Aiyadurai v. Kathirasipillai
1956Present: Pulle, J., and Weerasooriya, S.V. AIYADURAI et al, Appellants, and KATHIRASIPILLAI,
S. C. 123—D. C. Jaffna, 5,475
Vhesavcilamai—Issue by more than one marriage—Property acquired during firstmarriage—Succession thereto—Oap. 61, Part I, as. 10,11,14.
Under Thesavalamai, when a man has issue by more than one marriage, thechildren of the first marriage succeed ultimately to the whole of the propertyacquired by him during the subsistence of that marriage.
•^APPEAL from a judgment of the District Court, Jaffna.
Thiogalingam, Q.O., with C. Renganathan, V. Arulambalam andV. K. Palasuntheram, for the defendants-appeiiants.
S. J. V. Chelvanayaham, Q.C., with A. Nagendra, for the plaintiff-respondent.
Cur. adv. vuU.
1(1948) 39 C. L. W. 32.* (1948) SO N. L. JR. 181.
«(1950) 51N. L. B. 213.
PULLE, J.—Aiyadurai v. Kathiraaipfflai
April 24, 1956. Pulle, J.—
By our judgment dated the 13th March, 1955, the case was remittedto the District Court to enable the parties represented at the hearing ofthis appeal to adduce evidence as to whether the land which is the sub-ject matter of the action was mudusom property in the hands ofVaithinather. The record has been returned with the fresh evidence.The finding of the learned Judge on that evidence is that the land was-not mudusom property in the hands of Vaithinather but acquired byhim during the subsistence of his marriage with his first wife Akilandam.
It is not necessary to discuss the reasons for the finding beyond statingthat the evidence supported it and learned counsel for the plaintiff was-not in a position seriously to challenge it.
In the course of the argument which preceded the earlier judgment itwas submitted on behalf of the appellants that if the property in suithad been acquired by Vaithinather diming the subsistence of his firstmarriage then only the children of that marriage would have been en-titled to inherit it and not the plaintiff who was a child of the fourthmarriage. It appeared to us that this submission was accepted bylearned counsel for the plaintiff as a correct statement of the law, butafter the record was received back he intimated to us that if the findingon the fresh evidence that the property had been acquired by Vaithinatherwere affirmed he would contend that, on the death of Vaithinather’s.first wife, one half of the property devolved on the children of the firstmarriage and that upon the death of Vaithinather the remaining halfdevolved equally on all his children.
Learned counsel on both sides relied on the provisions of the Thesava-lamai (Gap. 51) in support of their respective contentions. It mayperhaps be convenient at this stage to mention that it was franklyconceded by counsel on behalf of the plaintiff that he could cite noauthority for the proposition which he put forward and that, on thecontrary, two cases appearing in Mutukisna, namely, WaUiamme i>.Maylimgenam of 1823, p. 16, and Sangereputle Sanmogam v. Sinnecoottyof 1834, p. 33, rather supported the appellants’ contention that wherethere are issue by more than one marriage the children of the first marriagesucceed ultimately to the whole of the property acquired during thatmarriage.
Several sections of the Thesavalamai (Cap. 51) were minutely analysedand discussed at the second argument before us. Section 10 in Part Ireferred to by the counsel for the plaintiff deals with the division ofproperty acquired during the first marriage of a woman who marriesa second time after the death of her husband. There is nothing in thissection which lends support to the contention of plaintiff’s counsel or isinconsistent with the position taken up by the appellants.
We are in entire agreement with the counsel for the appellants thatthe provisions laid down in section 11 turn essentially on the principle thathalf the acquired property belonging to a wife devolves on her children
PULLE, J.—Aiyadurai v. Kathirasipillai
immediately on her death; but if the surviving spouse dies after contrac-ting a second marriage, the devolution of the remaining half of thatacquired property of the husband is restricted to the children of thefirst marriage. It is also our opinion that the first paragraph of section14, which was strongly relied on by counsel for the plaintiff as supportinghis contention, refers only to the father’s mudusom property, and notto his half share of any property acquired during the first or a subsequentmarriage the devolution of which is fully dealt with in section 11.
