Comparison of three laws in intestate succession
Introduction
Sri Lanka is a
jurisdiction where different laws with different legal values apply. As a result
legal pluralism plays an important role in the legal system of Sri Lanka.
Therefore matrimonial rights and obligations of spouses are different from one
system of law to another. There could be
some uniformity in the law due to the enactment of uniformly applicable by the court.
One important feature that can be observed in all legal system as regards
rights and obligations is that they are not equally distributed between the
husband and the wife.
The husband is
considered to be the head of the family unit. The primary responsibility lied
with him as regard the provision of production and welfare his wife and
children. The wife’s rights and responsibility are subordinate to those of the
husband.
However this
position now changed by married woman property ordinance which is applicable to
person who are governed by General Law. This paper is going to give a clear
picture about three different laws they are thesawalamai, Kandyan.la ad General
law by comparing it certain matters such as applicability, inheritance,
division of property.
Development
of Law
Roman Dutch law
Roman Dutch
law is regarded as common law of Sri Lanka. Because it provides the non
statutory foundation of uniformly applicable legal principles to fill gap in
the personal laws.
The RDL
regarding requests knows as fidei commission a was an important aspect in the
area of law of inheritance was abolished by the abolition of fidei commission
and fidei by Act No, 20 of 1972.
The RDL was
widely applicable in the area of land law as ownership of immovable property
was significantly modified by legislation regulating land and house.
ü Kandyan law
The kandyan successions
ordinance created an exception to this rule by declaring that children of a
mixed marriage between a kandyan resident in kandyan province ad a non kandyan solemnized
under the kandyan law would be deemed to be kandyans.
Kandyan
succession ordinance was enacted mix marriage solemnized. Kandyan marriage
ordinance of 180. However this position was changed with enactment of kandyan
marriage and divorce Act No of 44 of 1952. This Act replied the earlier
marriage ordinance now declares that a marriage can be solemnized under kandyan
law only between kandyan parties.
Tesawalamai law
The
Tesawalamai code was codified by the Dutch dealing with variety of subject
inheritance and succession to property, adoption, gifts, and mortgages, hire of
heists, purchase and sale of land. When legislative enactments were published
in 1938 in Tesawalamai sale of children and part 4 cod e were excluded.
As Tesawalamai
code was rough compilation there types in the code RDL was considered to major
source of law in the maritime province to fill the gap in the code.
Applicability
GMRIO
According to the
section 2 of the General matrimonial rights and inheritance ordinance this
woman shall be govern by the same race or nationality as her husband for all
the purposes of this ordinance. Until the subsistence of that marriage and
until she marries again.
Also this
ordinance shall not apply to the kandyan, Muslims and the Tamils who are
subject to the Thesawalamai law.
Jaffna matrimonial rights and
inheritance ordinance
According to
the section 2 of this ordinance shall apply the Tamils to whom the Thesawalamai
apply and their movable and immovable property wherever situated.
Also under the
section 3 (1) f this ordinance if a woman to whom the Thesawalamai apply
marries a man to whom the Thesawalamai does not applies she shall not be
subject to the Thesawalamai during the subsistence of marriage.
According to
the section 3 (2) if a woman the Thesawalami does not apply marries a man to
whom the Thesawalami applies she shall b subject to the Thesawalamai during the
subsistence of marriage.
The Tesawalamai
regulations applied to Malabar inhabitants of the province of Jaffna (section 2
of Tesawalamai regulation No 18 of 1806 and ordinance No5 of 1869. The
judiciary in numerous cases has attempt to interpret the term Malabar
inhabitants of the province of Jaffna. In Sivananalingam
v. Suntharalingam Tesawalamai applies to Tamil inhabitants of the Northern Province.
In both GMRIO and JMRIO in regarded as the
nationality of husband.
