1948     Present : Jayetileke and Dias JJ.

UKKU, Appellant, and HORATHALA, Respondent

S. C. 244-D. C. Matale, L 65

Kandyan Law-Acquired property-Right of succession-Illegitimate half brothers and sisters-Ordinance No. 39 of 1938, Sections 16 and 17.

The words " brother " and " sister " in section 16 and 17 of the Kandyan Law Ordinance, No. 39 of 1938, connote a legitimate brother or sister of the full or the half blood. Neither under these sections nor under the customary law of the Kandyans can an illegitimate child inherit from a collateral source.

APPEAL from a judgment of the District Judge, Matale.

C. R. Gunaratne, for plaintiffs appellants.

B. Aluwihare, with T. B. Dissanayake, for defendant respondent.

December 17, 1948. DIAS J.-

The parties to this action are Kandyans and are governed by the Kandyan Law.

Wewekumbure Daranda Kumbura was the acquired property of a man named Kaluduraya under deed P 2 of 1864. He died leaving seven children including two daughters, Subadie and Kumudu. Subadie, who is alleged to have died previous to September 27, 1909 (the relevancy of this date will become manifest presently), was married in diga to Banduwa (now deceased) and they had a daughter Somadari. Kumudu, the daughter of Kaluduraya, was married in binna, and she died leaving the defendant and six other children or the issue of deceased children. They are not parties to this action.

It is admitted that after the death of her lawfully married husband Banduwa, Subadi (mother of Somadari) formed an irregular union with a man named Mohotha, and bore to him the first to the third plaintiffs and Kiriduraya who is dead, who is represented in this action by his widow the eighth plaintiff and his children, the fourth to the seventh and ninth plaintiffs. These parties being Kandyans and the union between Subadi and Mohotha not having been registered under the Kandyan Marriage Registration Ordinance, it follows that the plaintiffs are the illegitimate children of Subadi both under the customary Kandyan Law as well as under section 14 of the Kandyan Declaration and Amendment Ordinance, No. 39 of 1938 1[Legislative Enactments (1941) Supplement pp. 25-35.].

Kaluduraya, the maternal grandfather of Somadari, by deed P 1 dated September 27, 1909 (i.e., after the death of his daughter Subadi as stated earlier), donated the field to his granddaughter Somadari, who died intestate after Ordinance No. 89 of 1938 became law, leaving surviving her, her maternal uncles and aunts (if any), her first cousins including the defendant, his brothers and sisters and the issue of his deceased brothers and sisters. There also probably exist the descendants of the other brothers and sisters of Subadi and Kumudu. There are also the illegitimate issue of Somadari's mother Subadi, namely, the plaintiffs. Neither parent of Somadari survived her. The main question is whether these "illegitimate half brothers and sisters" and their descendants are the sole intestate heirs of Somadari?

As Somadari died after the commencement of Ordinance No. 39 of 1938, her property would devolve under the Ordinance prov