1950 Present : Jayetileke C.J. and Gunasekara J.

ASIRVATHAM, Appellant, and GUNARATNE, Respondent

S. C. 171-D. C. Ratnapura, 7,137

Kandyan Law-Succession-Illegitimate child Right to inherit maternal grandfathers property.

Under the Kandyan law a child who was not born in lawful wedlock is entitled to succeed to the maternal grandfather's property if the child was not the result of an " unauthorised intercourse ".

APPEAL from a judgment of the District Court, Ratnapura,

S. J. V. Chelvanayagam, K.C., with P. Navaratnarajah and Arulambalam, for plaintiff, appellant.

H. W. Jayewardene, with G. T. Samarawickreme and E. D. Atukorale, for defendant, respondent.

Cur. adv. vult.

August 29, 1950. JAYETILEKE C.J.-

The plaintiff instituted this action for a declaration of title to a divided portion of a land called Tippolahena. One Mahabattanarallege Mudianse, a Kandyan, became entitled to the entire land under deed No. 12,619 dated October 9, 1906 (P1). He had children by two beds, to wit, Lokumenika and Heenmenika by the first bed and Kiri Banda, Dingiri Banda, Jotiranga Menika and Hamy Mahatmaya by the second bed.

Under the Kandyan law where a person leaves heirs by two beds his property devolves on them per stirpes. Lokumenika predeceased her father. The plaintiff alleged that Lokumenika left no issue and that Heenmenika became entitled to the half share of Tippolahena that devolved on the heirs of the first bed. The learned District Judge held that Lokumenika lived with a man called Seenikkavidaneralalage Podisingho and had a daughter called Martinahamy alias Podinona and. that Heenmenika was married in deega. There is sufficient evidence to support these findings and we see no reason to disturb them. The main question for our decision is whether Martinahamy, who was' not born in lawful wedlock, inasmuch as her parents were not married according to the Kandyan law, is an heir of Mudianse. If she : is an heir she will be entitled to the moiety that devolved on the heirs by the first bed to the exclusion of Heenmenika who was married in deega. At the argument before us it was agreed that if our decision on the main question is against the appellant the appeal must fail.

Relying on the following passage in Sawer1[Sawer : pages 3 and 4 cited in Marshall 331.] Counsel for the appellant contended that under the Kandyan law an illegitimate child is not entitled to succeed to the maternal grandfather's property :-

(a) A daughter bearing children in the house of her parents without having an acknowledged husband such husband would have a doubtful

or weak claim to any share of their maternal grandfather's property and must depend chiefly upon the goodwill of their uncle or uncles for support and a provision out of the grandfather's estate.

(b) A daughter having unauthorised intercourse with a paramour in her father's house, bearing children such children have no right of inheritance in their maternal grandfather's or grandmother's property but the father being known and the children acknowledged by him they would have a claim of inheritance in his paraveni property provided the paramour were of equal rank and degree with the mother.

The meaning of the expressions " unacknowledged husband " and unauthorised intercourse " in the passages quoted above was considered by de Sampayo J. in the case of Raja v. Elisa1[ 112 C. R. Gampola 613. S. C. Minutes of May 26, 1913.] and in the course of his judgment the learned Judge said :-

"It is argued on behalf of the defendant that the expressions unacknowledged husband ' and ' unauthorised intercourse' mean that unless the parents are legally married the children do not inherit from their grandparents. I think that this contention is not well founded. If what is meant is legal marriage, nothing is easier than to say so and there is no necessity for such labored language as the above. To my mind the reference is