1936   Present: Dalton S.P.J., Akbar and Poyser JJ.

VANDERSTRAATEN v. EATON.

 67-D. C. (Inty.) Kandy, 5,127.

Inheritance-Uncles and aunts-Includes those of half blood-Matrimonial Rights and Inheritance Ordinance, No. 15 of 1876, s. 35.

The expression " uncles and aunts" occurring in section 35 of the Matrimonial Eights and Inheritance Ordinance includes uncles and aunts of the half blood.

CASE referred to a Bench of three Judges on a construction of section 35 of the Matrimonial Rights and Inheritance Ordinance. The question arose on the administration of the estate of the late Eva Eaton, who died unmarried, intestate and without issue. The point for determination was whether the words " uncles and aunts " in the section mean uncles and aunts of the full blood only or whether they include uncles and aunts of the half blood.

H. E. Garvin (with him Ameresinghe and Mackenzie Pereira), for appellant.-Some of the respondents are the descendants of the paternal grand-father of the deceased by a second marriage. By a third marriage, there is also a child of the paternal grandfather of the deceased, who is a step aunt. We say that the respondents of both categories do not succeed. The learned Judge is wrong in holding that the respondents are entitled to succeed. The question of heirship must be regulated by the provisions of Ordinance No. 15 of 1876. The Common law does not apply, the legislature has not adopted the Common law so far as this particular point is concerned; no doubt in the case of an omission one is entitled to look into the Roman-Dutch law, but this is not a case of omission. Here there is a deliberate departure from the Common law. Prior to the Ordinance No. 15 of 1876, the rules of intestate succession as obtaining in North Holland as laid down in the Placaat of 1599 (vide Vanderstraten's Appendix, page 17 at 20), obtained in Ceylon. Ordinance No. 15 of 1876 adopted some of the provisions, and disregarded others. In section 35, provision is made for children of the half blood, uncles and aunts are provided for, no provision for uncles and aunts of the half blood. Section 35 clearly shows that the legislature changed the Common law and omitted uncles

and aunts of the half blood from participating. Uncles and aunts referred to in the section can only mean the brothers and sisters of the parents. They cannot include half uncles and half aunts.

H. V. Perera (with him Van Geyzel), for respondents.-One cannot disregard the source from which the legislature has taken the provisions. The law of North Holland drew no distinction between the full and half blood; for the purposes of inheritance, these were treated alike. Very strong reasons must be urged in order to justify a departure of the underlying principle, an uncle is an uncle whether an uncle or a step uncle. One cannot treat the two differently. In principle the law of North Holland differed from the law of South Holland. According to the South Holland law, the devolution of property was based on the principle that the property should go back to the source from whence it came, the half blood always taking with the half hand-vide Grotius II., 28, 6; Lee's Roman-Dutch Law, p. 359.

Section 35, uncles and aunts failing, provides the inheritance for their children, also great uncles and aunts to be with them per capita. This further supports the view that uncles and aunts include those of the half blood.

February 12, 1936. DALTON S.P.J.-

This appeal, which has been referred to a Bench of three Judges, raises a question of construction of section 35 of the Matrimonial Rights and Inheritance Ordinance, No. 15 of 1876. The question has not been an easy one to answer, but the argument of counsel has been of great assistance to the Court. In the reference to this Court we are asked to say whether the expression " uncles and aunts ", where it occurs in section 35, includes uncles and aunts of