Back
AUSADAHAMY et al. v. TIKIRI BANDA
NLR52V314
1950 Present .Nagalingam
J. and Pulle J.
AUSADAHAMY et al, Appellants, and TIKIRI BANDA,
Respondent
S. C. 234-D. C. Kurunegala, 5,155
Kandyan Law Declaration and
Amendment Ordinance, No. 39 of 1938-Inheritance -Rights of childless Kandyan
widow to life interest in. acquired property of deceased husband-Meaning of
"acquired property"-Retrospective effect of Ordinance-Sections 10, 11, 26.
M gifted certain immovable property to his son U in 1908. U gifted it in 1917
to his son P. P, who was a Kandyan, died in 1943, intestate and issueless
leaving him surviving his widow, his brother and another.
Held, that the property in the
hands of P was " acquired property " and that on his death his widow became
entitled to a life interest over it.
Per NAGALINGAM J-" I am therefore of opinion that the term ' acquired property '
as used in the proviso to sub-section (1) (of section 10 of the Kandyan Law
Declaration and Amendment Ordinance) has not the same meaning as that term has
in sub-section (3) and that clauses (b) and (c) of Sub-section (1) are not
retrospective in their operation. The term " acquired property " in the proviso
must be determined having regard not to the provisions of the Ordinance or in
particular to section 10, but having regard to what the law was at the date the
property became vested in the person from whom it passed to the propositus."
APPEAL
from a judgment of the District Court, Kurunegala.
E. B. Wikramanayake, K.C., with C. Seneviratne and H. Wanigatunga, for the
defendants appellants.
C. R. Guneratne, with T. B. Dissanayake, for the plaintiff respondent.
Cur. adv. vult.
November 15, 1950. NAGALINGAM
J.-
The rights of a childless Kandyan widow arise for determination on this appeal.
Punchi Banda, admittedly a Kandyan, died on December 16, 1943, leaving him
surviving his widow Ran Menika, his brother Ausadahamy the 1st defendant and one
Dingiri Menika the 2nd defendant. By indenture of lease P 3 of 1947 the widow
executed a lease demising certain lands which were owned by her deceased husband
to the plaintiff. The defendants dispute the right of the plaintiff to enter
into possession of three of the lands demised. Punchi Banda became owner of the
lands in dispute under a deed of gift P 2 of 1917 executed by his father
Ukkuhamy. Ukkuhamy himself had obtained a gift of the lands under deed P 1 of
1908 from his father Menik Hamy.
The question that arises for determination on these facts is whether the widow
Ran Menika has a life-interest over the disputed lands and no greater interests
are claimed on her behalf; for if she has, then the lease P 3 would be good for
the full term of the demise provided she survives the term. Punchi Banda having
died after the coming into operation of the Kandyan Law Declaration and
Amendment Ordinance, No. 39 of 1938, the claim of the widow would fall under
section 11 of the Ordinance which vests on her an estate for life in the
acquired property of her husband. The problem then narrows itself down to an
ascertainment of whether the lands in dispute are " acquired property " within
the meaning of section 11 of the Ordinance.
The connotation of the term "acquired property" is indicated in section 10 of
the Ordinance but no attempt has been made to define it directly or
affirmatively. Sub-section 3 of the section enacts:
" Except as in this section provided all property of a deceased person shall be
deemed to be acquired property. "
The task, then, is to determine
what it is that the section excepts. The section, first of all, defines the
opposite of " acquired property ", namely, Paraveni property. Sub-section 1 of
the section demonstrates that the character of Paraveni that is superimposed on
property is dependent entirely upon the manner or mode in which a person becomes
entitled to it, and it indicates three different modes by which a person
becoming the owner of property would throw
