[PULL BENCH.]

1921. Present : Ennis A.C.J., Shaw J., and Schneider A.J.

LAMAHAMY v. KARUNARATNA.

130-D. C. Kalutara, 8,940.

Action for maintenance of illegitimate child against administratrix of father's estates-Was Roman-Dutch law on the point introduced into Ceylon ?-Are all claims for maintenance confined to the Maintenance Ordinance ?

Per ENNIS A.C.J. and SHAW J. (SCHNEIDER A.J. dissentiente).- Since the enactment of the Maintenance Ordinance all applications against a husband or father for maintenance of his wife or children, legitimate or illegitimate, must be made under the provisions of that Ordinance.

Per FULL COURT.-Where plaintiff brought an action in the District Court against the administratrix of the estate of G claiming maintenance for an illegitimate child of G,-

Held, that no action lay.

THE facts appear from the judgment.

E. W. Jayawardene, for defendant, appellant.-The effect of Ordinance No. 19 of 1889 was to do away with all the Roman-Dutch law regarding maintenance. In Menikhamy v. Loku Appu1 Bonser C.J. held that a wife had no right to bring a civil action for maintenance when deserted by her husband. This was followed by Wood Renton J. in Perera v. Nonis2 and later by Shaw and De Sampayo JJ. in Lebbe v. Natchie.3 The whole of the Roman-Dutch law was not introduced into Ceylon. See Korosse Rubber Company v. Silva4 Under the Maintenance Ordinance it has been held that the legal representative was not liable (Dingitto v. Appuhamy.5) There is nothing in the Roman-Dutch authorities to support the proposition that the administrator of the estate of a deceased person is liable for maintenance. He is a different person from the heir as known to the Roman-Dutch law. Counsel also cited Rankiri v. Kiri Hattena,6 Koch's Reports 35, 2 Halsbury 451, 14 Halsbury 305, Walter Pereira 175.

F. de Zoysa (with him Croos-Dabrera), for plaintiff, respondent.-

It is clear from Voet (XXV., 3, 5) that a civil action was maintainable for maintenance, and that such action could be brought

Foot Notes.

1 (1898) 1 Bal. 161.             4 (1917) 20 N. L. R. 65.
2 (1908) 12 N. L. R. 263.     5 (1916) 3 C. W. R. 64.
3 (1918) 5 C. W. R. 145.      6 (1891) 1 C. L. R. 86.

even against the heirs. See also Groenewegen 34,1, 15. Rankiri v. Kiri Hattena1 has been questioned in Subaliya v. Kannangara,2 where Bonser C.J. said that a civil action was competent, and that the Ordinance only provides a " speedier and less costly remedy." It is submitted that the Maintenance Ordinance, No. 19 of 1889, does not do away with the Common law which is still in force. The Roman-Dutch law relating to parent and child must be considered to have been introduced into the Colony, and the contrary cannot be assumed without proof. The Vagrants Ordinance, 1841, merely made it an offence not to maintain one's children. Section 22 of Ordinance No. 15 of 1876 says that a wife with separate property is liable to maintain her children as "a widow is now by law subject to for the maintenance of her children." This clearly contemplates the existence in Ceylon of a Common law right regarding maintenance. Under the Ordinance of 1889 only a sum of Rs. 50 can be ordered as maintenance. There may be cases where this is inadequate, and a civil action for a larger sum more appropriate. The passage from Voet shows that the heirs may be sued. The administrator of the present day steps into the shoes of the heirs. Counsel also cited Ranasingha v. Pieris.3

Cur. adv. vult.

February 16,1921. ENNIS A.C.J.-

The defendant-appellant in this case is the widow and administratrix of one Bastian Goonetilleke. The plaintiff-respondent is the mother of a child, Omelis Nona, a girl of two years of age. It is admitted that Omelis is the illegitimate child of Bastian. The action was a civil suit to recover maintenance for the child from the estate of the deceased. The defendant raised two points of law, which were