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Present: Ennis J. and De Sampayo A.J.
VALTPILIiAI v. SABAVANAMUTTU et al.
22——D. C. Jaffna, 1,323.
Tesawalamai—Man dying issueless leaving nephews and nieces by adeceased sister—Do nieces only succeed to the intestate, t
Where a man died intestate and issueless, bat leaving himsurviving sons mid daughters of a deceased sister, both the • sonsand daughters of the deceased sister succeed to his estate; thedaughters do not exclude the sons of the deceased sister.
X HE facts appear from the judgment.
H. J. C. Pereira (with him Wadsworth), for appellants.
Bawat K.G. (with him Kanagasabai and J. Joseph), for respondent.
Cur. adv. vvlt.
March 4, 1914. Ennis J.—
This is an appeal from an order of the District Court of Jaffnarefusing to allow the twelfth, thirteenth, and fourteenth respondentsin the original cause to take further part in an inquiry for a judicialsettlement of a deceased’s estate on the ground that they were notheirs of the deceased. It would seem that the first respondent alsocame within the scope of the order, but from some, confusionhas not been definitely mentioned. The first, twelfth, thirteenth, andfourteenth respondents appeal.
The learned District Judge says:“ It is clear from the terms
of the sections of the Tesawalamai (section 1, clause 5, paragraph 2;clause 7, paragraph 2; and clause 14) that the twelfth (originalpetitioner), thirteenth, and fourteenth respondents are not heirs.”There is no record of the facts to which this finding of law canbe applied, and there is no analysis of the sections of the Tesawalamaito show how the deduction is manifest.
On appeal it is admitted that the first respondent-appellant wasthe original petitioner, and should. have been separately mentioned'.The following are stated to be the facts by the- respondent to theappeal, but counsel for the appellants was .not in. a position to saywhether they are correct or not. The deceased had two sisters, whodied before him; the twelfth and the first respondents are the sons'of one of the sisters, the thirteenth and fourteenth respondentssons of the other. Both sisters also had daughters, surviving .atthe time of the death of the deceased. The finding of the learnedDistrict Judge would mean that the daughters of the sisters of the
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deceased inherit the property to the exclusion of the sons. Clause14 of section 1 of the Tesawalamai, after dealing with inheritanceby daughters, children of a second marriage bed, who have no fullbrothers to inherit with them, says: “It is the same with a womanwho has a child or children and whose brother or sister diesafterwards without leaving children, for this woman's daughteror daughters inherit both from the brother or sister of her or theirdeceased mother." It is to be observed that there is.no mentionhere of the exclusion of the sons. The clause proceeds:But if
the said brother and sister die first, and if the mother of the before-mentioned daughter is still alive, then the mother inherits from thebrother and sister, whereby the daughters remain deprived of thatinheritance, for when the ^mother afterwards dies, her son or sonsare justly entitled to all that their mother'leaves at her death."
Clause 5, paragraph 2, deals with the dowry property of a daughterdying without issue, which is divided among her sisters, but if bychance it is,allowed to revert to the mother and^become part ofher estate, then the sons inherit to the exclusion of the daughters.Clause 7, paragraph 2, provides that sons first inherit the modesiumor inherited , property of their parents, and after them their sons.
To me these provisions are unintelligible, unless the principle bethat daughters inherit only by way of dowry, the sons takingthe bulk of the property and being responsible for the debts. If thisbe so, the explanation of clause 14 may be that should a motherinherit, the property of her brothers or sisters, so that it forms apart of her estate before her death, this property goes to the sons,presumably on the principle that she has had an opportunity ofgiving dower to her daughters out of this property. But shouldshe die before .so inheriting, the daughters are to be considered.I confess I fail to see any principle upon which in such an eventthe sons are to be entirely excluded, specially when to excludethem an inference of law must be made from clause 14, for thatdoes not expressly exclude them. In these circumstances, I thinkit extremely doubtful whether the letter of the Tesawalamai canbe construed in the way the learned District Judge has construed it.
Turning to the practice in questions of the sort, counsel on bothsides are unable to cite any case, but we find that for ten years past,in this very case, the appellants have hitherto been regarded asheirs, and in the last appeal in the case, although the question ofthe heirship of one of them had been definitely raised before theDistrict Judge, on the appeal Pereira J. records in-his. judgment:4< The appellant was admittedly a person interested in the dueadministration of the estate," which could not have been the casehad he not been regarded as an heir. Further, it appears that theOrdinance No. 1 of 1911, which now regulates succession in suchoase to the estate of Tamils dying after that Ordinance, theappellants would undoubtedly be heirs. That Ordinance probably
gave expression to an established custom, a custom" which, in thiscase, has been regarded as the law of Jaffna Tamils during theprogress of a long administration of the estate, the appellantshaving already been given some sham of the inheritance.
In these circumstances, I do not consider it desirable to send thecase back for further evidence as to the practice in such cases.It seems to me that a succession so long acquiesced in should notbe disturbed, when to do so would be against the present law ofsuccession, and contrary to any principle deducible from the Tesa-walamai, the words of which are too vague and obscure to establishwith certainly that the law is against the appellants' contention orin favour of the respondent.
I would allow the appeal with costs.
Db Sampayo A.J.—I agree.
VALIPILLAI v. SARAVANAMUTTU et al