Kandyan law
According to
the section 1 (2) this ordinance shall to the person who subject to the kandyan
law. Section 3 (1) (a, b) of marriage and divorce act (kandyan) provides that
registration and solemnization is compulsory for the validity of that marriage
Rules
of Inheritance
GMRIO
If a person dies without a testate to
his or her property and leaving a spouse surviving, that surviving spouse shall
inherit one-half of the property of deceased person.
According to this ordinance inheritance
shall be divided according to the
Descendant
·
Ascendants
·
Collaterals
Under this ordinance there is no
difference between full brothers/ sister and half brothers or sisters. In this situation
if father died without a last will. Property will be divided equal manner
between the children without any discrimination.
If a descendants failing to the
inheritance of the deceased property it goes to the father and mother of deceased
person (both they are living) .
But if only on parent alive he or she
can only get one half of property and other half of property divided between
the sister and brothers of deceased person.
When full brothers and sisters or their
children or remote issue fails and if thereby are half brothers and sisters children
or remoter issue on both side alive, one half of property goes the half brother
and sisters of their children and remoter issue by representing the fathers
side and other side half goes to the half brothers and sisters on the mother’s
side and their children and remoter issue by representation.
If there is only one side half brothers
and sisters ,o the one half of property goes to them and if grandmother and grandfather (ascendants)
alive other half goes to them. But if there is no any ascendants whole property
goes to half brothers and sisters.
If the all person above mentioned
failing inherent goes to the nearest ascending line as per capita and all they
are failing entire inheritance goes to the surviving spouse.
If anyone dies intestate without her,
his or her estates escheats to the state. But if any heir can be found beyond
the 10th degree they can take the inheritance.
Inheritance under the kandyan law
Section 11 (1) of kandyan law
declaration provides that succeeding right of widow on deceased property. She
as entitled to get acquired property of husband only in certain exception she
can maintained out of the paraveni property. Such situations are acquired
property is insufficient or then is no acquired property. If there is a child
or descendants by a former marriage such surviving spouse husband to maintain
legitimate children of the deceased when there is a minor child and no property
was left to the child .
When such widow remarry in diga, she shall
cease to be entitled to maintaince out of the paraveni property of the deceased
but her rights on acquired property con not be forfeit. A widow can succeed
paraveni property of deceased in the event of no other heir to the deceased.
Death of the father of the diga marred
daughter shall enjoy affect her any share of property according to the section
12 (1). But within period of one year after her father death brothers and binna
married sisters of such daughter shall tender to her the fair market value of
the immovable property .such daughter shall so convey and shall be compellable
by action so to do.
According to section 16 of kandyan law declaration,
a person dying intestate leaving no surviving spouse or descendant’s parents of
deceased can claim the acquired property of deceased. Death of persons also,
that property goes to sisters and brothers of deceased. The father’s side heir
can inherit paternal paraveni but if there is no surviving her mother’s side
can get that property.
Inheritance under the JMRIO
According to this ordinance if a either
spouse death without last will the one half of thediatheddam goes to the surviving
spouse and other half goes to the heirs of deceased spouse.
If children and remoter children failing
whole property of the deceased whether there is a surviving spouse can inherit
it.
Also the whole property of the deceased
derived from the mother’s side and one half of the remainder of estate of the
deceased if there is a surviving of mother can inherit.
According the JMRIO there is a
difference between the full brothers / sisters and half brothers or sisters
regarding the property dividing.
All the persons above mentioned failing
the property divided from the intestate from the father’s side or mother’s side
that property can be devolved on the paternal uncles and aunts an inherit the
property.
Illegitimate
position
ü GMRIO
According this ordinance illegitimate
children inherit the property of their intestate mother. But they cannot inherit their father or of
the relatives of their mother.
Also if illegitimate person dies without
a surviving spouse or descendants , his or her property shall go to the heirs
of the mother’s side or if there is no descendants or ascendants it’s goes to
the state.
ü JMRIO
Illegitimate children shall the property
of their intestate mother. But cannot inherit their father.
Also if an illegitimate person dies
without a surviving spouse or descendants his or her property will go to the
mother and the hires of mother’s side or sate.
