1913 Present: Lascelles C.J.

RAN MENIKA v. MUDALIHAMY

421-C. R. Kegalla, 11,017.

Kandyan law-Donation by mother of her acquired property to her children-Death of mother and children-Maternal grandmother heir to property in preference to father.

A Kandyan mother married in bina donated her acquired property to her children. The children died intestate and issueless after their mother.

Held, that the property devolved on their maternal grandmother in preference to their father.

" The father is not the heir of the property of his children born in a bina marriage, which they have acquired through their mother; the maternal uncles or next of kin on the mother's side being the heir to such property; but the father will succeed to such children's property if otherwise acquired."

THIS was an appeal from the following judgment of the Commissioner of Requests, Kegalla (W. de Livera, Esq.):-

I have to decide in this case a question of Kandyan law. On the admissions the following issue has been framed :-

"When Punchi Banda and Punchi Appuhami died, did their father, Menikrala, or their maternal grandmother, Dingiri Amma, succeed to their inheritance."

After a perusal of the numerous authorities quoted by counsel I find there is a recognized difference in the social status of a bina husband from that held by a diga husband, and there is a marked distinction shown in the inheriting status of bina to diga husbands (7 N. L. R. 242).

A bina husband has no right to or interest in his wife's property, whether ancestral or acquired, after her death, whether she has left children or not.

A diga husband succeeds to his wife's acquired property when she has left no children (2 S. C. C. 176), and when she has left issue to a life interest therein. I would refer to C. R. Kegalla, 6,766, decided on August 24, 1905, appeal judgment February 22, 1906. In this case the passages from Sawer's Digest in pages 8 and 13 (Ondaatje's edition) are discussed. The passage in page 18 clearly states: " The father is not the heir of the property of his children born in a bina marriage, which they have acquired through their mother. The maternal uncles or next of kin on the mother's side are the heirs to such children."

In the passage in page 8 : " The husband is heir to his wife's landed property, which will at his demise go to bis heir."[*] I find a note in another edition of Sawer, which Mr. Ondaatje has omitted in his edition.

I find in the case reported in 9 S. C. C. 34 it was held that a child's grandmother and uterine half-sister of the latter was preferred to the bina husband. This is a Full Court judgment. The passages from Armour do not apply; they refer to " Jateke uruma." Under these circumstances, I answer the issue that the maternal grandmother succeeded to the estate of Punchi Banda and Punchi Appuhami in preference to their father Menikrala. I therefore hold that the defendant, the full brother of Dingiri Amma, is entitled to the land, and dismiss the plaintiff's action with costs.

The plaintiff appealed.

Bawa, K.C., Acting S.-G., for the plaintiff, appellant.-The father is the heir to the child's acquired property under the Kandyan law (Pereira's Armour 88). Of the two tables given by Sawer, Table B applies to this case.

[*]Note.-This is the opinion of Doloswala Dissawa of Sabaragamuwa, but the chiefs of the Udarata are unanimously of opinion that the husband is not the heir to the wife's landed paraveni estate which she inherited from her parent nor of her acquired landed property. The moment the wife dies the. husband loses all interest in his wife's estate, which, if she left no issue, reverts to her parents or their heirs. Though the wife is entitled to the entire possession of her deceased husband's estate so long as she continues single and remains in her house, the husband must quit his wife's estate the moment of her demise.

According to Kandyan law, where