Dingiri Menika Et Al V. Appuhamy

Re Estate of PUNCHIRALA, Deceased.

D. C., Kandy, 1,839 (Testamentary ).

DINGIRI MENIKA et al., Petitioners,

v.

APPUHAMY, Respondent.

Kandyan Law-Succession to acquired property of intestate-Uterine half-brother of intestate-Bight of uterine half-sisters, married in diga, to succeed jointly with their half-brother.

Per curiam (with some hesitation), where a Kandyan died intestate and without issue the lands acquired by him devolve on his uterine half-brother, to the exclusion of his uterine half-sisters who had married in diga.

THE petitioners alleged in their petition that the respondent, as administrator of the estate of the deceased Punchirala, filed a final account on the footing that he was the sole heir of the intestate, ignoring the rights of the first and second petitioners as the uterine sisters of the intestate, and the third and fourth petitioners as the children of another of his uterine sisters. They prayed that the respondent be compelled to make a judicial settlement upon the footing that the petitioners are entitled to three-fourth shares, and the respondent to the remaining one-fourth share.

The District Judge (Mr. J. H. de Saram) dismissed their petition by the following judgment: -

" The first and second petitioners are the diga married sisters of the respondent, the administrator. The third and fourth petitioners are the nephews of the respondent. Their mother was also married in diga. The respondent is the uterine half-brother of the intestate.

" The question is whether he is the sole heir of the intestate, or whether the petitioners succeed to the estate jointly with him. I understand that the bulk of the property was the intestate's acquired property. The point involved in the case is whether the rule of forfeiture consequent on a diga marriage is recognized as between uterine half-brothers and sisters of a person dying intestate. That rule is recognized as between a full-brother and sister. Armour lays it down thus on page 43: -

" ' If a man died without issue and intestate, leaving a sister married out in diga and a brother, the latter will succeed to the

deceased's share of the paternal paraveni lands, to the exclusion of the diga married sister, whether the said sister had been so married away previous to the demise of their father or subsequently.'

" It appears to me that there can be no difference between the full-brothers and sisters of an intestate and his half-brothers and sisters inter se. The case cited for the petitioners (D. C, Kandy, 4,054, Austin, 19) is distinguishable from the present, because there the competitors for the inheritance stood to each other in the relation of the half-blood only, while here they are all of the full-blood among themselves, though of the half-blood in relation to the intestate. The Supreme Court there pointed out that, if the plaintiff had a brother or sister married in binna of the full blood, they would have taken the inheritance to the exclusion of the plaintiff. It is true the question there was the inheritance of the common parent, while here it is of the half-brother, but I do not think this makes any difference in principle. The property, whether ancestral or acquired, stands on the same footing in respect of forfeiture.

" I am of opinion that the petitioners have no right to inherit any share of the intestate's property. I dismiss their petition with costs."

The petitioners appealed. The case was argued on 1st May, 1900. Van Langenberg appeared for appellant. Bawa, for respondent.

23rd May, 1900. Lawrie, J., and Moncreiff, J., directed the District Judge to ascertain whether one Kiri Menika, who appeared in the testamentary proceedings, alleging herself to be the widow of Punchirala, claimed any part of his estate, and for this purpose the record was remitted to the Court below, with the following observations of Lawrie, J.: -

" This appeal raises interesting and difficult points in

Click Here to Read the rest of this document