( 887 )
Present : Ennis A.C.J. and Schneider A.J.
In re SITHAMPAEAPILLAI8—D. C. Batticaloa, 980.
Doctrine of election—Last will—Bequest of aU property to a 'natural sonon condition that he supports testator's wife—Claim by wife of halfacquired property—Tdsawalamai.
A testator who was subject to the Tdsawalamai left all his pro-perty to his adopted son, (natural son), subject to the conditionthat he should support the testator’s wife. The testator's wifeclaimed one-halftheacquiredproperty as her property, over which
the testator hadnodisposing power, and further claimed anallowance
for her maintenance.
Held, that the wife was entitled to an order for maintenance,and that she was not-bound by the doctrine of election.
HE testator by his last will devised all his property to Eisnatural son, and directed him in consideration thereof to
support his wife,asister ofthe minor’s mother. Thetestator
was a native ofJaffna, andthe parties are governedby the
, Jn re
( 888 )
The first respondent claimed half the acquired property, whichwas allowed, and thereafter made application to the Court that theminrtr should contribute for her support.
The District Judge, C. Coofnaraswamy, Esq., ordered the appel-lant to pay the respondent Bs. 80 per mensem.
The last will was as follows:—
Whereas toavoid certain legaltechnicalitiesand complications I have
not registered in my name my son Sithampara Saravanapava Arambamoorthyborn to me of Venayaga Mudaliar Sivapakiam on January 18, 1912:
Whereas he is my own son, and also I have adopted him as my sonfor all purposes of inheritance under the law of Tisawalamai; andwhereas it is necessary to safeguard his interest, I make this my last will andtestament:
I, ArambamoorthySithamparapillai, of PointPedro, presently of
Batticaloa, do give, devise, and bequeath all (my) property of what- kind or nature soever,movableaswellasimmovable wherever found
or situate, inpossessionor expectinginremainder or reversion, real or
fiduciary, or held in trust,all religious, charitable, ' and educational
institutions founded by me or my ancestors, or to be founded by me ormanaged by me or my ancestors, or to be managed by me hereditarilyor otherwise,nothingexcepted,tomysonSithampara Saravanapava
Now, the conditions ofthis my-last will andtestamentarethatmy
said son should' remaina Hinduthroughouthislifetime,and complete
proceeding as far as possible continuously a full course of educationin some university, andcontinueto supporthismotherandmywife
Valliammal, his aunt, provided they do not marry.
On failure ofany of theconditions, and in casemysaid son should
die unmarriedandiBSuelessand intestate,my entireproperty shail accrue
to the benefit of the Point Pedro Samundy Amman Temple and thePoint PedroVivekanandaGirls' School, my wifeValliammal and
his mother Sivapakiamretainingtherein alifeinterest,providedthey
do not marry. ' If Bnch contingency arises, I appoint my friend Valayutham-pillai ' Arunasalam, B.A., Madras, ofPuloly, Point Pedro,to
manage and distribute for the said two purpose’s alone the saidproperty, and the said Arunasalamshall have power to nominate a
successor tothesaid management, andon failure to nominate such
successor,.- the entire property shall be managed by the then managersof the said two institutions.
I herebyappoint my brother-in-lawVenayagaMudaliyar Vadivelu
as the executorof this mylast will and testament,andas the guardian
of the person of my said son.
It shall becompetent, with the permission oftheCourt, for the
executor, mysaidson, tosell, to lease out any ofmy property for the
purpose of educating my said son.
This last will and testament is made, Ac.
June 17, 1915.
( 339 )
Samarawiokreme, for the appellant.—It is clear from the terms
of the ■will that the testator devised .all his property to his adopted JTftWson, and only gave the widow a right of maintenance. The widow Sithampara-has, however, insisted on getting a half share of all the acquiredproperty, and this the testator did not give to the widow. If thewidow repudiates the will, she is not entitled to claim maintenanceunder the will. The testator was a resident of Battioaloa, and hewas of the opinion that he had a right to dispose of all his acquiredproperty by will under the general law of Ceylon. But the widowhas olaimed her rights under the Tisawalamai.
Counsel cited Halsbury, vol. XIII., p. 132.
Balasingham, for the respondent, not called upon.
Mav 22, 1919. Ennis A.C.J.—
Thisis an appeal from an order in a testamentary case. Itappears that the testator executed a will in favour of the appellant,in which he recited that the appellant was his natural son, and thathe had adopted him as his son “ for all purposes of inheritanceunder the law of Tisawalamai,” and he went on further to recitethat it was necessary to safeguard this son’s interest, and that thewill was made in consequence. By the will he disposed o<f all hisproperty to the appellant upon certain conditions, one of whichwas that the appellant should continue to support the testator’swife and other1 persons mentioned in the will. The widow claimedfrom the estate her share in the acquired property, and the appellantcontends that, having elected to take her share separately, he isno longer bound to maintain her. The order appealed from is anorder for maintenance. The law applicable to the doctrine ofelection is very clear, and has been concisely set out in Thompson’sInstitutes of the Laws of Ceylon, vol. II., p. 243: “ PrimA facie, it isnot to be supposed, nor must it be proved by extrinsic evidence,that the testator disposed of that which is not his own so as to raisea case of election. It must appear on the will itself by a plaindemonstration or by necessary implication. ” The learned Judgeis right in holding that it does not appear explicitly or implicitlyin the will that the testator intended to dispose of .his wife’s property,as well as his own. I would go further and say that, in my opinion,the will shows that it was made merely to secure that the adoptedson should obtain an inheritance according to the law of Tisawala-mai, and avoid any question which might arise, because he was nota legitimate son. .
I would accordingly dismiss the appeal with costs.
Schneider A.J.—I agree.
In re SITHAMPARAPILLAI