Present: Schneider J. and Jayewardene A.J.

APPUHAMY v. GAMARALA.

 78-D. C. Kurunegala, 9,606.

    Kandyan law-Rights of inheritance-Contest between binna father and binna daughter of propositus.

Where under the Kandyan law, a woman, the issue of a binna marriage, died intestate leaving her surviving her father, and her binna husband who was the great great-grandson of a great-granduncle of the deceased.

Held, that the father was the heir to her estate.

The rule stated in Sawers, that the father is not the heir of the property of his children born in a binna marriage, which they have acquired through their mother-but that the maternal uncles or next of kin on the mother's side are the heirs to such property-should be read with the limitation laid down in Armour that the father's right is not lost, where there are only distant maternal relatives, and the child remained under the father's care after the mother's death.

Ran Menika v. Mudalihamy1[1 (1013) 16 N. L. R. 131.] referred to.

THE plaintiff in this action sued for a declaration of title to three lands. The lands originally belonged to one Kapuruhamy from whom they were inherited by his two children Gallerala and Tikiri Etana, and thence through various persons they ultimately devolved on Ran Menika, who died intestate and issueless. The plaintiff who was the binna husband of Ran Menika claimed title also as the great-grandson of Tikiri Etana. The defendant is the binna married father of Ran Menika. He also claims title on a transfer from one Menika Etana, the widow of Guruhamy. who was a son of Gallerala.

The learned District Judge held in favour of the plaintiff, and the defendant appealed.

Drieberg. K.C. (with him Amarasekera), for defendant, appellant.- Plaintiff claims by virtue of the failure of descendants of Ran Menika. It is no doubt a well established rule in Kandyan law that where there is failure the property reverts to the source whence it came. But this rule has a limitation, viz., that it is limited to three generations Ranhamy v. Pinhamy.2[ 2- 1 S.C. C. 3.]

Menik Etana, the wife of Guruhamy, the son and heir of Gallerala, being alive still would stop any further ascent. The defendant has a deed from Menik Etana, No. 122 dated July 14, 1922. He has therefore superior title.

 [SCHNEIDER J.-Menik Etana is entitled to be in possession.]

Yes, she is the point at which the ascent stops (Pereira' v. Armour, p. 48, and Modder, p. 666).

[JAYEWARDENE A.J.-Where the three generations fail it goes to the widower.]
But in this it is a binna widower.

[JAYEWARDENE A.J.-But you are claiming for a binna father.;

Yes, but the incident of binna does not touch him on the question of inheritance from a daughter, but only if it is from his wife. (Marshall's Judgments, pp. 348 and 349, Pereira's Armour, p. 77.) Binna husband has no claim.

[JAYEWARDENE A.J.-It is not the husband preferred to the father ?] One cannot apply analogy. Binna incident is peculiar to Kandyan law. So that defendant has clearly superior title whether viewed as binna father of Ran Menika or as transferee of Menik Etana, who clearly had title at the date of her transfer. Hayley, for respondent.-Claim by father cannot be maintained where property comes through the mother. (Ran Menika v. Mudalihamy (supra), Appuhamy v. Tikiri Menika.1[1 (1913) 17 N. L. R 1.]) The passage at page 77 in Pereira's Armour cited by the appellant is subject to the proviso : " If the child had been under the father's care." There is no evidence here that Ran Menika was under the care of her father. On the contrary she was given up and married.
 

That being so, the only question is who are the next of kin, and in deciding this, the husband is to be preferred to the father, Bandi Etana v. Herat Hamy2[ 2 (1915)1 C. W. R. 29.] The next of kin are the next of kin through whom the property came, and in a case such as this where the direct line is broke