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Present: Ennis ancl Schneider JJ.
VELUPILLAI el at. r. MTJTTUPILLAI.14—D. C. Jaffna, 3,531.
Tesawalamai—Property acquired after death of second wife—Is itacquired property of the second marriage ?
S, a Tamil,subjectto theTesawalamai, was married twice.
By his first wifehe hada childR, andby his second wife he had a
child V. After the death of the second wife, S purchased a land atAnuradhapura, and died some time later. V died in 1917 intestateand issueless.. „
Held that, on the death of S, the property devolved on R and Vin eqftal shares, and on the death of V his half share devolved onR, and no portiou-devolved on V’s mother's mother.
The facts are set out in the following judgment of the DistrictJudge:—
One Sivagurunather wasmarriedtwice.By the first marriage he
had one child Rasamma, the second petitioner, appellant; and by hissecond marriage with Chinuachchipillai (administratrix's daughter) hehad another child Visuvalingam.
After the deathof thesecondwife,Sivagurunather purchased a
piece of land at Anuradhapura. Sivagurunather died first, and in1917 Vivuval ingam died. Visuvalingam’sestate was administered
by b is mother’s mother, the present administratrix in this case.
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Thepetitioners, appellants,filedpapers for judicialsettlement of
the estate, making the administratrix and others as respondents.The disputes between the parties were settled, and a paper of settlementwas filed.By thatpaper thesecond petitioner,appellant was given
the Anuradhapura land, but the administratrix, respondent, reservedto herselfthe rightto claim a share of the Anuradhapura land if so
Later, on the application of the administratrix for *a declarationin herfavour,the DistrictJudgemade the. followingorder:The
question to be decided is whether property acquired after the death ofthe secondwife bya husbandwho was marriedtwice should, for the
purposes of the administration of the estate of the 'only child of thesecond marriage, be treated as the acquired property (tkediatketam) ofthe second marriage, or whether it should be treated not as acquiredpropertyof thehusband, butas hisown property which,on hisdeath
before thechild ofthe secondmarriage, devolvedon the only child of
the first bed and the only child of the second bed in equal shares, andthat the half share of the child of the second bed on his death devolvedupon his half brother, the child of the first bed.
The thediathetam is the property in which under the Tesawalamaiboth husband and wife have a mutual interest, and which is in commonbetweenthem;it comprisesthe profits arising from each oftheir
respective separate properties, namely, the husband's mudttsom andthe wife's dowry and inheritance and of what is acquired by theexertions of the spouses during the marriage (see Mutukristna, pp. 260tH seq.).
It follows that if the wife is living apart from the husband, andwhile so living apart acquired money, we will say, by teaching or bytypewriting, with which money she bought a property, bhot propertydearly would not fall into the thediathetam. The decision in Mutu-kristna, pp. 181, 182, is clearly grounded on such a consideration. I thinkif it had been proved in that case that though’ the spouses were livingapart, yet the wife acquired the land, we will say, with the profits-arising from her dowry property, the decision would have been different.
The test would always be out of what fund the property was acquired ?
If, then, of two married persons, the wife dies first, the presumption,until the contrary is proved, is that property acquired by the husbandafter the death of the' first wife and before his second marriage is theacquired properly of the first marriage.
Similarly, property acquired by the husband after the death of thesecond wife must Be presumed to be the acquisition of the secondmarriage.
I am of opinion that " during marriage ” does not imply durationof time, but connotes merely the fact of marriage. In other wordsit means simply by reason or in consequence of the marriage.
That appears to be the view upon which the case in Mutukristna,p. 16, was decided. The assessors were asked (see p. 17) whether ifa father who has a child by the first marriage enters into a marriagewith his concubine without making a division of 1 the accumulationbefore the second marriage, the children .of the first bed were notentitled to succeed to all the dowry property of their mother, togetherwith the acquisition up to the ' second marriage. The answer was inthe affirmative. And the assessors further advised that the half ofthe father's mudusom and the entirety of the acquisition from thesecond marriage onwards should go to the children of the second bed.
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I think, were it only on the ground of convenience- this arrangementis commendable; otherwise we should have to find out what wasacquired by the husband up to the death of the first wife, what beacquired between that time and tbe second marriage, what he Acquiredduring the second marriage, and lastly what he acquired after hissecond wife’s death. If there were three wives, it would be still morecomplicated.
On a consideration of the authorities quoted, I am of opinion thatSCr. Kites is right, namely, that half the property in question devolvedon the petitioner and the other half on the administratrix. Orderaccordingly. Petitioner will pay the costs of the administratrix.
The petitioner appealed.
Balasingham, for the appellant.—Property acquired 'after thedeath of the second wife is not acquired property of the secondmarriage, either under the old Tesawalamai, or under theOrdinance. It was not acquired during the second marriage.
The deceased died1 in 1917 after Ordinance No. 1 of 1911 cameinto force. The stepsister is the heir to Visuvalingam under section27, see also section 19.
No appearance for the respondent.
June 27, 1921. Ennis J.—
This is a question of succession to the estate of one Visuvalingam,who died leaving a sister and a maternal grandmother. Theproperty in dispute, on the death of the intestate’s father, passed totwo children in equal shares. The learned Judge has held that thehalf share which Visuvalingam acquired from his father shoulddevolve equally upon the sister and maternal grandmother. Thesister is the appellant. Counsel for the appellant has referred us tosection 27 of the Ordinance No. 1 of 1911 as explained by section 19,and under those sections it seems clear that the appellant is entitledto succeed in the appeal, and would seem entitled to the wuoleof the property in dispute. I would accordingly allow the appeal,with costs.
Schneider J.—I agree
VELUPILLAI et al. v. MUTTUPILLAI