Present  : Shaw J.   1915.

KALU v. KIRIA.

364-C. R. Matale, 11,388.

Kandyan law-Mother heir to the acquired property of the children- Deed of gift subject to condition that donee should render assistance to donor-Donee dying before donor-Construction of instrument-Whether it is a testamentary disposition or deed of gift.

A Kandyan mother inherits her children's acquired properties in preference to the father. This rule is not restricted only to cases where the mother was married in binna; nor only to cases where the property has been acquired from a source other than the father.

A Kandyan deed of gift, subject to the condition that the children should render help and assistance to the donor during his lifetime, does not become null and . void on the donee dying during the lifetime of the donor.

THE facts are set out in the judgment.

Bawa, K.C. (with him A. St. V. Jayewardene and J. W. de Silva), for appellants.

Wadsworth, for defendant, respondent.

Cur. adv. vult.

November 22, 1915. SHAW J.-

The question involved in this case is the ownership of a one-fourth interest in a land called Medugahawela. The land originally belonged to one Kaluwa, who by deed dated August 21, 1895, gave it to his wife Kiri and his three children Kalu, Bodi, and

Kiriya. The deed provided that on the death of Kiri her one-fourth share should devolve on the three children. One of the children, Kiriya, died in 1897, in the lifetime of his father Kaluwa, who died in the year 1900 without having revoked the deed of 1895. By deed-dated February 18, 1915, Kiri purported to convey to the defendant the freehold of one-fourth of the land, the position taken up by her being that she, as heir to her child Kiriya under Kandyan law, was entitled to the one-fourth gifted to him by his father by the deed of August, 1895.

The first plaintiff is Kalu, one of the other children, and the second and third plaintiffs are the representatives of the other child, who survived his father Kaluwa and died in 1907. They claim that upon Kiriya's death the one-fourth interest gifted to him by the deed of 1895 reverted to his father Kaluwa, and that they, as Kaluwa's heirs, are entitled to his share, and they have brought the present action to assert their claim. The Commissioner of Requests has dismissed the plaintiffs' action, and Was appeal is brought from his decision.

The plaintiffs' case is put on three grounds. First, that the deed. of August 21, 1895, is not a deed of gift, but is a testamentary disposition; and the request of the one-fourth to Kiriya having failed in consequence of his death before the testator, Kaluwa, died intestate as to this share, and it therefore passed on his death to his other two children. Second, that the right of the mother, under the Kandyan law, to inherit the acquired property of her children in preference to the father, is not established by any-judicial authority and is not clear from the text-writers on Kandyan law, and that therefore the law of succession of the Maritime Provinces should prevail, or at any rate the dicta of the text-writers should be confined to the case of a binna married woman, and should not Be extended to acquired property that has been acquired from the father. Third, that, even assuming that the deed of August 21, 1895, amounted to a deed of gift, and not to a testamentary disposition, it was subject to a condition that the children should render help and assistance to the grantor during his lifetime, and as this became impossible on the part of Kiriya in consequence of his dying in the lifetime of the grantor, the gift to him of one-fourth became null and void.

In support of the first contention the case of Sundara v. Pieris1[(1878) 3 C. L. R. 81.] was cited, in which a somewhat similar deed was held to be a testamentary disposition. In that case, however, the terms of tile document were by no means identical to those of the. one under con