Kandyan law
Section 14 of the kandyan law declare,
provides that child who born to not married parents according to law is called
as illegitimate child. Proviso of this section provides that a legal marriage
between any parties hall have the effect of rendering legitimate to any child
procreated the marriage. Albeit, the child who procreated in adultery cannot
become a legitimate child. This position is excluded in General Law. Child has
no right of inheritance in paraveni property of deceased. If there is no
legitimate child subject to the right of acquired property. No right of
Inheritance to the illegitimate child on
aparehencey property of woman married in Binna (section 18(1))
In W.Herman
Silva v. W Kainerishamy et al the question was whether an illegitimate child
could claim to be an heir of his father’s intestate estate. The Supreme Court reversed
the finding of the district that the 3rd defendants although
illegitimate should be recognized as enjoying the states of Roman Dutch law
relating to putative marriage and held that in view of section 23, 24 and 33 of
the ordinance the Roman Dutch law concept cannot be applied.
Similarly the father of an illegitimate
child has no right of succession to the property of the child. Where an
illegitimate person leaves no surviving spouse or descendants his or her
property vests in the heirs of the mother so as to exclude the state. In Appuhamy v.Perera, it was held that
where a person of illegitimate birth dies leaving her surviving husband and other
illegitimate children of her mother, her husband is entitled to succeed to the
entire estate.
Women’s
rights in property allocation
ü General Law
According to the matrimonial right and
inheritance ordinance of 1877 there a marital control over the woman. So wife
is subject to the husband’s control and wife cannot do any legal activity
without the husband’s consent.
Married women’s property ordinance of
1924 was introduced after repealed the matrimonial rights and inheritance
ordinance. There is no marital control under the married women’s property
ordinance.
According to the section 3 of married
women’s property ordinance .If a woman marries a man of different race or nationality
from her own, after the commencement of this ordinance she shall be taken to be same
race or nationality as her husband so as long as the substance of marriage and
until she marries again.
Also this ordinance shall not apply to
the community of property of the women, who married prior to the 1877.
According to the section 5 of this
ordinance a married woman shall be capable too acquiring, holding or disposing any
movable or immovable property by will or otherwise as her separate property in
same manner as if she were feme-sole and no need to intervention of the
trustee.
Also if a married woman entering into or
rendering her a contract on her separate property during the subsistence of
marriage she liable in respect of the contract as if she was a female-solo.
Also her husband need not be joined with
her as plaintiff or defendants or any party to any action or other legal
proceeding against wife and he not be liable on the ground of her husband and
wife have to recovered any damages, cost or any action by her separate
property.
A married woman can carrying on a any
trade separate from her husband in respect of her separate property and she
shall be subject to the insolvency laws in the same manner as if she was a
female-solo.
Any will made by a married woman during
the subsistence of her marriage, whether she is or not possessed of or entitled
to any separate property at the time of making the will be construed as regard
that property take effect as if it had been executed immediately before her
death.
According to section 7 every woman who
marries after the commencement of this ordinance entitle to have and hold, all
movable and immovable property which belong to her at the time of marriage,
shall acquired by or devolve upon her
after marriage including any wages, hearings, money and property gained or acquired
by her in any employment, trade or occupation in which she engaged or carries
on separately from her husband or by exercise any literary artistic or scientific
skill, she can hold or have as her separate property.
According to section 8 if a married
woman lent or entrusted any money or other property to her husband for the
purpose of any trade or business carried on by him shall be treated as assets
of her husband’s estate in the case insolvency and if wife claim to a dividend
as a creditor for the amount or value of such money or property.
Tesawalamai law
According to section 3 of Jaffna
matrimonial rights and inheritance ordinance woman shall be governed by the
same law of her husband during the subsistence of their marriage and until she
marries again.
In pure thesawalamai law there is no
marital control. But after RDL used to fill the Laguna’s in tesawalamai law and
in that time they introduced this marital control concept. So under the Jaffna
matrimonial rights and inheritance ordinance woman has no power to disposing of
and dealing with her any separate property by any lawful act without the
consent of her husband in the case of immovable properties.
