MANIKKAN et al. v. PETER.

MANIKKAN et al. v. PETER.

D. C. Kegalla, 954.

Kandyan wife-Marriage with low-country Sinhalese man residing in Kandyan territory-Death of the wife, intestate, leaving her surviving her husband and child-Death of the child-Inheritance-Ordinance No. 15 of 1876, ss. 2 and C-" Different race."

A low-country Sinhalese is not a person of " different race or nationality " (in the words, of section 2 of the Ordinance No. 15 of 1876) from a Kandyan Sinhalese. Therefore, under the proviso of the same section, the matrimonial rights of a low-country Sinhalese husband and his Kandyan wife are to be governed by the Kandyan Law.

Where D. M, a Kandyan woman, married a low-country Sinhalese man living in the Kandyan territory and died intestate, leaving her surviving her husband and an infant child, which also died,-

Held, that her mother and brother, and not her husband, should inherit her property.

THIS was an action to declare that plaintiffs were entitled to the whole of a certain land and to an undivided one-third of another land. It was admitted that the land belonged to one Dingiri Mahatmaya, and was purchased by her from her father Balahamy by a deed dated 9th October, 1889; that she married the defendant, a low-country Sinhalese residing in the Kandyan Provinces, on the 12th September, 1894; that the marriage was

registered and the husband and wife lived in Balahamy's mulgedara till the 21st December, 1896, when Dingiri Mahatmaya died intestate, leaving her surviving an infant child, who died a few days afterwards; and that the plaintiffs were purchasers from the mother and brother of Dingiri Mahatmaya.

The issue was whether the mother and the brother of Dingiri Mahatmaya or her husband inherited her property, which was situated in the Kandyan Provinces.

The District Judge gave judgment for plaintiff as follows: -

" The facts are admitted. The only question for decision is whether the succession to Dingiri Mahatmaya's lands is to be governed by the Kandyan Inheritance Law or the Roman-Dutch Law.

" In my opinion the lex loci rei citce must apply i.e., the Kandyan Law. The Matrimonial Rights and Inheritance Ordinance, No. 15 of 1876, section 2, enacts that ' whenever a woman marries, after the proclamation of the Ordinance, a man of a different race or nationality from her own, she shall be taken to be of the same race and nationality as her husband for all the purposes of the Ordinance. Save as aforesaid, this Ordinance shall not apply to Kandyans or Mohammedans, or to Tamils under the Tesavalamai.' Dingiri Mahatmaya did not marry a man of a different race or nationality from her own. The Sinhalese of the maritime provinces are not a different race or nation from the Sinhalese of the high lands, commonly called Kandyans.

" I hold that the land mentioned in the libel devolved, on the death of Dingiri Mahatmaya's child, on her mother and brother by purchase, from whom they are claimed by the plaintiff.

" Let judgment be entered for plaintiffs as prayed with costs of suit."

H. Jayawardena, for appellant.-It has boon decided in Wijesinha v. Wijesinha (9 S. C. C. 199) that the Kandyan Law does not apply to a low-country Sinhalese man resident in the Kandyan Provinces. He is not of the same race as the Kandyan. Therefore, when Dingiri Mahatmaya married the defendant, she became, under section 2 of the Ordinance, No. 15 of 1876, a low-country Sinhalese. The matrimonial rights of these persons must be governed by the provisions of that Ordinance. Upon the death of Dingiri, section 26 made her surviving husband her heir to one-half of her immovable properly and the other half went to her infant child; and upon the death of the child intestate, its half went under section 40 to the father (the defendant) by the North Holland Law. The judgment of the Court below is thus clearly wrong.

Bawa (with him Dornhorst), for respondent.-That would be the conclusion if the premises were allo

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