W© hold with the appellants that on the death of Vaithinather noshare whatever devolved on the plaintiff in her capacity of daughter ofVaithinather by his fourth marriage. It is not disputed that Pethachi-pillai, the daughter of Saravanamuttu—who was the eldest child ofVaithinather by his first marriage—succeeded to a share of the propertyas the sole heir of her father. On Pethachipillai’s death the plaintiffbecame entitled to a share of the property inherited by Pethachipillai.The appellants’ answer to this part of the claim is that since about 1890the entire land had been possessed in two distinct blocks, one of 54lachams on the north and other of 50 lachams to the south (which includesa portion in extent 10 lachams given to a temple) and that Pethaehipillai’sinterests were confined exclusively to the southern block and that theplaintiff was likewise, as heir of Pethachipillai, confined to the southernblock.
The learned trial Judge has in his judgment dealt with the claim of theappellants that the northern block was exclusively possessed by themand that they had acquired a title thereto by prescriptive possession.He rejected this claim. The reasons given by him are, in the light of ourdecision that no share in the property passed by intestate successionfrom Vaithinather to the plaintiff, not tenable.
The learned Judge says in one place,
“ She (the plaintiff) was a co-owner of the property along with theother children of Vaithinather ”, and in another, .
“ The plaintiff having been co-owner with the predecessors in titleof the defendants, they must prove an ouster by themselves more than10 years before the date of this action or one by their ancestors.”
The plaintiff’s case has been viewed from the angle that as far back as,at least, 1885 she, then being a child of tender years, succeeded to a shareof the property in suit on the basis that it was mudusom property of herfather Vaithinather whereas in fact she acquired for the first time aninterest in the land about sixty years afterwards on the death ofPethachipillai. The appellants’ claim is that at the time of Pethachi-pillai’s death the division into two portions had been complete and wasamply recognized in documents.
As far back as 1885 one sees from the dowry deed D4 in favour ofSinnathangam, a daughter of Vaithinather by his first marriage, anattempt to localise the undivided one fifth share of the whole land granted
PULLE, J.—Aiyadurai v. KathirasipiUai
by the deed. In deed D1 of 12th December, 1890, a similar attempt wasmade to localise an extent of 40 lachams to the south, of which a £ sharewas the subject of a dowry deed in favour of another daughter of Vai-thinather by his first marriage named Nagupillai. D6, dated 13thDecember, 1890, is a sale to Sanmugam, the husband of Nagupillai, ofan extent of 30 lachams described as bounded on the east by the land ofSinnathangam (i.e. the land acquired by her on D4) and on the south bythe land of Wagupillai and Saravanamuttu. It is not without significancethat on the same day as D6 a mortgage was granted by D22 of the nor-thern block the southern boundary of which was described as the “ com-mon land belonging to Nagupillai wife of Kathirigamar Sanmugam andVythinather Saravanamuttu The extent of 30 lachams acquired bySanmugam on D6 was subsequently sold by D10 of 3rd October, 1899,to Kanapathipillai, who transferred the same by Dll of 24th December,1906, to his wife Sinnathangam. According to the appellants, theirpredecessor in title Sinnathangam thus became the sole owner of theentire defined northern block of 54 lachams. By deed D14 of 1924 Nagu-pillai dedicated a J share of these 40 laehams to a temple. The descriptionin the deed of the area of 40 lachams is consistent with the contention ofthe appellants of a permanent division of the land into one northern anda southern block. The appellants find further support from the inven-tory D2 dated 1st May, 1919, filed in the testamentary case of Sarava-namuttu (the father of Pethachipillai under whom alone the plaintiffcan claim a share) in which the intestate is said to have died possessedof an undivided 3/5 share of the land in extent 50 lachams. The northernboundary of this extent is given as the property of Sinnathangam. Theinventory P2 made by the plaintiff herself in Pethachipillai’s testamen-tary case describes her interests as—
“ an undivided 40 1ms. v.c. out of all that piece of land calledMuthesanthirayanvalavu in extent 50 1ms. v. c. ”
The trial Judge’s finding on the issue whether the land was possesseddividedly giving rise to title by prescription has been largely influencedby the alleged admission that the property being mudusom in the handsof Vaithinather the plaintiff succeeded on Vaithinather’s death equallywith the other children. The position at present is fundamentallydifferent and the evidence adduced by the appellants to prove a divisionhas greater force than on the basis on which the Judge viewed thatevidence.
In our opinion the appeal succeeds with costs both here and below.The plaintiff’s action will be dismissed but the right is reserved to herin any future proceeding to vindicate her interests in the southernblock.
Weerasooriya, J.—I agree.
V. AIYADURAI et al., Appellants, and KATHIRASIPILLAI, Respondent