1960 Present : Basnayake, C.J., K. D. de Silva, J., Sansoni, J.,
H. N. G. Fernando, J., and T. S. Fernando, J.

KARUNAWATHIE MENIKE,

Appellant, and EDMUND PERERA,
Respondent

S. C. 541-D. C. Kandy, 5029/P

Kandyan Law-Diga married widower-Death of son unmarried and without issue-"Devol1J,tion of immovable property inherited by him from his mother-Kandyan Law Declaration and Amendment Ordinance, No. 39 of 1938, s. 16.

Held, by SANSONI, J., H. N. G. FERNANDO, J., and T. S. FERNANDO, J. (BASNAYAKE, C.J. and K. D. DE SILVA, J., dissenting): Prior to the date when the Kandyan Law Declaration and Amendment Ordinance No. 39 of 1938 was enacted, when an unmarried Kandyan died intestate and without issue, leaving surviving him his brothers and sisters and his diga married father, any immovable property which the deceased had in erited from his mother devolved absolutely on his father and not on the brothers and sisters subject to a life interest in favour of the father.

APPEAL from a judgment of the District Court, Kandy. This appeal was referred to a Bench of five Judges under section 51 of the Courts Ordinance.

B. S. C. Ratwatte, with D. C. W. Wickremasekera, for Defendant Appellant.

H. W. Jayewardene, Q.C., with M.. Rafeek and C. P. Fernando, for Plaintiff-Respondent.

Cur. adv. vult.

November 11, 1960. BASNAYAKE, C.J.

This appeal was argued before de Silva J. and myself on 7th December 1959. As there are conflicting decisions on the question of Kandyan law arising on this appeal and as some of the decisions are not in harmony with the law as stated by Sawers and D'Oyly and declared by the Kandyan Law Declaration and Amendment Ordinance No. 39 of 1938, under Section 51 of the Courts Ordinance, I made order that this case shall be heard by five Judges of this Court.

The question for decision is whether on the death of a Kandyan un-married and without issue, leaving surviving him his brothers and sisters and his diga married father, his deceased mother's immovable property which she acquired by purchase before her marriage in diga and which he inherited on her death goes absolutely to his father or to the brothers and sisters subject to a life interest in favour of the father.

Learned counsel for the appellant sought to canvass the decisions of this Court which are not consistent with the law as stated by Sawers.

It is common ground that Bandara Menika and Ukku Banda' were husband and wife and were married in diga on 7th August 1899. At the

time of her marriage Bandara Menika was the owner of the land in dispute ,by right of purchase from Tikiri Mudianse on deed P3 of 30th August 1892. On her death it devolved on her five children Muttu Banda (1/5), Kumarihamy (1/5), Kamalawathie (1/5), Ran Banda (1/5) and Karunawathie (1/5) in equal shares. Muttu Banda died on 7th October 1931 unmarried and issueless. On his death Ukku Banda claimed that he "became entitled to his deceased son's share in the property inherited from his mother and sold it to the plaintiff by deed P 6 of 16th May 1932. The plaintiff also purchased the shares of Kumarihamy (1/5) by P 7 of 17th April 1930, Kamalawathie by P8 of 16th January 1933, Ran Banda byP9 of 12th January 1935 and Karunawathie by PIO of 12th August 1940. By deed Dl of 13th August 1942 the plaintiff transferred to the defendant the 1/5 share purchased on PI0 from Karunawathie Menika. The defendant disputes Ukku Banda's right to inherit the maternal property of his son and asserts that Muttu Banda's (1/5) share devolved on his brother and sisters.

In the instant case the learned District Judge has held that the father inherits the property absolutely on the authority of the case of Appuhamy v. Silva [1 (1955) 56 N. L. R. 247. ]. In that case Gratiaen J. held that the father succeeded absolutely on the footing that the decision in Chelliah v. Kuttapitiya Tea and 'Rubber Co. Ltd. [2 (1932) 34 N. L. R. 89]