1938 Present: Hearne J. and Wijeyewardene A. J.

APPUHAMY v. PERERA et al.

54-D. C. Colombo, 7,349.

Inheritance-Estate of illegitimate person-Husband sole heir in absence of mother-Other illegitimate brothers and sisters not entitled to succeed-Ordinance No. 15 of 1876, ss. 30, 36, 37.

Where an intestate, a person of illegitimate birth, dies leaving surviving her, her husband and other illegitimate children of her mother.

Held, that the husband was entitled to succeed to the entire estate.

APPEAL from a judgment of the District Judge of Colombo.

One Podihamy had seven illegitimate children, one of whom was Lucia. Lucia married in 1901 and died intestate in 1935 without leaving any descendants. The appellant, as surviving husband of Lucia, claimed the entirety of Lucia's property to the exclusion of the respondents who were either some of the illegitimate children of Podihamy or their descendants. The District Judge held that the husband was entitled

to half of the intestate's property and the respondents to the others half. He was of opinion that The Matrimonial Rights and Inheritance Ordinance, No. 15 of 1876, did not provide for a case like this, which had, therefore, to be decided, under section 40, according to the rules of the Roman-Dutch law as it prevailed in North Holland.

H. V. Perera, K. C. (with him N. E. Weerasooria, K. C., and P. A. Senaratne), for petitioner, appellant. - The point at issue is governed by Ordinance and we need not speculate upon the Roman-Dutch law relating to it. Podihamy had seven illegitimate children, one of whom was the deceased Lucia, who died intestate. As Lucia died leaving no children, the appellant, her husband, is entitled to the entirety of Lucia's property. It is common ground that he is entitled to a half. As regards the remaining half, it is sufficient to consider the rights of the respondents who are the children of Podihamy, as the fights of the respondents who are the children of any deceased child of Podihamy cannot be greater.

The District Judge has purported to apply Roman-Dutch law, acting under section 40 of Ordinance No. 15 of 1876. The old Roman-Dutch law never recognized the surviving spouse as an heir. He took his share only as a partner of the community. The difference between Roman law and Roman-Dutch law on this point appears in Van Leeuwen, vol. I., bk. 3, ch. 15, art. 7 at p. 417 (1881 ed.). Community of property was, however, abolished by Ordinance No. 15 of 1876. The Ordinance brought in the surviving spouse as an heir and gave him half and, in certain contingencies, the whole of the property. Under the old Roman-Dutch law, illegitimate children inherited from the relatives of the mother. Our Ordinance has not adopted that rule-section 37, the first part of it. By the second part of section 37, relatives are brought in only to prevent an escheat to the Crown. On the contrary, if there is a surviving spouse, the relatives of the mother cannot claim. The position, therefore, is that, where there is a surviving spouse, the second part of section 37 will not operate, and the first part of the section will be applicable unconditionally and conclusively. Sections 26, 28, 29, and 30 have all to be read with section 37. Section 40 will be applicable in the present case, only if there had been no surviving spouse.

Chelliah v. Kadiravelu [1 (1931) 33 N. L. R. 172. ], cited in the District Court, cannot help the respondents. That was a case under the Ordinance relating to Thesawalamai, whereas the present case has to be decided according to Ordinance No. 15 of 1876.

F. A. Hayley, K. C. (with him M. Tiruchelvam), for first and second respondents. - Section 26 of Ordinance No. 15 of 1876 has to be applied to the facts of this case. It definitely says that the surviving spouse shall inherit only a half. To claim the whole, he will have to satisfy the requirements of section