Wimalawathie V. Punchi Banda

1955 Present: Basnayake, A.C.J., and Pulle, J.

WIMALAWATHIE, Appellant, and PUNCHI BANDA,
Respondent

S. C. 449-D. C. (Final) Kegalla, 8,517

Kandyan Law-Diga marriage-Death of wife intestate-Husband's rights in respect of wife's acquired property-Kandyan Law Declaration and Amendment Ordinance, No. 39 of 1938, ss. 15, 18.

The law as laid down in Tikiri Banda v. Appuhamy (1914) 18 N. L. R. 105 that the surviving husband of a diga marriage has a life interest in the acquired property of his deceased wife has not been altered by section 18 of the Kandyan Law Declaration and Amendment Ordinance. The husband's right is unaffected by the fact that there are children by a former marriage of the deceased spouse.

APPEAL front a judgment of the District Court, Kegalla.

C. R. Gunaratne, for the plaintiff-appellant.

H. W. Jayewardene, Q.C., with P. Ranasinghe, for the defendant-respondent.

June 24, 1955. BASNAYAKE, A.C.J.-

The only question for determination in this appeal is whether the husband of a diga married spouse who dies intestate leaving a child by a former marriage has a life interest over the property acquired by the deceased spouse during coverture.

In the instant case, one B. N. Ukku Etana who had married in diga died intestate leaving the plaintiff-appellant, Kottapola Vidanelage Wimalawathie (hereinafter referred to as the appellant), a child by a former marriage; the defendant, her surviving husband ; and four children of her marriage with the defendant.

The appellant claims title to an undivided one-fifth share of a paddy field acquired by her deceased mother during her second marriage, and disputes her step-father's right to a life interest over that share,

Learned counsel on behalf of the appellant argued that the effect of section 18 1 of the Kandyan Law Declaration and Amendment Ordinance, No. 39 of 1938 (hereinafter referred to as the Ordinance), was to wipe out the rights of the surviving husband of a woman married in diga to a life interest over the property acquired by her during coverture. He supported his argument by reference to section 15 2 of that Ordinance wherein it is enacted that the succession of a child to the father's estate is subject to the interests of the surviving spouse. Alternatively he argued that the diga husband's life interest over his deceased spouse's property acquired during coverture does not extend to the shares of a child or children by a former marriage of the deceased spouse.

Although prior to the decision in Tikiri Banda v. Appuhamy 3[(1914) 18 N. L. R. 105.] there was some uncertainty as to a diga married husband's rights over his deceased wife's property acquired during coverture, that case has put an end to that uncertainty by laying down authoritatively the proposition that the surviving husband of a diga marriage has a life interest in the acquired property of his deceased wife even though there are children of the marriage.

We are unable to uphold learned counsel's submission that the law as laid down in that case has been altered by section 18 of the Ordinance. The rule is that statutes are to be construed in reference to the principles

1 Section 18 of the Kandyan Law Declaration and Amendment Ordinance, No. 39 of 1938 :

" 18. (1) When a woman unmarried, or married in diga, or married in binna on her mother's property, shall die intestate after the commencement of this Ordinance leaving children or the descendants of a child or children, the estate of the deceased shall devolve in equal shares upon all such children, (the descendant or descendants of any deceased child being entitled to his or their parent's share by representation) whether male or female, legitimate or illegitimate, married or unmarried and, if married, whether the marriage be in binna or in diga :

Provided that if the deceased was married in binna as aforesaid, an illegitimate child or children shall not be entitled

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