But in the case of cannot get her
husband’s consent for valid dispositions of or dealing with any property
because of deserted by her husband or separate him for mutual consent or shall
have lain in prison under sentence or order of any competent court for a period
of 2 year or if is a unsound mind or idiot or his place of abode shall be
unknown or if his consent is unreasonably withheld or the interest of the wife
and children the wife shall be liable for apply by petition to the family court of her district.
Also in the case of husband and wife
separation has been decreed by a competent court the husband’s consent shall
not be necessary to the wife o deal with or dispose of her separate property.
Under this ordinance husband and wife can make
or join each other in making any voluntarily gift, grant, and settlement of any
property whether it’s a movable or immovable upon or favor of the other during
the subsistence of marriage. But except the jewels, personal or name, wearing
apparel of the wife given by her husband. The separate property (gift, property
granted, settled and acquisition) shall be subject to the debts and engagement
of each spouse in the same manner, same extend.
According to the section 13 if a married
woman having a separate adequate property for the purpose of maintenance of her
children she shall be subject to all such liability to maintenance her children
as widow.
ü Kandyan law
There is no marital control under the
kandyan law declaration and amendment ordinance.
Also there is no change of the woman’s
law after any such marriage or in the case of convert binna marriage to diga
marriage and diga marriage to binna marriage.
Under this ordinance woman has a right
to involving any contract or any legal
proceeding on her separate property without the consent of her husband.
If woman contracted with the diga
marriage cannot be inherited the paraveni property. But binna marriage daughter
can inherit to the paraveni property.
Also the dowry property of the woman
consider as a gifted property to her and as well as her separate property.
If
woman leaves the house of her parent and goes out in diga marriage but
does not contract with that man a marriage which is valid according to the law,
she shall not be entitle to the father’s side paraveni property after the death of any person intestate.
Whether
there is gender based equality
ü GMRIO
Current
position of General Law on testate and intestate succession does not contain
gender based discriminatory provisions on the contrary the wills ordinance which
applies to all citizens of srilanka empowers person to dispose of their
property by will without any decisions. Thus even a woman subject to
thesawalamai law can dispose of her immovable property by last will without the
consent of her husband. Nevertheless woman subject to customary law suffer
gender based discrimination to some extent in respect of intestate succession.
ü JMRIO
According to section 6 of JMRIO married woman
has to get written consent of her husband to distain a period of one year after
the date of dispose immovable property. However when we read this provision
with section 8 of the same act, family curt of district has the authority to
give an order authorizing her to dispose of or deal with such property without
her husband’s consent in the event of unreasonable with held of consent.
Kandyan law
The kandyan law
of intestate succession contains discriminatory provisions towards girl
children. Unmarried girl children and binna married girl children, whether
married before or after the death of the father, are entitled to inherit their
father’s property. However a daughter given in diga marriage before the death
of the father forfeits her rights to inherit his estate. Where a contracts. A
diga marriage after the death of the father, she can inherit the father’s
property but if within a period of one year after the date of her marriage her
brothers and binna marred sisters gender her fair market value of the immovable
property, she is bound to convey the property to them.
Conclusion
It is unique
to our country that we have different personal laws which applicable to
particular territory or group of people. There are various different in with
regarded to inheritance rules, illegitimate child position, history and development,
division of property, woman rights. The personal laws codified and modified
after the Government of foreigners in our country. There are lot of arguments
in this point by their codification some innovative aspects was included into
the personal laws which were not unknown to its origin. However through this
codification some uncertainty is prevented.
May of the scholars put their opinion that,
informing law is suitable to the legal system of Sri Lanka? Because of many
conflicts arise between personal laws. Eventhuogh we have to consider about of
the important of personal laws as the customs of the particular community for a
long period. As fairs it is concerned, the Roman Dutch law as a common law of
the country fills the gaps in personal law.
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