Ukku Banda Et Al V. Ukku Banda

1946 Present: Keuneman S.P.J. and Canekeratne J.

UKKU BANDA et al., Appellants, and UKKU BANDA,

Respondent.

4-D. C. (Inty) Kegalla, 3,008.

Kandyan law-Inheritance-Death of married woman-Succession to acquired property-Equal rights of brothers and sisters.

Where a Kandyan married woman died intestate and issueless leaving a brother and two sisters, and her father, mother and husband had predeceased her-

Held, that her acquired property passed to her brother and sisters equally.

APPEAL from a judgment of the District Judge of Kegalla.

The question for decision was whether when a Kandyan married woman dies intestate and issueless, her father, mother and sister having predeceased her, her acquired property passes to her brothers only or to her brothers and sisters equally.

H. V. Perera, K. C. (with him E. A. P. Wijeyeratne), for the third and fourth defendants, appellants-The question for decision in whether when a Kandyan woman dies intestate leaving a brother and sisters of the whole blood they all succeed equally to her acquired property or whether the brother excludes the sisters. The latter view was taken by the trial Judge who purported to follow the case of Menikhamy v. Suddana1.[1(1926) 28 N. L. R. 266.] But that case dealt only with succession to a male; whereas in this case the question is one of succession to female. This case would be governed by Sawer p. 17; although this passage occurs in the chapter on movables, it appears from a note made by Sawer himself lower down that the same rules applied to landed property. In case of Menikhamy v. Suddana (supra) Maartensz A. J., after quoting Sawer 13 and 17, expressly states (at p. 271): ?The important difference is that sisters inherit equally with brothers?.

[KEUNEMAN S.P.J.-Sawer 17 appears to deal with the case of an unmarried woman dying intestate. In this case the deceased was married.]

Sawer was dealing with a specific case. But there is no difference in principle. The rule of succession is the same, subject to any claim a diga married widower may have. See Kandyan Law Commission Report (Sessional Paper XXIV. of 1935, p.30, paras 238-243).

N.Nadarajah, K.C. (with him N. E. Weerasooria, K.C. and E. S. Amerasinghe), for the plaintiff, respondent.- In this case the two sisters of the deceased intestate, under whom the appellants claim, had been given out in diga. They thereby forfeited their right, in favour of their brother, to succeed to any share of their sister?s estate.

Sawer P. 13 sets out generally the rule of succession both to a male and a female. Sawer 17 relates to movable and deals with the estate of an unmarried woman only. And in this passage there is a parenthetical clause which provides that ?if there be but one such brother the whole goes to him, if there are several brothers they shall share equally?. Counsel cited Mudalihami v. Bandirala1;[1(1898) 3 N. L. R. 209.]  Dullewe v. Dullewe2;[2(1911) 5 Leader L. R. 39.] Dingiri Menika v. Appuhamy3.[ 3(1900) 6 N. L. R. 133.]

H. V. Perera, K. C., in reply-Whether the sisters were married in binna or in diga does not affect the question.

Cur . adv. vult

October 31, 1946. KEUNEMAN S.P.J-

The only matter argued in this appeal relates to a question of inheritance under the Kandyan law. K. M. Kirihamy, Vel Vidane, the original owner of the premises with which we are concerned, gifted the premises by P2 of 1872 to his wife Ukku Menika, his daughter Punchi Menika who was married in binna, and his son Appuhamy. Kirihamy had two other daughters, Dingiri Menika and Ran Menika, who were married in diga and dowried. Punchi Menika died issueless, and the matter for our decision in whether the one-third share which she obtained under deed P2 passed to her brother Appuhamy alone or to Appuhamy and the two sisters Dingiri Menika and Ran Menika.

The district Judge decided that Appuhamy alone inherited this share, and the thi

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