Dingiri Menika Te Al. V. Appuhamy

Present : Mr. Justice Wendt and Mr. Justice Middleton.

DINGIRI MENIKA et al. v. APPUHAMY.

D. C, Kandy, 2,313.

Kandyan ' Law-Intestate succession-Rights of diga father and uterine half-sisters of intestate's mother-Property inherited from the mother.

    Where a Kandyan, whose parents were married in diga, died intestate and without issue, leaving him surviving his father, his mother's mother, and two uterine half-sisters of his mother, and where the intestate's estate consisted exclusively of lands inherited by him from his mother, who had inherited them from her father,-

Held, that the intestate's father was sole heir to his estate, and that the uterine half-sisters of the intestate's mother were not entitled to any share thereof.

D. C, Kandy, 23,620 (1), followed.

    THE respondent Appuhamy was the administrator of the estate of his son Punchi Banda, who died intestate. Appuhamy was married to his wife, the mother of the deceased, in diga. The deceased left him surviving his father (the administrator), his mother's mother, Ukku Menika, and the appellants, who were his mother's uterine half-sisters, being issue of Ukku Menika by a second marriage. The estate of the intestate consisted exclusively of lands inherited by him from his mother, who in turn inherited them from her father, Punchirala, the first husband of Ukku Menika.

    The appellants, who were the intestate's mother's uterine half-sisters, applied for the judicial settlement of the estate of the intestate on the footing that they were his sole next of kin and heirs-at-law of the intestate.

Foot Notes:

(1) (1852) Austin 155.

    The District Judge (J. H. de Saram, Esq.) disallowed the application, holding that the intestate's father (the administrator) was the sole heir.

    In appeal.

    Walter Pereira,' K.C., S.-G., for the appellants (applicants).

    H. J. C. Pereira, for the respondent (administrator).

Cur. adv. vult.

    8th February, 1907.  WENDT J.-

    This is a petition for the judicial settlement of the administrator's account on the footing that the petitioners are the sole next of kin and heirs of the intestate. The deceased, Punchi Banda, was a Kandyan, and he died intestate and without issue. He left no brothers and sisters or their issue, but was survived by his father (the respondent), by his mother's mother, Ukku Menika, and by the petitioners, who are his mother's uterine half-sisters, being issue of Ukku Menika by a second marriage. His estate apparently consisted exclusively of lands inherited from his mother, Punchi Menika, which she had in turn inherited from her father, Punchirala, the first husband of Ukku Menika. The marriage of respondent and Punchi Menika was in diga. Letters of administration were granted to the respondent (who, as diga-married father, claimed to be the sole heir), in preference to Ukku Menika and a brother of the present appellants, who were counter-applicants.

    The present petition was dismissed by the learned District Judge, who held that the father was the sole heir, and appellants have appealed. The District Judge followed the case D. C, Kandy, No. 23,620 (1). There the District Court had held that the father was heir-at-law of his child in respect of land which the child had inherited from her mother, in preference to the issue of the mother's paternal aunt. The unsuccessful parties appealed (admitting, however, in the petition of appeal, as the District Judge informs us, that the marriage was a diga one), but the Supreme Court affirmed the decision of the Court below. No reasons for the judgment of this Court are recorded.

    Admittedly it has often been decided that the father is not the heir of his child born in a binna marriage in respect of property inherited from the mother. But the learned Solicitor-General argued that the binna marriage in the cases so decided was a mere accident, and that the ratio

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