Ukkuhamy V. Bala Etana

 

Present: Mr. Justice Wendt.

 

UKKUHAMY v. BALA ETANA et al.

 

C. R., Kandy, 15,862.

 

Kandyan law-Devolution of property of deceased Kandyan man-Con-test between mother and brothers and sisters-Preferent right of mother.

 

Where a Kandyan dies unmarried, intestate, and without issue, his acquired immovable property   devolves on  his mother  (the father    being    dead) in  preference to his (deceased's) brothers    and sisters.

 

A PPEAL by the defendants from a judgment of the Commissioner of Requests, Kandy.

The facts are fully set out in the judgment.

 

R. L. Perera, for the defendants, appellants.

 

E. H. Prins, for the plaintiff, respondent.

 

Cur. adv. vult.

 

May 26, 1908.    WENDT J.?

 

The only question left by the parties to the Commissioner at the trial was whether the acquired immovable property of a Kandyan man dying unmarried and without issue is inherited by his brothers and sisters as the plaintiff contended, or by his mother (the father

 

 

 

being dead) as contended by defendants. The mother, who is now dead, has conveyed the land to the defendants, who are two of her daughters,   sisters   of   the   propositus.    The   plaintiff   claims   to   be    another   sister,  and  apparently holds  a  conveyance  from  a fourth sister.    The learned Commissioner held that the mother took a usufruct  only in  the  lands,   and  that  that  usufruct  having  now  been determined by her death, defendants could have no title to the lands; that is to say, presumably no title under their mother's conveyance. There is nothing to show why they should not inherit jointly with their sister, the plaintiff.

 

It is recorded by the Commissioner that plaintiff's proctor relied on Bungappu v. Obias Appuhamy,1 and defendant's proctor on Ukkurala v. Tillekeratne,2 but neither of those cases embodies an authoritative decision. In the former it was not denied that the dominium in the intestate's acquired lands had passed to his brothers and sister, and the contest was, whether the mother had only an inalienable right to maintenance, or a life interest which she could convey to another. The mother was living and had conveyed all her interest to the defendant, who claimed that, in the partition that the Court was making, the life interest should be allotted to him. In Ukkurala v. Tillekeratne the only question submitted to the Court was whether the property in question should be regarded as the paraveni or the acquired property of the intestate owner, it being expressly admitted that in the latter case it passed to the mother in preference to the brothers and sisters. The Court was not asked to decide, and it expressly refrained from deciding, what was the nature of the right acquired by the mother. The only other case to which counsel directed my attention was that of Punchirala v. Dingiri Menica,3 where the question was, whether the mother was sole heiress to the paraveni lands of her child who had died unmarried and without issue, as against the father's sister, there having been no brothers or sisters of the intestate. Lawrie J. (Dias A.C.J. concurring) held that the mother was sole heiress, and he quoted with approval the judgment of the Judicial Commissioner's Court in a case decided on September 7, 1824, in these terms: " The chiefs after due deliberation gave it as their unanimous and unqualified opinion that a mother is the heir of her only fatherless child dying without issue, however the property the child dies actually possessed of may have been acquired, whether it shall have been the paraveni property of the child's father or accrued to the child in any other way, and that to the exclusion of the child's father's family. " It appears to have been contended in the case of Punchirala v. Dingiri Menika, upon the strength of the passage in Sawers' Digest, p. 8., repeated by Sir Charles Marshall, p. 33

Click Here to Read the rest of this document