[FULL BENCH.]

1920o Present : Bertram C.J. and De Sampayo J. and
Loos A.J.

KUMA v. BANDA.

256-C. R. Anuradhapura, 9,948

Kandyan law-Ordinance No. S of 1870-Father's right to inherit acquired property of illegitimate son-History of the Ordinance may be looked at in order to interpret Ordinance-The materials which may be used for ascertaining that history.

Children who might under the ancient Kandyan law be considered legitimate can no longer claim that, status if the marriage of their parents has not been registered, and if under the Kandyan law illegitimate children in any given case have rights of inheritance, they have the same rights now, but not otherwise.

A father of an illegitimate child has no right of succession to the acquired property of such child.

For the purpose of construing an Ordinance where the meaning of it is doubtful, and even where a doubt is suggested, though not entertained, it is legitimate to inquire into its history.

BERTRAM C.J.-If for the purpose of ascertaining the history of an enactment we may look at the report of the Royal Commission on which it is founded, and at the report of a Select Committee antecedent to its introduction, I see no reason why we may not refer to the report of a Select Committee to which the measure was referred for consideration, in so far as that report deals with the history of the question out of which the legislation arose.

THE facts appear from the judgment of De Sampayo J.

Bawa, K.C. (with him Weerasinghe), for defendant, appellant.- The non-registration of a marriage between Kandyans does not affect the mutual rights of inheritance between parents and children. Under the old Kandyan law a child had full rights of inheritance if his parents were of equal rank and had cohabited together with the consent of their relatives. The fact that the customary marriage ceremonies were not performed, and that there was consequently no legal marriage, did not deprive the child of his rights. Bights of inheritance between parents and children depended not on the legal validity of the parents' marriage, but on parentage, subject to the requirements as to equality of rank and family consent. If these requirements were fulfilled, the children were legitimate. It is with reference to these requirements that the terms " legitimate " and " illegitimate " are defined in the Nitiniganduwa, where the rule is stated that a father cannot inherit the property of his illegitimate child. The Kandyan conception of

legitimacy cannot be separated from the rules of inheritance. We are not justified in importing a conception of legitimacy foreign to the Kandyan system of law into these rules.
 
When Ordinance No. 3 of 1870 declared that no marriage shall be valid unless registered, it had in mind the validity of the marriage as between the spouses. If the Legislature had intended to take away the rights of inheritance of persons who had such rights under the Kandyan law, it would have done so in express terms. There is no reference in the Ordinance to rights of inheritance. It has always been recognized that the Kandyan rules of inheritance have been unaffected by legislation. (See Raja v. Elisa, Modder, p. 510.)

That the non-registration of a marriage does not affect questions of inheritance is illustrated by the forfeiture which operates on the diga marriage of a daughter. Though such marriage is invalid through non-registration, the daughter loses her rights of inheritance. (Sec. 3 C. L. R. 54.)

According to Kandyan law, when a son dies issueless, his property goes to his nearest blood relation, i.e., to his father, unless the child be the issue of a prohibited union, and illegitimate children succeed to their father's property. Appuhamy v. Lapaya;1 In re the estate of Sundara;2 Ban Menika v. Menik Etana.3 Father's right to inherit is not affected by formalities attendant on marriage.

Counsel also cited Modder, p. 391