1913 Present: Wood Renton J. and Pereira J.

MUDIYANSE v. APPUHAMY et al.

315-D. C. Kegalla, 3,236.

Law applicable to offspring of Kandyan father by Low-country Sinhalese woman-Domicil as a teat on questions relating to applicability of Kandyan law-Rule of law as to nationality of wife or child- Applicability of section 2 of Ordinance No. 15 of 1876 to union between Kandyan and Low-country Sinhalese woman.

The offspring of a Kandyan father by a Low-country Sinhalese woman cannot be regarded as a Kandyan, subject to the incidents of the Kandyan law.

Domicil is not a test to be applied in the solution of questions as to the applicability of the Kandyan law.

The rule of law that the wife takes the husband's nationality, and the child the father's, holds good only where the term " nationality " is used in its strictly legal sense, that is to say, in the sense of subjection to the flag of a particular sovereign power. It has no place when the word is used in a loose sense, in the sense, for instance, of " race," there being no rule of law that the offspring of a mixed union belongs to the race either of the father or the mother.

Held, further, following Manikkan v. Peter,1[4N. L. R.243.] that a Low country Sinhalese woman is not a person, of different race or nationality from a Kandyan. Section 2 of Ordinance No. 15 of 1876 does not therefore apply to the case of a union between a Kandyan and a Low-country Sinhalese woman.

THE facts are set out in the following judgment of the District Judge (W. de Livera, Esq.):-

I have to decide in this case pure questions of law. The plaintiff at the trial restricted his claim to Kehelkotuwawatta (half share) and half share of the other land; they belonged to Julis Appu, who died leaving a widow, Lucyhami, and two children, Mango Nona and Brampy. They were Low-country Sinhalese.

Mango Nona was married to Samuel Appu, a Kandyan, on June 2, 1887. Samel Appu lived with her in her house. They had a son, John Sinno, born in 1888, May 20 (P 1).

By mutual consent the marriage of Samel Appu and Mango Nona was dissolved on June 10, 1889 (D 6), and the child was to remain with the mother by agreement. Mango Nona died in January, 1899. John Sinno died on January 3, 1904, in the Karawanella hospital when he was sixteen years old (P 2).

Plaintiff purchased from Samel Appu by deed 20,579 in March, 1910, the entirety of the lands in question. The plaintiff at the trial restricted his claim to an undivided half share of the lands.

Brampy, the brother of Mango Nona, died about ten years ago, leaving his widow, Agidahamy, and two children, Mico Nona and Punchi Mahatmaya.

The defendants have purchased the entirety of the land from them- 6,171, March 7, 1910 (D 1).

The first defendant has sold half share to one Punchi Appuhamy and Dingiri Appuhamy-20,689, June 29, 1910 (D 2). On the facts admitted several issues have been framed. In the view I take of this case only the first and second need be decided.

Though it was denied at first that John Sinno was a child of Mango Nona, later on, after production of documents, the defendants counsel did not deny John Sinno was the child of Mango Nona and Samel Appu.

The important question, then, is, who is the heir of that child, the father, or Brampy, the uncle (child's mother's property) ?

Mango Nona was a Low-country woman settled in the Kandyan country; Samel Appu was a Kandyan. The child, I hold, acquires the nationality and domicil of the father, and would have to be taken as a Kandyan; and that being so, in my opinion the inheritance to the child's property would have to be regulated by the Kandyan law.

It was not disputed by the plaintiff's proctor that if the Kandyan law were to apply Samel Appu would have no right. In a recent case (11,017-C. R. Kegalla) decided by me on October 8, 1912, I held the father is not the heir of the property of his children born in a bina marriage,