Present: Shaw J. and De Sampayo J

DINGIRI v. UNDIYA et al.

431-D. C. Kegalla, 4,534.

    Kandyan law-Husband dying leaving behind widow and illegitimate children-Life interest of widow.

A Kandyan widow is entitled to a life interest in the whole of the acquired property of her husband to the exclusion of her husband's illegitimate children.

KIRIBANDIYA, a Kandyan, died leaving a childless ." widow (who married a second time after Kiribandiya died) and an illegitimate child, the second defendant, a minor, who appeared by his guardian, first defendant.

The widow (plaintiff) claimed in this action a life interest in the entire property, which consisted of only the acquired property of the deceased.

The second defendant contended that plaintiff was entitled to a life interest in one-half of the property, and that second defendant was entitled to the entirety of the property and to a life interest in one-half. The District Judge upheld the contention.

The plaintiff appealed.

J. W. de Silva, for the appellant.-The learned Judge is wrong in deciding that the plaintiff was entitled to possession of only one-half. Her second marriage does not deprive her of her rights (see Modder's Kandyan Law, 325, 330; 6 N. L. R. 214; 19 N. L. R. 260). Even the legitimate children cannot deprive the widow of her life interest. It was held that the children cannot bring a partition action for the acquired property during the widow's lifetime (15 N. L. R. 154). They cannot sue her in ejectment (Modeler 326).

[De Sampayo J.-Is Tikiri Menika v. Menika1[1 (1917) 20 N. L. R. 12.] against you?] There the children were legitimate children by another bed. The same principles do not apply to illegitimate children merely because they have a right to inherit the father's property along with legitimate children. Moreover, in the case referred to the Court gave several illegitimate children only a life interest in one-half, but here there is only one illegitimate child. The most that the second defendant can claim, if that case applies, is some allowance, and not a life interest in one-half the property. The Full Bench has in Rankiri v. Ukku 2[1 (1917) 20 N. L. R. 12.] the decided the point against the respondents.

[De Sampayo J.-That was a contest between the rights of a sister and an illegitimate child.] The widow was alive, and her rights to life interest had to be considered. The Court held that the illegitimate children were entitled to the dominium only, and the widow to the life interest; the decision in so far as it refers to the widow's -right is not a mere orbiter dictum. Counsel cited Modder, 403, 405, 408, and 409; Rankiri v. Ukku.1

H. J. C. Pereira (with him Batuwantudawe), for the respondent.- In Rankiri v. Ukku J the widow's life interest was not in issue, but only the question of title. Illegitimate and legitimate children are now placed on .the same footing. On the principle enunciated in Tikiri Menika v. Menika 2 the illegitimate child must have a share, otherwise he will have nothing to depend upon as long as the widow is alive. According to Kandyan law the father must maintain the illegitimate children. [De Sampayo J.-Yes, the father, but not the widow. She is entitled to life interest in property earned by her along with her husband.] That will be the same when there are legitimate children by the first bed, as in Tikiri Menika v. Menika.2

In Rankiri v. Ukku 3 Wendt J. says: " It appears to be well settled that where a man leaves Roth legitimate and illegitimate children, his acquired property is shared between them, each branch taking a moiety." The widow's rights are limited where all the property consists of acquired property. Counsel referred to 6 N. L. R. 214; 19 N. L. R. 260.

J. W. de Silva, in reply.-Wendt J. in the passage cited at page 135 refers to the ultimate rights after the death of the widow (see Modder 408)

Cur. adv. vult.

January 29, 1918. DE