Punchihamy Et Al., V. Punchihamy Et Al.,

1915. Present  : Wood Renton C.J. and De Sampayo A.J.

PUNCHIHAMY et al. v. PUNCHIHAMY et al.

85-D. C. Kurunegala 4,909.

Kandyan law-Kandyan marrying a low-country Sinhalese woman-Offspring not Kandyan.

The children of a marriage between a Kandyan man and a low-country Sinhalese woman are not to be regarded as Kandyans.

THE plaintiffs-respondents brought this action against the defendants-appellants for the recovery of lands marked 1 to 12 in the schedule attached to the plaint.

According to the plaintiffs the original owner of these lands was one Punchirala, a Kandyan, married to one Karonchihamy, a low-country Sinhalese woman, and had by her three children, Ungurala. Menuhamy, and Dingiri Menika.

Punchirala, by deed P1, gifted, in 1882, the first five lands mentioned in the schedule to Karonchihamy, Ungurala, and Menuhamy, and in the same year, by deed P2, conveyed lands 6, 7, 8. and 9 to Dingiri Menika. In respect of the remaining lands Punchirala died intestate.

Punchirala died in 1884, Menuhamy died without issue the same year, Karonchihamy died about 1889, Dingiri Menika died about 1894, and Ungurala died in 1910.

The plaintiffs, who are the children of Dingiri Menika, alleged that Ungurala died without legitimate issue, and claimed all the above-mentioned lands by right of inheritance from their mother Dingiri Menika and their uncle Ungurala.

The defendants claimed to be the legitimate children of Ungurala, and alleged the lands were not the sole property of Punchirala, but of Punchirala and one Malhamy. They further claimed title to the lands by right of prescriptive possession.

The District Judge held that the defendants did not acquire any right to the lands through Ungurala. The defendants appealed.

Bawa, K.C. (with him A. St, V. Jayewardene, Batuwantudawa, and A. L. Wijewardene). for defendants, appellants.

Anton Bertram, K.C, A.-G. (with him S. Obeyesekere, C.C.), as amicus curiae.

The Supreme Court delivered the following judgment, and sent the case back for expert evidence:-

October 0, 1914. WOOD RENTON C.J.-

In my opinion there should be farther inquiry in this case in the District Court before we are called upon to decide the important question of law involved in it, namely, whether under the Kandyan

Jaw the issue of a Kandyan man married to a tow-country woman is Kandyan. The learned District Judge has stated that the decision of this Court in Mudiyanse v. Appuhamy1[(1913) 16 N. L. R. 117.] is in conflict with the view expressed by " our Courts in innumerable decisions." T am not myself aware of any such decisions, and I take it that the District Judge is referring to decisions of the District Court, bearing directly or indirectly on the subject, which have not come up in appeal. I hope that when the case comes back to us we shall be furnished with fall particulars of these decisions.

I would set Aside the decree under appeal and send the case back to the District Court, in order that expert evidence may be adduced on the following points:-

(1) What is the position, according to Kandyan custom, of the children of a low-country Sinhalese woman married to a Kandyan man?

(2) What is the position, according to Kandyan custom, of the children, of a Kandyan woman married (a) in binna and (b) in diga to a low-country Sinhalese man?

After this evidence has been recorded the learned District Judge will adjudicate upon the case afresh.

PEREIRA J.-I agree.

DE SAMPAYO A.J.-I agree.

At the second trial the District Judge (G. W. Woodhouse, Esq.) delivered the following judgment:-

The decree in this case was set aside by the Supreme Court in appeal, and the case sent back in order that expert evidence might be adduced on the points stated in the judgment. This Court was directed then to adjudicate upon the case afresh. Three witnesses were called, all of whom are acknowledged to be persons thoroughly conversant with t

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