonthisquestioniscertainlyverydoubtful, and worth
reconsidering by the Supreme Court.
In the -present case the owner of the two lands in claim was a womannamed Kalu Mehika, whoobtainedthem in 1897 underthedeed
Mo. 5,954,whileshewasthedigamarriedwifeof the first defendant.
She died in 1902 leaving her husband and three children, Mutu Monika,punchi Menika, and Punchi Panda (the second defendant). Hieplaintiff is a purchaserin1913 of Mutu Menika "s one-thirdshare,but
the first defendant is and has been in possession ever since his wife died.In view oftheauthorityfirstcited, I amcompelled to hold that the
plaintiff is not entitledtopossessionof his one-third shareuntilthe
death of the first defendant.
Let decree be entered declaring the plaintiff to be ‘ entitled to anundivided one-third shareofthe landsin claim, but subjectto alife
interest in the first defendant. The plaintiff must pay the defendant'scosts.
A. St. V. Jayewardene, for the plaintiff, appellant.—The ruling inSaduwa v. Siri* is opposed to the text books on the Kandyan law,and is not supported by any authority. The statement on page 8of Earners* Digest is repudiated by Sawers himself lower down inthe very same paragraph (see. Marshall** Judgments, p. 339,sec. 81).
The opinion of the Udar&ta chiefs is against the ruling in 3 Bal. 18.
The right of a widow to life interest over her deceased husband'sacquired property is clearly stated in .the text books. But theright of the widower to a life interest, if it .existed, would have beenequally clearly stated.
Counsel cited Satcer, p. 9, para. 2; p. Id, para. 3; Armour, pp. 29,30, 88. 34 and 36: Nitti Niganduwa, pp. 106, 107, 111, 112:17 N. L. R.I; Austin 66, 11; Pereira’s Armour, vol. II., p. 112; 2 C. L. B. 76.
4 2 8. c. c. m.4 3 Bal. 18.
' 107 )
.
S ** Jayetvarder&e, for defondants, respondents.—The case iscon*vd authority. Saduwa o. 8itl; 1 see also Madder 326, 338339.C. R. 176.
Cur. adv. vult.
December 80, 1014. Pbbbika J.—
The question in this.ease, as st&ted by the learned District Judge,is “ whether when a ksndyan-woman conducted by a man in digaacquires property during coverture and dies intestate leaving herhusband wad' children, her acquired property vests absolutely in herchildren, or is subject to a life interest in her husband. ” The ques-tion has been decided by the District Judge on the authority of thejudgment of this Court in the case of Saduwa v. Siri.l Thatdecision appears to have turned on a passage in Sawers' Digest, p. 8.which is as follows:“ The husband is heir to his wife’s landed
property, which will at his demise go to his heirs. ” This is a sweepingproposition, which does not appear to have been accepted by Judgesand text writers in its integrity. Chief Justice Marshall commentingon this passage says {Marshall9e Judgments, p. 3391 par. 81):“ This,
adds Mr. Sawers, is the opinion of Doloswelle Dissawa and, theChief Justice himself adds as follows:" But the chiefs of the
Udarata are unanimously of opinion that the husband is not theheir to his wife’s landed paraveni estate which she inherited from theparents nor to her acquired landed property; that, on the contrary,the moment the wife dies all interest in her estate, if she has left.noissue, reverts to her parents or her heirs, and that though the wifis entitled to the entire possession of her deceased husband’s estateso long as she continues single and remains in his house, yet thehusband must quit his wife’s estate the moment she dies* ” I mayhere mention that this last passage is, possibly erroneously, citedby Mr. Modder, in his new work on the Kandyan law, as a passagefrom Sawers' Digest; but from Marshall's Judgments it appearsthat it is a comment by the Chief Justice, and that what is statedin Sawers ends with the observation that the above proposition isthe opinion of Doloswelle Dissawa. Anyway, between the Dolos-welle Dissawa and the Udarata chief’s we find ourselves face to facewith a hopeless state of confusion in the law. Sawers, apparently,adopts the opinion of the former, and Sawers has been accepted as avery high authority on what is commonly known as the ** Kandyanlaw. ” In spite, however, of the high authority of Sawers, the effectof the proposition contained in the passage from his Digest citedabove has been whittled down a great deal by other text writersand Judges. In Dingirihamy v. Meruka2 it.was held that byKandyan law a widower has no “ right of life rent in .the paravenilands of his deceased wife, ” and Mr. Modder has enlarged on thisproposition, or perhaps has legitimately amplified it, in the case of2 8 Bal 18.2 2 C. L. R. 76.
