Yaso Menika V. Biso Menika

1963 Present : T. S. Fernando J., and Abeysundere. J

YASO MENIKA ,Appellant, and  BISO  MENIKA and ,another, Respondents

S. C. 5411961?D. G. Kurunegala, 5299

Kandyan Law Declaration and Amendment Ordinance (Cap. 59)- Acquired properly-Intestate succession Binna  and diga marriages Illegitimate  children - Birth  certificate -Sections  9 (1)  to 15 (c);

The Kandyan Law Declaration and Amendment Ordinance debars a woman married -in diqa after- the -commencement of  that Ordinance from succeeding to any rights in the acquired property of her-father who died-after  the-commencement of that Ordinance.

Where a deceased person - had merely caused to-be--registered a birth of a child in the sense that-he had informed that registrar of the birth , but had net-had himself registered as the father of-that child, the latter can maintain no claim as an illegitimate child of the deceased to succeed to any acquired property of the. deceased - by virtue of section 15 (c) of the Kandyan Law Declaration and Amendment Ordinance.

APPEAL from a judgment of the District Court, Kurunegala.

Walter Wimalachandra, with. M. T. Sivardeen, for the petitioner-appellant.

W. D. Gunasekera, for the 9th and 10th respondents.:

May  9,1963. T. S. FERNANDO , J. -

The question: agitated on this appeal is whether the 9th and 10th respondents, Ran, Menika , are entitled to a share in the acquired property of the deceased John who died intestate on 30th July 195ô i.e. after the commencement of-the Kandyan Law Declaration and Amendment Ordinance (now chapter 59).

By a statement of claim presented to the court on .14th March .19574 the: 9th & 10th respondents, along: with another,: the -8th, respondents, Biso Menika, - claimed to be children of the- deceased- John Banda and of a woman called Dingiri Amma and further claimed to be-entitled to-' shares in the acquired property left by the deceased . At the - 4nqgir' before the District Court it was established on Biso Menilca's own evidence that she had married and moved away from her parent's household and had not come back to reside therein. Her claim to succeed to the deceased intestate's property therefore failed in any event. The learned District Judge3 while-holding that the 8th respondent was not entitled to succeed

in her claim, held that the other two claimants were so entitled because, to use the learned Judge's own words, although they were given out in diga they have come back to the house of Dingiri Amma and are entitled to a share of the acquired property. Against this finding the petitioner, the widow of the deceased intestate, appeals to this Court.

There was no dispute that the parents of the 9th & 10th respondents were not married. The question arising on this case appears to have been decided in the District Court without paying any regard to the relevant provisions of the Kandyan Law Declaration and Amendment Ordinance. Sections 9 and 15 of this Ordinance are not merely relevant, but they also effectively bar Ran Menika and Pemawathie Menika from succeeding to any rights in the acquired property of John Banda. In the case of Ran Menike, the 9th respondent, there is no dispute that she herself was married in diga in 1950. Her claim to succeed is therefore barred by section 9 (1) of the Ordinance referred to above which enacts that " a marriage contracted after the commencement of this Ordinance in binna or in diga shall be and until dissolved shall continue to be, for the purposes of the law governing the succession to the estates of the deceased persons, a binna or a diga marriage, as the case may be, and shall have full effect as such ; and no change after such marriage in the residence of either party to that marriage and no conduct after any such marriage of either party to that marriage or of any other person shall convert or be deemed to convert a binna marriage into a diga marriage or a diga marriage in

Click Here to Read the rest of this document