Natchiappa Chettiar V. Pesonahamy

1937   Present : Hearne J. and Fernando A.J.

NATCHIAPPA CHETTIAR v. PESONAHAMY.

279-D. C. Kegalla, 10,784.

Kandyan law-Marriage of low-country Sinhalese with Kandyan woman in binna-Issue subject to Kandyan law-Death of issue intestate-Parent's right of inheritance-Ordinances Nos. 3 of 1870 and 14 of 1907-Ordi-nance, No. 23 of 1917, ss. 2 and 4.

Where a low-country Sinhalese was married in binna to a Kandyan woman and the marriage was registered under the Marriage Registration Ordinance, No. 19 of 1907,-

Held, that under section 2 of Ordinance No. 23 of 1917, the issue of such marriage was subject to Kandyan law and that the mother succeeded to the property of such intestate issue to the exclusion of the father.

Held further, that sub-section (2) of section 4 of Ordinance No. 23 of 1917 does not require that a marriage which was to have the effect provided for in section 2 should be registered under Ordinance No. 3 of 1870.

The statement of objects and reasons published with a draft Ordinance may be considered in construing the Ordinance.

THIS was an action instituted by the plaintiff to have it declared that one-eighth share of the land in dispute was liable to be seized and sold in execution of a decree against one Podisingho, a low-country Sinhalese man who was married to the defendant, a Kandyan woman.

The defendant and her son Podiappu purchased a half share of the land. Podiappu died unmarried and leaving no issue. The question was whether his share devolved on his mother alone according to the Kandyan law or on his father and mother according to the Roman-Dutch law.

The learned District Judge held that the defendant's marriage with Podisingho was a binna marriage and that Podiappu was subject to the Kandyan law.

C. Nagalingam, for plaintiff, appellant.-The question here resolves into what the issue is deemed to be in a case where a low-country Sinhalese man marries a Kandyan woman. If the issue is held to be non-Kandyan, his property would on his death intestate devolve upon his father and mother ; but if Kandyan, would according to Kandyan law devolve on his mother only to the exclusion of the father.

Vide Punchihamy v. Punchihamy[1 (1915) 1 C. W. R. 35.] where Wood Renton C.J. remarked that the whole question was in a nebulous state. The legislature then steps in and Ordinance No. 23 of 1917 is passed to declare the law applicable to the issue of marriages.

Section 4 (2)' of this Ordinance has to be read with section 2. The question as to binna or diga marriage has to be determined at the date of the marriage. The law does not contemplate the difference between a diga and a binna marriage, where the marriage is registered under Ordinance No. 19 of 1907.

Section 2 (b) conserves the rights even of those married under the Ordinance of 1907. In the case of those who could have married under

the Ordinance of 1870, but who nevertheless got married under the Ordinance of 1907, their rights have vanished. Section 2 (b) (ii.) defines the rights of the parents and not of the issue.

Here the property is not inherited by the child, but purchased in the child's name. The section does not provide for cases where property is oderived from the issue of a party.

If section 2 does not apply, the son is not a Kandyan. Would Ordinance No. 3 of 1870 have enabled a non-Kandyan to get married under Kandyan law ? Vide Sophia Hamine v. Appuhamy [1 (1922) 23 N. L. R. 353 (F. B.) '] where it was held that the Ordinance No. 3 of 1870 was applicable to Kandyans and not to low-country Sinhalese resident in the Kandyan provinces.

The District Judge, instead of framing, an issue as to whether the son was a Kandyan or not, asks the question : Is the defendant subject to Kandyan law or not ?

The term ''binna marriage''' applies where both parties are Kandyans. (Vide section 3 (2) (a) of 14 1909 re the presumptions created by the Ordinance.)

Section 4

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