TitertBanda v.Apptthamy
( 108 )
1914. a binna husband, and laid down in the sh*j>e of an article in his workPjpjasnT*j. (Art. 197, p. 388) as follows:“A btnna husband surviving his
-7*7* married wife (sic) has no interest at all in her property, whetherBoh**v. ancestral or acquired. " In Naide Appu v. PaUngurala, 1 Dias J.Appuhamy appears to have thought that a diga husband was " the heir, and wasentitled to succeed jto the acquired property of his deceased wife,but from the judgment of Cayley C.J. in the same case it is dearthat the proposition is to be confined to the case of a wife dyingwithout issue- Mr. Modder’s ** Article ” on this part of the subjectis as follows (Art. 204, p. 847): “ A diga married widower (sic)succeeds to all the acquired property of his wife dying intestate andwithout issue in preference to her brothers and sisters. M
We have thus three objects that zpilitate against the full operationof the general proposition cited above from Sawers1 Digest, namelybinna marriage, pamveni property, and children. Steering clear ofthese quicksands, I .think that the proposition might be' given effectto to the extent of allowing the widower of a diga marriage a lifeinterest in the acquired property of his deceased wife. This is theview taken in the judgment in .the case of Saduwa v. Siri * and4t Article ” 196 (page 326) in Mr. Modder’s book is to the someeffect. For these reasons I would affirm the judgment appealedfrom with costs.
Shaw J.—
I agree. I think that some operation should be given to theparagraph in Sawers cited before us. That it does not apply to abinna marriage or to paraveni property sufficiently appears fromother passages in Saivers and from the authorities referred to byMr. Justice Pereira. The only other case to which it can be appliedis to the acquired property of a woman in digat and I think the deci-sion in Saduwa v. Siri 2 correctly holds that the husband has a lifeinterest in the property acquired by the wife during such a marriage.
This decision seems also to be equitable, as it would appear veryhard on the husband to divest him of interest -in .the propertyacquired by the wife during a marriage in diga, which property mayvery possibly have been acquired largely by his own exertions. Iwould therefore affirm the judgment appealed from with costs.
De Sampayo A.J.—
The determination of the question involved in this appeal mainlydepends1 on .the correct interpretation of two passages at pages 8 and16.of Sawers1 Digest of Kandyan Law. The passage at page 8 is:“ The husband is heir to his wife's landed property, which will at hisdemise go to his heirs, but in the event of the wife having left a son,and the father contracting a second marriage and having, issue of the■I S S. C. C. 176.2 3 Bal. 18.
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second bed, in this ease, on the death of the father, th'> son of the 1914.first bed inherits the wholeof his mother's estate with a moiety of Db £2mfayo
the father’s estate. ” Theother passage at page 16 is:"A wifeA-J.
dying leaving a husband and children, her peculiar property of all Tikiridescription goes .to her children and not to her husband. A wife Banda v.dying barren or without surviving children, all .the property which Appuhamyshe derived from her parents reverts to her own parents or brothersand sisters and their issue, but the husband inherits all the propertyacquired during the coverture. " It will be noticed that neither ofthese passages expressly refers to the kind o^ marriage between thespouses, whether iu binnaor in diga, and that the first of these
passages does not refer tothe kind of property, whether paraveni
or acquired. I think, however, that these.distinctions, which gener-ally pervade the Kandyan law of inheritance, should be taken intoaccount in interpreting the statements of text writers, who pro-fessedly give a mere abstract and not a full exposition of the wholelaw. Now, it appears to be well settled that a binna widower hasno interest in his deceased wife’s properly, whether ancestral oracquired. See In re MoUigodde Gooniarihamy, 1 Dingmhamy v.
