1961 Present : T. S. Fernando, J., and De Silva, J.

M. SUBANCHINA, Appellant, and M. K. JAMES APPU and others,
Respondents

S. C. 135 (Inty.) of 1959-D. G. Ratnapura (Testy.), 1354

Kandyan law-Adoption-Difference in caste between the adopter and the person adopted-Acquired property-Inheritance when adopter dies-Kandyan Law Declaration and Amendment Ordinance, s. 7.

Under the Kandyan law, persons of one caste adopted by a Kandyan of another caste who dies intestate and issueless can inherit the acquired property of the latter.

APPEAL from a judgment of the District Court, Ratnapura.

               H. W. Jayewardene, Q.C., with A. C. Gooneratne, N. R. M. Daluwatte and S. S. Basnayake, for the petitioner-appellant.

             E. B. Wikramanayake, Q.C., with E. B. S. B. Coomaraswamy, for the 5th to 7th respondents.

Cur. adv. vult.

December 21, 1961. T. S. FERNANDO, J.-

        The question that arises for decision on this appeal is whether persons of one caste adopted by a Kandyan of another caste who dies intestate and issueless can inherit the acquired property of the latter.

           One Maddumage Simion Singho, a person subject to the Kandyan law died intestate on 10th July 1955, and the petitioner who, it is admitted, had lived with the deceased as his mistress for a number of years was granted letters of administration in respect of his estate. In the course of the judicial settlement of that estate a contest arose as to who his intestate heirs were. On one side were the 1st, 2nd and 3rd respondents, three persons who alleged they had been adopted by him and by his mistress Subanchina (the petitioner), while on the other side were ranged the 5th, 6th and 7th respondents who are the illegitimate sons of one Lamaetana, a sister of the deceased. The District Judge, after a keenly fought contest in the District Court, reached the conclusion that the claims of the illegitimate children of the sister of the deceased had to prevail under the Kandyan law over the claims of persons who had in fact been adopted by the deceased as his children but were not of the same "aste as himself. The learned judge observes that he reached this conclusion regretfully as he was satisfied that there was overwhelming evidence, both oral and documentary, to show that it was the intention of the deceased to adopt the 1st, 2nd and 3rd respondents as his children for the

purpose of inheriting his property. The administratrix has appealed against the decision given in the District Court and, in support of the appeal, three points were raised by Mr. Jayewardene :-

             ( 1) That distinctions of caste can no longer be recognised by the courts of this country ;

            (2) That even if it is a requirement of a valid adoption that the adopted and the adopter shall be of the same or equal caste, the concept of caste is now so vague and indefinite that the courts should regard it as no longer a condition of a valid adoption ;

           (3) That in any event a difference in caste between that of the adopter and the adopted affects only the succession to the inherited property of the adopter and not to his acquired property.

         It was not disputed in the court below that the 1st and 2nd respondents who were born hi 1931 and 1933 respectively had been brought up in the household of the deceased and of Subanchina from their very tender years and certainly from a date anterior to 1st January 1939, while the 3rd respondent who had been brought up similarly was born only in 1950. By section 7 of the Kandyan Law Declaration and Amendment Ordinance No. 39 of 1938, which came into force on 1st January 1939, no adoption is valid hi law to create any right in the adopted person unless the adoption is evidenced by an instrument in writing and signed by both the adopter and the adopted in the presence either of specified officers or a notary and witnesses. In the abs