1943 Present : Howard C.J. and Keuneman J.

ELLEN NONA AND OTHERS,

Appellants and
PUNCHI BANDA, Respondent.

27-D. C. Kandy, 572

kandyan law-Acquired property of Kandyan wife-Contest between illegitimate child and widower-Rights of child.

The property of a Kandyan wife acquired before her marriage is inherited by her illegitimate child and her diga-married husband has neither title nor life-interest in such property.

THIS was a partition action in which the dispute was with regard to a one-fourth share of the land between the plaintiff and the 3rd defendant.

The owner of this one-fourth share was Muttu Menika, who obtained title to it in 1913 and who was unmarried at the time. In 1916 an illegitimate child, Punchi Appuhamy, was born to her. The plaintiff claimed the whole of Muttu Menika's share by purchase from Punchi Appuhamy. In 1918 Muttu Menika married the 3rd defendant in diga. Muttu Menika died in 1920 leaving no issue by the 3rd defendant.

The learned District Judge, held in favour of the plaintiff.

L. A. Rajapakse, for the 3rd defendant, appellant.-It is the widower who should succeed to the property in question. The District Judge has purported to follow Seneviratne v. Halangoda et al[1 (1922) 24 N. L. R. 257.]. That case, however, can be, and has been, distinguished in Dunuweera v. Muttuwa et al.[2 (1942) 43 N. L. R. 512.] where all the authorities are reviewed. See also Seneviratne v. Halangoda et al.[3 (1921) 22 N. L. R. 472.] and Ausadahami v. Tikiri Etana.[4 (1901) 5 N. L. R. 177.] Even if the illegitimate child can succeed, the widower is at least entitled to the life-interest. It makes no difference whether the property was acquired by the wife before coverture or during coverture. Dunuweera v. Muttuwa et al. (surpa) is applicable and was apparently not cited at the trial.

N. E. Weerasooria, K. C. (with him H. W. Thambiah), for the plaintiff, respondent-Kandyan law draws no distinction between legitimate and illegitimate children as regards right to the material inheritance-Hayley's Sinhalese Laws and Customs, p. 462.

There is, no doubt, authority for the proposition that a husband surviving his diga-married wife is entitled to a life-interest over the landed property acquired by her during coverture, where the deceased wife had left children. But in the present case (1) there are no children by the marriage, and (2) the property under consideration was acquired before converture. In Seneviratne v. Halangoda et al. (supra) the law applicable to a case similar to the present one is fully discussed. Dunuweera v. Muttuwa et al (supra) can be distinguished because in that case the deceased left no issue. Moreover, certain passages in the judgment in that case are contradictory and are not supported by the authorities which they purport to follow.

L. A. Rajapakse, in reply.-The case of Kalu v. Lami[5 (1905) 11 N. L. R. 222.] was not considered in Seneviratne v. Halangoda et al. (supra). There is no reason for any

distinction between property acquired before coverture and property acquired during coverture. Such a distinction is criticised as quite artificial in Dunuweera v. Muttuwa et al. (supra). See also Rankiri v. Ukku[1 (1907) 10 N. L. R. 129.] and Ranhami v. Menik Etana[2 (1907) 10 N. L. R. 153.].

Cur. adv. vult.

November 12, 1943. KEUNEMAN J.-

This is a partition action. The title to one-fourth share of this land is in dispute between the plaintiff and the 3rd defendant.

The owner of this one-fourth share was Muttu Menika, who obtained title under P 2 of 1913. Muttu Menika was at the time unmarried. In 1916 (see X 1) an illegitimate child, Punchi Appuhamy, was born to her. The plaintiff claims the whole of Muttu Menika's share by virtue of transfer P 3 of 1938 from Punchi Appuhamy to Hendrick Appuhamy, and transfer P 4 of 1940 by the latter to the plaintiff. In 1918 Muttu Menika married the 3rd defendant in