Mcniha, 2 and the authorities cited in Modder'B Kandyan Law undersections 197 and 208 (new edition). That being so, what doesSowers mean when at- page 8 it states that the husband is heir tohis wife’s landed property ? It seems to me that it here deals withthe case of Aiga married spouses and of acquired property. This isthe view* taken in Naide Appu v. Palinguraia. 3 which lays down thata diga married husband is his wife’s heir so far as the acquired pro-perty is concerned. It is true that in .that case the wife had diedwithout issue, and Cnylev C.J. refers tc that fact in his judgment.
But I do not think that the reasoning in the judgment of the Court,is restricted to the case of a wife dying without issue. Dias J. putsthe decision on very broad grounds. He discusses the distinctionbetween a binna and a diga marriage, and points out that, while abinna husband has no interest at all in his wife’s property, <c a digamarried woman is under greater obligations to her husband than abinna married woman. ” It seems to me that this view of the“ obligations ” of a wife to her husband is quite in accordance withthe spirit of the Kandyan law. As regards the argument that this ,decision turned upon the fact of there being no issue, it is to be notedthat the decision was that the husband succeeded to the acquiredproperty absolutely, and not merely to a life interest therein. Thatdecision is therefore no authority for saying, as contended bycounsel for the appellant, that when there are children the husbandis not entitled even to a life interest, which is all that is claimed inthis case. In my opinion the Kandyan law gives to the digahusband such a life interest in the acquired property of the deceased
i Ram. (I860-62) 6.* 2 Q. L. R. 76.^
* 2 8. C. C. 176.

( no )1914. wife, where there are children, just as a diga wife has a life interestDb 8am*'ayo the acquired property of her deceased husband in the event ofA.J.there being children. Sawers* Digest, p. 2; Manika v. Horatala: 1
TikiriNila Henaya v. Dissanayake Appuhamy. * I do not think that the
Banda v. argument, to .the effect that Sawers' Digest, p. 8, read with Sawers***** 'Digest, p. 16, indicates that the rule is applicable only to a case where
.there are no surviving children, is well founded. These passages,when closely examined, will be found to support the contrary proposi-tion. For the passage at page 8, after stating that the husband is heirto his wife's landdd property, goes on to say that if the wife left ason he would succeed to her estate on the death of the husband,which, in other words, means that in the case supposed the husbandhas the enjoyment of the property during life. A son is, of course,mentioned only by way of illustration, and it is obvious that the lawthere laid down contemplates the case of children generally. Thecomment on this passage by Marshall, p. 339, only goes to the extentof modifying it by excluding from its purview the case of birwtamarried spouses. The passage at page 16 of Savers* Digest appeal'sto me to be not inconsistent with this interpretation of the passageat page 8. For-when it says that the wife's 4< peculiar property ofall description goes to her children and not to her husband, " itapparently speaks only of the dommum of the property, and does notnecessarily imply that the husband has no right of possession of theacquired property. The next paragraph deals with the case of awife dying without children, and lays down the rule that the husbandin that case inherits the acquired property, meaning that thatproperty devolves on him in full right. This, as I above indicated,is I think the point of the decision in Naide Appu v. Pahtigurala(,supra). Lastly, we have the direct judicial authority of Saduwa v,Siri, 3 which we were invited to reconsider, but which I think is acorrect exposition, of the Kandyan law on the point at issue inthis case.
I would dismiss the appeal with costs.
Appeal dismissed.
i 3 S. C. R. 167.
6 .V, L. R. 314.
2 9 Bal. 18.