WICKREMENAYAKE et al. v. PERERA et al.

Present: The Hon.   Sir Joseph T.  Hutchinson,   Chief Justice,

and Mr. Justice Wood Renton.

 

WICKREMENAYAKE et al. v. PERERA et al.

 

D. C., Kandy, 2,191.

 

    Adulterine bastards-Children born ex prohibito concubitu or damnato coitu-Right to inherit mother's property-Roman-Dutch Law- Non-access-Evidence    of    husband.

 

A husband is a competent witness to prove non-access.

 

Under the Roman-Dutch Law adulterine bastards, inasmuch as they were born ex prohibito concubitu, were debarred from inheriting   the   property   of   their   mother.

 

Adultery being no longer an offence, such persons cannot  now  be said to be born    ex    prohibito    concubitu or ex  damnato    coitu,  and are  therefore    not    prevented    from    taking     by    inheritance    from    their  mother.

 

APPEAL   from   a   judgment   of   the   District   Judge   of   Kandy, (F.  R. Dias, Esq.).    The facts are fully set out in the following  judgment  of  Middleton   J.   on  a  previous   appeal   (October   11, 1907): -

" The question in this case is whether the adulterine offspring of a deceased woman are entitled to inherit their mother's property with the legitimate issue. It has apparently been admitted by the proctor for the respondents to this appeal that they were,  in fact, 

 

 the issue of the adulterous consortment of their mother and a man other than her husband. This is an admission against the interests of the respondents, who are minors, which the Court would not allow to be made on their behalf, if upon that admission it found itself bound to decide against their claims. The children in question are admittedly the offspring of low-country Sinhalese and not Kandyans.

 

" The learned District Judge has held in favour of the respondents' claim on grounds which he has extracted from the judgments of myself and De Sampayo A. P. J. in Karonchihamy v. Angohamy.1 The authorities on the question are Vanderlinden (1, X., 3, p. 164, of Henry's translation), who says that illegitimate children succeed to the inheritance of their mother ab intestato, as the mother makes no bastards. Grotius (2, 27 and 28, p. 190, of Maasdorp's translation, Book II., chapter XXVII., section 28) says: ' In reference to the mother, illegitimate children are in the same relation as legitimate, unless, indeed, they are sprung ex prohibito concubitu, in which case they and their descendants cannot inherit ab intestato.' Van der Keesel (Book II., chapter VII., section 345, Lorenz's translation) says: ' In Dordrecht under a particular law and in South Holland adulterine and incestuous children also succeed to the mother.'Section 40 of Ordinance No. 15 of 1876 makes the rules of the Roman Dutch Law as it prevailed in North Holland to govern casus omissi. Van Leeuwen, in the Censura Forensus, Part I., Book I., chapter III., section 10, says: 'Ex damnato vero coitu nati sunt adulterini et incestuosi qui neque patri neque matri eorumque agnatis aut cognates succedere possunt ??           nisi quoad alimenta necessaria. The preceding section 8, as translated by Schneider, p. 37, shows that the term ' illegitimati ' embraced both naturales spurii and those ex damnato coitu nati, the two former having the right of inheritance from their mother, but not the latter. Voet (38, 17, 9) says: nostris tamen et plurium aliorum moribus its progeniti adulterinis accensendi sunt, et ob id ne matri quidem ab intestato heredes esse possunt.' I gather from Voet that there was some doubt as to whether bastards, naturales, or spurii could inherit from their mother according to the opinion of some writers.

 

"I am not aware that the Ceylon Law or Sinhalese custom recognize any difference between incestuous and adulterine bastards and bastards not so procreated, but the English Law gives no right of inheritance from the mother to any bastard. It seems unreaso

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