1926 Present: Garvin and Lyall Grant JJ.

KALU BANDA v. MUDIANSE.

124-D. C. Kandy, 32,602.

Kandyan late-Gift of inherited property-Partition decree-Acquired property-Inheritance.

Where a Kandyan, who was vested with title to property by inheritance, donated it and was subsequently declared entitled to such property in terms of a partition decree,-

Held (on a question of inheritance arising among the heirs) that such property was acquired property.

THIS was an action for declaration of title to a land which belonged to one Sirimala by paternal inheritance. By a deed dated November 3, 1906, he gifted a specific portion of the land to his illegitimate son Sarana, who conveyed his interests by a deed dated October 27, 1919, to one Punchi Ukku, from whom the defendant acquired them upon a deed of October 6, 1924. Before Sarana parted with his interest a partition action affecting the whole land was instituted, to which Sirimala was made a defendant. By the final decree entered on July 4, 1913, Sirimala was declared entitled to the portion of land. Sirimala died in 1919, leaving him surviving his illegitimate son Sarana, a brother, and two nieces. By deed dated January 22, 1925, Sirimala's brother and the two nieces sold the premises to the plaintiffs. The District Judge held that by virtue of the decree passed in the partition action Sirimala was vested with title in the land, and that on his death it devolved on his brother and nieces, to the exclusion of his illegitimate son.

H. V. Perera, for defendant, appellant.

Hayley, for plaintiff, respondent.

December 9, 1926. GARVIN  J.-

The facts material to this appeal are these. One Sirimala was by paternal inheritance entitled to an undivided one-third share of a land called Herassagalehena. By a deed dated November 3, 1906, he gifted to his illegitimate son Sarana a specific portion of this land and various interests in several other lands. Sarana conveyed his interests in the specific portion of this land by a deed of October 27, 1919, to one Punchi Ukku, from whom the defendant acquired it upon a deed of October 6, 1924. Before Sarana parted with his interest in this land a partition action affecting the whole land was

instituted and Sirimala was made defendant to the action. He filed an answer consenting to the partition, and claimed that a  specific portion, the very portion which was the subject of the gift to Sarana, had been planted, possessed, and improved by him, and should at the partition be allotted to him. A decree for partition was entered, and by the final decree entered in the case Sirimala was declared entitled to the portion claimed by him. In the result he acquired to the subject-matter of this action a title under this final decree which was entered on July 4, 1918. Sirimala died early in 1919, leaving him surviving his illegitimate son Sarana, a brother, and two nieces. By deed P 3 of January 22, 1925, Sirimala's brother and his two nieces conveyed the premises to the plaintiff, claiming to have acquired title thereto by right of inheritance. The learned District Judge held that by reason of the final decree entered in the partition case Sirimala was vested with title in these premises, and that on his death they passed under the Kandyan law of inheritance to his brother and nieces to the exclusion of his illegitimate son. It was, however, contended on behalf of the appellants that the premises were not inherited property of Sirimala but acquired property, and as such passed to his illegitimate child. It was not disputed that if this is to be deemed the acquired property of Sirimala that Sarana, his illegitimate son, would be entitled the to in the absence of legitimate issue. The foundation of the argument is that inasmuch as Sirimala had by a deed of gift divested himself of the title to the premises and thereafter acquired a title to it by the decree which was obtained by co