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1Present : Middleton A.C.J. and Grenier J.TAMBYAH v. SINNATANKAM et al.
165—D. C. Jaffna, 1909.
Sampayo, K. C., for appellant..
Tissaveerasinghe, for respondent.
January 25, 1910. Middleton A.C.J.—
In this case the plaintiff prays to be declared owner and proprietor ofone-third share of two lands described in the plaint, excluding house andplantation share of coconut trees in the first land. According to the plaint,it woud appear to me as if the plaintiff had admitted the lands in question aspart of his mother's dowry ; and if that were so. then it seems to me in pointof law', according to the decisions of this Court in 11 N. L. R. 345 affirming thedecision of this Court at page 46 of the same volume, the plaintiff would*notbe entitled to succeed.
Putting aside this we will go to the question of possession decided by theJudge. He has found that the property formed part of the estate of themother of the parties. He has found that the property became the subjectof division many years ago, and he has held that the plaintiff by acquiescingin the division is now precluded from making the claim he does in this case.It is clear from his own evidence that for something like thirty years thefirst defendant has been in possession of one of the lands. To my mind it isan extremely strong circumstance why, if that was so, plaintiff should haveacquiesced in an adverse possession for so long a period. .There is also anappearance of conscientious hesitation on his part with regard to the houseand the coconut plantation.
With regard to the second defendant, the evidence 9hows that the secondland was in possession of the second defendant on a title derived from hismother. In my opinion, it is impossible for us to hold that the learned Judgehad acted in opposition to the facts by holding as he has held that theplaintiff's action should be dismissed. I hold that the plaintiffs appealshould be dismissed with costs,
Gkeniek J.—I agree,
share of certain lands which belonged to his mother, who diedintestate leaving him and three daughters, and he set out that onher death the lands devolved on him and his three, sisters in equalshares. In his judgment Middleton A.C.J. says :—
“ According to the plaint, it would appear to me as if the plaintiffhad admitted that the land in question was part of his .mother’sdowry land, and if that was so, it seems to me that in point of law,according to the decision of this Court in 11 N. L. R. 345, whichis the judgment in review of the decision of this Court reported inpage 46 of the same volume, the plaintiff would not be entitled tosucceed.”
Following this opinion, I hold that Mr. Bawa’s contention iscorrect. On the other point, I agree with the learned DistrictJudge that under the Tesawalamai the husband has a right toallot as dowry to his daughter such portions of the dowry propertyof his deceased wife as he may think fit. Under sub-section (9) asimilar right is given to the wife who survives her husband. 'It waspressed upon us by counsel for the appellant that Edward Spauldingby reason of his second marriage had lost whatever right he mayhave had to deal with his wife’s property. I do not think that thesecond marriage altered the position. Sub-section 11 no doubtstates that where a father marries a second time and the nearestrelation takes charge of the children, he “ is obliged to give at thesame time with his child or children the whole of the propertybrought in marriage by his deceased wife and the half of the propertyacquired during his first marriage,” but the duty is still cast on himto give his daughter out of this property a dowry when she marries.So I am of opinion that the dowry deeds executed by Spauldinggave each of the grantees good title to an undivided half of theland. I would therefore dismiss the appeal with costs.
TAMBYAM v. SINNATANKAM et al