Dunuweera V. Muttuwa Et Al.,

1942 Present: Moseley S.P.J. and de Kretser J.

DUNUWEERA v. MUTTUWA et al.

41- D. C. Kandy, 5,229 (Testy.).

Kandyan Law-Diga-married woman-Acquired properly-Right of surviving husband to' inherit-Failure of issue.

Where a Kandyan woman married in diga dies without issue, the surviving husband succeeds to her acquired property in preference to her brothers and sisters.

Seneviratne v. Halangoda (24 N. L. R: 257), distinguished.

APPEAL from an order of the District Judge of Kandy.

One Kuda Ridee, a diga-married Kandyan woman, died issueless in 1935 and her estate IS being administered in this case by the petitioner, her husband. She has also left two brothers and a sister.

When Kuda Ridee was five years old her father had gifted certain lands to her.' He died ,in 1912 and she married in 1922.

The question was, who was entitled to her acquired property. The case was argued on the footing that the lands gifted to her were her acquired property. The learned District Judge held that the respondents were the heirs to Kuda Ridee's acquired property.

N. E. Weerasooria, K.C. (with him S. R. Wijayatilake), for petitioner, appellant.-The question that arises for determination is whether the widower being married indigo succeeds as an heir of his deceased wife to the properties gifted to the deceased by her father before her marriage in preference to his deceased wife's brothers and sister.

Property gifted to a person' is classed among" acquired" property as opposed to paraveni or ancestral property.

Sawers, in his memoranda reproduced by Hayley in his Sinhalese Laws. and Customs, Appendix I, page 12" states categorically and without any qualification that the husband is heir to his wife's landed property which will at his demise go to his heirs. Sawers is here dealing with the case of diga-married spouses and of acquired property. No distinction is drawn between property acquired before marriage and during coverture. In Naide Appu v. Palingurala[(1879) 2.8. C. C. 176.] Dias J. states that the oldest authority bearing upon the point is to be found in Sawers' Digest where Sawers' lays down in general terms that the husband is her to her landed property. He proceeds to say: "On a careful review of all the authorities  upon the subject, I am of opinion that a diga husband is the heir and is entitled to succeed to the acquired property of the deceased wife Cayley C.J., in the same case, says: "It seems quite clear from Armour that a diga husband inherits his wife's acquired' goods' if she dies without issue. What Armour meant by the word' goods' may be doubtful, but I am disposed to think that, in this expression, he intended to include all kinds of property. If not, it is difficult to understand why he has left altogether untouched the important question of the devolution of

land in cases of this kind. In any case, it is difficult to see why a different principle should be applied to the devolution of acquired lands from that which governs the devolution of other description of acquired property". In this case, although the subject-matter of the dispute was property acquired during coverture, it was not a material factor which prompted the decision of the case. The law was laid down generally that a diga husband was his wife's heir to the exclusion of her sisters, so far as relates to her acquired property, whether real or personal. Middleton J., in Appuhamy v. Hudu Banda [ (1903) 7 N. L. R. 242.] at 244, accepts this view as correct when he says: "According to 2 S. C. C., p. 176-7 a diga husband inherits his issueless wife's acquired property" and he too does not seek to differentiate between property acquired before and. after marriage. Sampayo and Pereira JJ .in Tikiri Banda v Appuhamy[18 N. L. R. 105 (F. B.) P 108-110.], discuss the judgment of Cayley C.J. and Dias J., and they too think that the proposition laid down refs to "acquired propert

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