Present : Schneider and Garvin JJ. 1922

SENEVIRATNE v. HALANGODA et al.

 228--D. C. Kandy, 27,718.

Kandyan law-Diga marriage-Wife dying issueless-Husband does not acquire any portion of wife's landed property acquired before marriage-Wife dying leaving children-Husband's rights-Binna widower excluded from, rights to landed estate of deceased wife.

Where a Kandyan wife married in diga dies issueless, the husband does not inherit any portion of the wife's landed property acquired before marriage.

" Inherited property reverts to the source from which it was inherited where there is no issue. "

When a woman married in diga dies leaving issue, her husband takes a life interest in her landed property, which on his death will go to her children, or, if they have all died without issue, to their next of kin in their mother's family. In the above case if there be no issue, her husband will take only such landed property as he and his deceased wife acquired during coverture, the rest of the property passing to her parents and next of kin.

A binna widower is completely excluded from any rights to the landed estate of his deceased wife.

THE facts are set out in the judgment. (See also 22 N. L. R. 472 for judgment of the Supreme Court on the first appeal in this case.)

Drieberg, K.C. (with him Hayley and Navaratnam), for appellant.

H. J. C. Pereira, K.C. (with him Canakaratna), for respondents.

Cur. adv. vult.

February 13, 1923. GARVIN J.-

This appeal raises a question of Kandyan law of considerable difficulty. The facts of the case are simple. Tikiri Kumarihamy, by a deed dated August 5, 1899, gifted the land, which is the subject of this action, to Wilmot Illangakoon and Lilawathi Panabokke, in consideration of their marriage which was about to take place. They were married in diga on September 21, 1899. Lilawathi Panabokke died intestate and without issue on July 18, 1901. On July 18, 1919, Illangakoon transferred a half share of this land to the plaintiff, on the footing that he was his deceased wife's heir. The defendant claims this half share, his submission being that Lilawathi's heir was her mother, who by last will bequeathed the share to him,

The question for determination is whether the husband is the heir at law to his wife's landed property acquired before marriage, it being premised that the marriage was in diga, and that the wife left no children.

The District Judge has affirmed the right of the husband to this property, and bases his conclusion on a certain passage in Sawers' memoranda on the Kandyan Law, which is reproduced in Madder's edition at page 11, section 31. Since it is upon this passage learned counsel for the respondent also relied, I propose to proceed to consider it at once.

The passage as it appears in an original manuscript signed by Mr. Sawers, recently acquired by Mr. F. A. Hayley, runs as follows: " The husband is heir to his wife's landed property, which will at his demise go to his heirs, but in the event of the wife having left a son, and the father contracting a second marriage and having issue of the second bed, in this case, on the death of the father, the son of the first bed would inherit the whole of his mother's estate, with a moiety of his father's estate, while the children of the second bed would inherit the other moiety of the latter estate, but in the event of the first bed dying without issue, the children of the second bed would only inherit the moiety which descended to him of his father's estate, while his mother's estate would revert to his mother's family."

The asterisk against the word " heirs " in the second line refers to a marginal note which runs as follows: Note.-" This is the opinion of Doloswela Dissave of Saffragam, but the chiefs of the Udaratta are unanimously of opinion that the husband is not the heir to the wife's landed paraveni estate, which she inherited from her parents, nor of h