TITTEWELLE SANGI v. TITTEWELLE MOHOTTA.

TITTEWELLE SANGI v. TITTEWELLE MOHOTTA.

D. C., Kurunegala, 1,948.

Kandyan Law-The lathimi rights of a childless widow to her husband's acquired property, in preference to his half-brother-Relative weight of the authority of Armour and Sowers.

Where a Kandyan died leaving acquired property, and there was a contest between his childless widow and his half-brother for such property:

Held, that the widow was his heir, and as such was absolutely entitled to his property by lathimi right in preference to his half-brother.

The relative weight of the opinions of Sawers and Armour on the point in question discussed and considered, and the latter authority approved and followed.

THE lands in question in this case were the acquired property of Kiriya Gandureya, a Kandyan, who died two years before action brought. The plaintiff, as Kiriya's widow, complained that the defendant, who was her husband's half-brother, had taken forcible possession of the lands. Kiriya left no children. He survived his parents. He never had a brother. He had a sister, who predeceased him, leaving no issue.

The District Judge (Mr. Mason ) found that in such a case, on the authority of Armour (Perera's Edition, p. 23), plaintiff, as Kiriya's widow, had an absolute lathimi right to the lands of her husband, to the exclusion of the deceased's more distant relatives. He added: "Mr. Modder's contention that defendant being a half-brother was not a distant relation, and therefore not liable to exclusion, is untenable. The grammatical construction of the words ' to the exclusion of the deceased's more distant relations ' is to the exclusion of the deceased's relations more distant than those already named, i.e., full-brothers and sisters and their children."

A decree was accordingly entered in favour of plaintiff for the lands claimed, with damages and costs.

The defendant appealed.

Sampayo, K.C., for appellant.-The passage cited from Armour, p. 23, in support of the plaintiff's contention, is not on all fours with the present case, and does not apply. Armour's illustration would apply if the special conditions therein specified were fulfilled. He wrote regardless of the strict requirements of grammatical rules and canons of construction, as his book plainly showed, and Perera adopted the author's language in his edition. Therefore it would not be wise to be guided by the grammatical arrangement of the phrases and sentences in Armour's book,

without regarding the spirit of the Kandyan Law. The concluding portion of the passage from Armour supports the appellant's contention, that plaintiff cannot succeed to the exclusion of the defendant. A childless widow may succeed, but it was only in very exceptional cases, and the exception mentioned by Armour receives support from Sawers, who gives another illustration: " but if the barren widow be the husband's paternal aunt's daughter or his maternal uncle's daughter, she inherits, next to full-brothers, the acquired lands":-all , which clearly showed that it was only in rare instances that a childless widow succeeded. None of the exceptional circumstances referred to in the above illustration were proved to exist in the present case. Unlike in other cases, the presumption did not arise here that the lands in question were acquired through the assistance and the industry of the widow. Under the circumstances, therefore, all that the widow might fairly and reasonably expect was maintenance out of the estate, but not the entire estate-which was a large one-and which ought to revert to the rightful heir, the appellant, and be thus conserved in the deceased's family, to which respondent was a stranger. That is a ruling principle of the Kandyan Law.

H. A. Jayawardene, for respondent.

Cur. adv. vult.

20th February, 1903. Layard, C.J.-

The plaintiff complains that the defendant, who is Kiriya's half-brother, has taken forcible possession of certain lands.

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