1926 Present: Schneider A .C. J. and Lyall Grant J.

DINGIRIYA v. UKKU AMMA et al

22-D. C. Kurunegala, 9,930

Kandyan law-Properly inherited from mother-Intestate succession thereto.

A Kandyan died intestate leaving property, which he had inherited from his mother who was married in binna. The plaintiff claimed title to the intestate's property on a deed of transfer from the maternal granduncle and the cousin of the deceased, while the defendants relied on a deed of sale from the binna married father.

Held, that the maternal granduncle of the intestate being the lawful heir, the title derived from him prevailed.

APPEAL from a judgment of the District Judge of Kurunegala.

The facts appear from the judgment. 

Appuhamy v. Gamarala 1 considered.

Hayley, for plaintiff, appellant.

Samarakoon, for defendants, respondent.

October 13, 1926. SCHNEIDER A. C. J-

Nanduwa, a Kandyan, inherited two allotments of land from his mother Horatalai who had acquired them by a deed. Horatalai was married in binna to Setuwa. Nanduwa died intestate, and the only persons who might possibly be regarded as his heirs to the lands in question are Setuwa his father, Menika an uncle of his mother, and Puncha the son of another uncle of his mother who is dead. The plaintiff acquired title to the land by purchase from Menika and Puncha, the defendants by purchase from Setuwa. The District fudge upheld the defendants' claim as he thought that the claim if the father Setuwa should be preferred to the "mother's granduncle's son, a very distant relation. " He purported to follow the case of Appuhamy v. Gamarala (supra), but it seems to me that he has misapprehended that decision. It was there held that the law as aid down by Sawyer should be accepted, with the limitation to be found in Armour, and that the claim of the binna married father if the propositus was to be preferred to the claim of the grandson of a. sister of the great great-grandfather, the preference being given to the husband as the relations on the mother's side here " distant ". I agreed with the judgment in that case, but in further consideration I am doubtful whether the statement of

1 Times of Ceylon L. R. 147 (1925); (1925) 21 N. L. R. 361.

law by Armour should be regarded as limiting the law as stated by Sawer. However, it was held in that case that the law as stated by Sawer should be followed. According to Sawer, the maternal uncles, and failing them, the next of kin on the mother's side, are the heirs. Menika being a maternal granduncle is, in my opinion, entitled to preference to Setuwa the binna married father. I do not think that Puncha succeeds as an heir together with Menika, that is, according to the application of the general principles of the law of inheritance. No authority was cited to us to show that he is entitled to so succeed. Even if the law as stated by Armour be regarded as limiting the law as stated by Sawer, neither Menika nor Puncha would be excluded by the binna married father. Both of them would succeed as next of kin on the mother's side who are not " distant." The instance of a distant relation given by Armour is "mother's granduncle's son." Puncha is the son of the mother's uncle not granduncle. Armour clearly intended to say that any relations nearer in degree than a mother's grand-uncle's son were not to be regarded as " distant " relations. Whether Menika and Puncha be regarded as joint heirs, or Menika as the sole heir, the plaintiff is entitled to succeed inasmuch as his purchase includes all the right, title, and interest of his vendors in the lands in claim.

The learned District Judge's decree must therefore, be set aside, and the plaintiff be declared entitled to the two allotments of land described in his plaint. He will have Ids costs in the District Court, and also of this appeal.

It was agreed at the argument of the appeal that from the land No. 1 in the pla