1926 Present: Dalton J. and Maartensz A .J.

MENIKHAMY v. SUDDANA et al..

 238-D. C. Kurunegdla, 9,696.

Kandyan law-Acquired property-Inheritance-Preferential right of brothers over sisters.

Where a Kandyan died without issue leaving him surviving two brothers and two sisters.

Held, that the brothers were entitled to his acquired property to the exclusion of the sisters.

Dullewe v. Dullewe et al.1 followed.

ACTION for declaration of title to 7/16th share of a land called Kudapelessahena, the original owner of which was one Dingira, who died leaving him surviving two sisters Saru and Tikirathi, and two brothers Suddana, 1st defendant, and Kira. By

1 5 Leader L. R. 39.

purchase the plaintiff became entitled to 7/16th of the half share of the two sisters. The 2nd defendant acquired the interest of the brother Kira. The defendants contended that the property, being acquired property, was inherited by the brothers to the exclusion of the sisters. The learned District Judge dismissed the plaintiff's action

H. V. Perera for plaintiffs, appellant.

Weerasooriya, for defendant, respondent.

December 17, 1926. DALTON J.-

This appeal raises an interesting question as to succession under Kandyan law.

The plaintiff sought to obtain a declaration of title to an undivided 7/16th share of a land called Kudapelessahena. The parties are agreed that one Wattuwa Dingira was the original owner, the dispute being as to what is the law of succession applicable in the following circumstances. Dingira died leaving surviving him his two sisters Saru and Tikirathi, and Suddana and Kira two brothers. The case for the plaintiff is that these four were his heirs, and as such entitled to a l/4th share of the land each. By purchase the plaintiff became entitled to 7/16th of the half share of the two sisters, by deed No. 82,513 of September 19, 1922. The brother Suddana if) the 1st defendant, and Kira the 2nd defendant, obtained by purchase the interest of the second brother Kira. The defendants, however, say that the two sisters inherited nothing of their deceased brother's estate, the whole being divided between the two surviving brothers Suddana and Kira. It is admitted that the property is acquired property, but the parties are not agreed as to whether Saru and Tikirathi were married in binna, or in diga  plaintiff says they were both married in binna, but defendants deny this. Should it have been necessary to have this decided to come to a decision in the matter, the case must have gone back for evidence and a finding on the point. No evidence at all was led in the case, the question of law to be answered by the trial Judge being set out as follows: -

" Did the 1st defendant and his brother Kira become solely entitled to the land, or did they and their two sisters become entitled to a quarter share each? "

The learned Judge held that this question was answered in favour of the defendants by the decision of this Court in Loku Banda Dullewe v. David Walter Dullewe and others (supra), which decision was binding upon him. He therefore dismissed plaintiff's action. Plaintiff now appeals to this Court. For the appellant Mr. Perera

has argued that, so far as any previous case in this Court cannot be distinguished from this case, the decision has proceeded upon, a misapprehension of the Kandyan Law of Succession as set out by Sawers and Armour.

In the case followed by the learned trial Judge it was held that where a Kandyan died, without issue, leaving surviving him two brothers and two sisters, the sisters were not heirs to the acquired property of the deceased. There is no reference in the judgment as to the kind of marriage the sisters had contracted or whether they were married at all. The Court seems to have regarded that point as immaterial. They purported to follow an earlier decision Dingiri Menika v. Appuhamy 1 where it was held, but so far as Lawrie J. was concerne