Kiri Menika V. Ran Menika

1916. Present: Wood Renton C.J. and De Sampayo J.

KIRI MENIKA v. RAN MENIKA.

36-D. C. (Inty.) Kurunegala, 1,295.

Kandyan law-Person dying childless-Acquired property-Intestate  succession-Does a niece exclude the widow?-Rule when widow is ewessa cousin of husband-Rule as to movable property.

Under the Kandyan law, where a person dies childless, the widow is entitled to the movable property, except heirlooms.

As regards landed property, the general rule is that the widow is excluded by the deceased's parents and brothers and sisters and their issue, but she has the same life interest in her husband's acquired and hereditary property as the widow of a husband who died leaving issue. If the barren widow be the husband's paternal aunt's daughter or his maternal uncle's daughter, she inherits next to full brothers the acquired lands.

THE facts are set out in the judgment.

A. St. V. Jayewardene, for appellant.

Bawa, K. C, for respondent.

Cur. adv. vult.

May 23, 1916. DE SAMPAYO J.-

This appeal raises an interesting point of Kandyan law under the following circumstances. Ukku Banda died intestate and issueless, and letters of administration to his estate have been granted to his widow Kiri Menika, the respondent to this appeal. The intestate had a sister, Dingiri Menika, who predeceased him, leaving one child, Ran Menika, the appellant. The appellant applied to be declared the sole heir of the intestate and entitled to all his property, subject only to a life interest in the widow in the acquired property. At the inquiry, however, it was admitted that the estate consisted of acquired property only, and the inventory shows that it comprises both immovable and movable property.

The question is whether under the Kandyan law a niece excludes the widow of a person who dies childless. The authorities are agreed that the widow is entitled to the movable property, except heirlooms (Sawers 15 and 22; see also Armour 22 and Marshall's Judgments 346 and 347). I think, therefore, that the appellant's claim cannot be sustained, so far as the movable property is concerned. As regards landed property, the general rule appears to be that the widow of a person dying childless is excluded by the deceased's parents and brothers and sisters and

their issue, who are sometimes described as " near relations " (Armour 22, 23, and 86), but she has " the same life interest, and that only in her husband's landed property, whether hereditary or acquired, as the widow of a husband who died leaving issue "(Sawers 1; Marshall's Judgments 326; Modder 324). But the Kandyan law appears to draw a distinction and 'to ' regard with greater favour a widow who is also the husband's ewessa cousin, that is to say, a paternal aunt's daughter or maternal uncle's daughter. Sawers 23 lays down that " if the barren widow be the husband's paternal aunt's daughter or his maternal uncle's daughter, she inherits next to full brothers the acquired lands." Now, the respondent in this case is the intestate Ukku Banda's ewessa cousin, being the daughter of his paternal aunt Ukku Menika, and Ukku Banda not having left parents or brothers and sisters, his widow, the respondent, would, under the rule laid down by Sawers, inherit his acquired landed property, that is to say. in the circumstances of the case, his entire immovable estate, to the exclusion of the appellant, who is only the daughter of a deceased sister. But the authority of Sawers on this point is disputed by Mr. Jayewardene for the appellant, who depends on Armour, and we have been referred to Tittewelle Sangi v. Tittewelle Mohotta1[(1903) 6 N. L. R. 20.] as to the relative weight of the opinions of Sawers and Armour. I am not disposed to revive that controversy, and would be prepared to follow Armour if there were any passage there directly opposed to Sawers. But I can find no such passage. Armour omits to discuss the specific case

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