1947 Present: Wijeyewardene S. P. J-

SETUWA, Appellant. and SIRIMALIE Respondent.

S. C. 76-C. R, Matale, 8,939,

Kandyan Law-Kandyan haw Amendment Ordinance, proviso to section (10) (1) -Meaning of " child "-Includes illegitimate child-Paraveni property and acquired property.

The word child in the proviso to section 10 (1) of the Kandyan Law Declaration and Amendment Ordinance means not only a legitimate child but also an illegitimate child.

APPEAL from a judgment of the Commissioner of Requests, Matale.

S. R. Wijayatilake (with him R. S. Wanasundere), for the first defendant, appellant.

No appearance for the plaintiff and the second defendant, respondents.

Cur. adv. vult.

 July 16, 1947. WIJEYEWARDENE S.P.J.-

This is an action for declaration of title to an undivided one-third share of a land. One Puncha was admittedly the original owner of the land by right of purchase under a deed P2. He died intestate leaving his three children-Setuwa, Hapuwa and Nanduwa. Nanduwa died intestate about 1943. The plaintiff filed this action as the next friend of three minors who, she alleged, were the children of Nanduwa. The defendants denied that allegation.

I accept the finding of the Commissioner that Nanduwa was the father of the minors. The oral evidence and the document P1 prove beyond any doubt that the minors were the illegitimate children of Nanduwa.

The Commissioner held, further, that the minors were entitled to Nanduwa's one-third share and gave his reason very briefly as follows: - "This property is the acquired property of Nanduwa, vide P2". The Commissioner appears to have thought that, as the property had been purchased by Nanduwa's father, it should be regarded as the acquired property of Nanduwa, when the Court considers the succession to the estate of Nanduwa. The question, however, does not admit of such an easy solution under the Kandyan Law Declaration and Amendment Ordinance which is applicable to the present case.

Section 10 (1) of the Ordinance enacts that " paraveni property" shall mean inter alia " immovable property to which a deceased person was entitled by succession to any other person who has died intestate ". The property in question would, therefore, be paraveni property for the purposes of this case, unless it comes under the proviso to section 10 (1) which reads : -

" Provided, however, that if the deceased shall not have left him surviving any child or descendant, property which had been the acquired property of the person from whom it passed to the deceased shall be deemed acquired property of the deceased ".

Did Nanduwa die leaving him surviving a " child " within the meaning of the proviso ? The answer depends on the meaning of' "child". Does it mean only a legitimate child or a child, legitimate or illegitimate ?

No doubt, the rule of interpretation is that, in the absence of a contrary intention either expressed or deductible by necessary inference, all provisions respecting " children" contained in any laws or instruments having a legal operation, refer exclusively to legitimate children (vide 17 Hailsham, Para. 1424). But a study of the provisions of the Ordinance shows that the word " child" is used to mean a child, legitimate or illegitimate (vide sections 8, 16, 18, 21 and 23). I shall refer to some of these sections in detail. Section 23 says that " when any person shall die intestate after the commencement of the Ordinance leaving no child - . . . the surviving spouse .... shall succeed to all the movable property of the deceased ". Now if the " child " in this section is construed to mean only a legitimate child, then this section will nullify section 22 which recognizes the right of an illegitimate child to succeed to the movable property of his father, if there is no legitimate child, and to succeed to the movable property of the mother in all cases. Again section 16 provides that, where a person dies lea