1923.   Present: Schneider J. and Jayewardene A.J.

MENIKA v. MENIKA et al.

 356-D. C. Kurunegala, 8,677.

Kandyan law-Right of illegitimate children to inherit from their mother- . Action to partition twenty-seven lands-Plaint allotting shares to one defendant only in seven lands-Misjoinder of parties and causes of action-Deed of gift-Acceptance.

The illegitimate offspring of parents of the same social status succeed to the inherited or paraveni property of the mother.

In a partition action the plaintiff sought to partition twenty-seven lands, but allotted to second defendant a share in only seven of them.

Held, that there was a misjoinder of causes of action and of parties.

THE facts are set out in the judgment.

Joseph, for the appellant.

Soertsz, for the defendant.

Cur. adv. vult.

 May 31, 1923. SCHNEIDER. J.-

In this action the plaintiff claimed an undivided one-fifth share of the lands numbered 21 to 27 in the schedule attached to the plaint. She set out title to them in the following manner: She stated that they belonged to Punchi Menika, who died leaving five children by her husband, Bandirala, viz., the first, second, third, and fourth defendants, and one Vaithala Menika. She claimed Vaithala Menika's one-fifth share as the daughter of Vaithala Menika. It was admitted that Vaithala Menika, with the approval of her parents, lived as the wife of one Ukku Banda, and that the plaintiff is the child of this union, but that no marriage was registered between them. The cohabitation began about twenty-three years ago. It appears to have been contended on behalf of the plaintiff in the lower Court that she wag a legitimate child, as being the offspring of a union recognized by Kandyan customary law as marriage. The parties are admittedly governed by the Kandyan law. The learned District, Judge held against the plaintiff, and she has appealed. The contention on her behalf in the lower Court was an idle one, in view of the decision in 1920 in Kuma v. Banda[1 (1920) 21 N. L. R. 294.] that such a union was not a valid marriage for want of registration. But counsel for the plaintiff presented her claim in appeal somewhat differently. He conceded that the

Union of the plaintiff's parents was not a legal marriage, and that the plaintiff was accordingly an illegitimate child, but he contended
that the plaintiff was nevertheless the heir to her mother's property of all description. It seems to me that this contention is sound,and should be upheld. It is well-settled law that illegitimate children succeed to the acquired property of their father. For this statement I need refer only to the Full Bench decision in Rankira v. Ukku.[1 (1907) 10 N. L. R. 129] There is also direct authority in the Kandyan law that the illegitimate son of a man by a woman of a lower social status does not succeed to his paraveni property.[2 Armour, chapter III., section 2.] The learned District Judge appears to have thought that the lands in dispute in this case were paraveni property. He is right in so regarding them. For authority I need refer only to Kiri Menika v. Muttu Menika[ 3 (1899) 3 N. L. R. 376.] decided by Lawrie J.-a Judge distinguished for his knowledge of the Kandyan law. But, in view of what I shall be saying later, the question whether the lands in question were paraveni or acquired property does not arise and has no bearing.

The precise point raised by the appeal is covered by authority. Armour in chapter V., in which he deals with the rights of inheritance as between the mother and her children, says : " If a woman died intestate leaving issue a son and a daughter born out of wedlock, and if neither of the children have an acknowledged father, the whole of the mother's estate will devolve in equal shares to the son and the daughter, and that even if the daughter were married and settled in diga.

I would regard this as a clear authority for the proposition t