027-NLR-NLR-V-49-SWAMIPILLAI-Appellant-and-SOOSAIPILLAI.-Respondent.pdf
Swamipillai v. Soosaipillai.
83
1947
Present:Windham J.
SWAMIPILLAI, Appellant, and SOOSAIPILLAI,Respondnent.
S. C. 165—C. R. Mallakam, 13,005.
Thesavalamai—Property of deceased wife—Life interest of husband—Extent of suchinterest—Sale by son after majority—Rights of vendee—Chapter 51, sections 0and 11—Chapter 48, section 37.
Under the Thesavalamai in terms of Chapter 51 of the Legislative Enactmentsa husband married before 1911 is entitled to a life interest in his deceasedwife’s property provided he does not marry again and dowers his daughters.
The provisions of Chapter 48 of the Legislative Enactments have no appli-cation to questions concerning the rights of spouses where the parties weremarried before 1911.
.A.PPEAL from a judgment of the Commissioner of Requests,Mallakam.
C. Shanmuganayagam, for the defendant, appellant.—Every clause ofa statute should be construed with reference to the context and the otherclauses of the statute so as to make a consistent enactment of the wholestatute. (Maxwell on Interpretation 8th ed., p. 20 A. G. v. Brown1.)Clause 1 of section 11 of the Thesawalamai read together with clauses2, 3 and 4 sufficiently indicates that the widower has a right to possessthe deceased spouse’s estate only until the daughters are married and thesons acquire a competent age, unlike the widow who by reason of hersex has been endowed with larger rights as set out in section 9.
If, however, section 11 is considered not sufficiently clear or. this point,the question has to be decided on general principals (Kuddiar v. Sinnar)2and with reference to the principles underlying the provisions ofOrdinance No. 1 of 1911, in vie w of the fact that the latter is an Ordinancewhich gave expression to certain established customs (Vallipillai V.Saravanamuttu3 * ; Mu-rug ant v. Kasinathar)*, whereas the Thesawalamaiis in the words of Tennyson nothing but a “ wilderness of. single instances(Chellappa v. Kanapalhy)5. in fact the Legislature considered section 11of the Thesawalamai: obsolete in certain respects {ThevanapiUai v.Ponniah6 ; AnnapiUai v. Sarawanamuttu)7. The widower’s rights underthe Thesawalamai are narrower than under th^ Ordinance of 1911 ; thelatter, though extending that right, did not give the widower a completelife-interest—Annapillai v. Saravanamutttu (supra).
The decision in Chellappah v. Arum-ugam8, which is the sole basis of thelearned Commissioner’s judgment in the present case, is not applicable,as the facts are different ; in that case the deceased mother left, an infantchild, while here the child was a major at the time of the mother’s death ;
1 (1920) 1 K. B. 773 at 791.
(1914) 17 N. L. R. 294.
(1914) 17 N. L. R. 437.
(1938) 40 N. L. R. 1.
5 Tomb 145.
2(1914) 17 N. L. R. 243.
8 (1914) 17 N. L. R. 381.
‘ (1923) 25 N. L. R. 201.
£4
WINDHAM J-—SwamipiUai v. Soosaipillai.
the learned Judge has further stated in that case : ** I express this opinionwith some hesitation in view of the decision reported in 3 Lorensz 193 ” ;where it was held that according to the Thesawalamai and customs of theplace, the children, being dead, the intestate’s husband had no interestin the estate. Moreover, GaeUappah v. Arumugam (supra) has beenoverruled by Theagarajah v. Paranchotipittai1. where the right ofadministering the wife’s estate would have been granted to the widowerif he was considered to have any life-interest.
8. J. V. Ghelvanayakam, K.G. with A. VythUingam, for the plaintiff,respondent.—Ordinance No. 1 of 1911 does not apply to the presentcase , section 14 of the Ordinace expressly states that the “ following ”sections do not apply to parties married before 1911 ; sections 37 and 38relating to life-interest were “ following ” sections even at the time theOrdinance was enacted.
The Thesawalamai is the only law applicable to the present case. Therelevant provision of the Thesawalamai is section 11, but all clauses otherthan clause 1 of the section are irrelevant to the point at issue. Evenin the case of clause 1 it is incorrect to assume that the words “ so longas he ” ought to be interposed by implication before the words “ doeswith his child ”.
AnnapiUai v. 8arawanamuttu (supra) is not relevant as it dealt with acase where the parties were married after 1911. Sinnalhangachy v.Poopathy2 is the latest authority regarding the rights of the survivingspouse to the property of the deceased spouse ; it was held there that theposition under the Thesawalamai was quite different from that under theOrdinance of 1911. Chellappah v. Arumugam (supra) has not been over-ruled by Theagarajah v. Paranchotipittai (supra) as the question of life-interest was not decided in the latter case. See also Muttukisna pp. 220and 222.
Shanmuganayagam, in reply.—Section 14 of the Ordinance of 1911refers only to part 3 of the Ordinance and not to part 4 which relates tolife-interest. Sinnalhangachy v. Poopathy (supra) decided only widow’srights, not widower’s . See aslo Muttukisna pp. 118 and 43.
Cur. adv. vult.
December 16, 1947. Windham J.—
The plaintiff-respondent sued for a declaration that he was entitledto possession of, and to a life interest in, certain land, and for the ejectionof the defendant-appellant therefrom. The facts, which are not indispute, were as follows. The land had been the property of the respon-dent’s wife, whom he married in 1901. They had only one child, a son,who was bom in 1903. The wife died in 1938. The respondent did notremarry, nor did he even propose to do so. In 1941 the son sold hismother’s interests in the property to the appellant. In 1944 the sondied, aged 40. The respondent thereupon brought this action.
The sole point for decision is a legal one, namely, whether, upon thedeath in 1938 of his wife (the owner of the property), the respondent
‘ (1907) 11 N. L. R. 46 and 345.* (1934) 36 N. L. R. 103.
wiNuTTAM J.—Swamipillai v. Soosaipiltai.
85
acquired a life interest in it, or 'whether such interest as he may haveacquired in it ceased upon his son’s attaining his majority and accordinglyhad expired when the latter sold the property to the appellant in 1941.The relevant provisions of the law are sections 11 and 9 of the Thesawalamai(Cap. SI), and (it is argued for the appellant) section 37 of the JaflhaMatrimonial Eights and Inheritance Ordinance (Cap. 48).
The first point for decision is whether section 37 of the latter Ordinace(Cap. 48) applies at all to the present case, having in view the fact thatthe respondent and his wife were mairied before 1911. Section 37 readsas follows :—
“ 37. When the estate of a deceased parent devolves on a minorchild, the survivint parent may continue to possess the same and enjoythe income thereof until such child is married or attains majority”.
It is conceded by Mr. Chelvanayakam for the respondent that if thissection does apply, then the appeal must be allowed, since the propertyin dispute devolved on the son, and the latter had attained his majoritybefore he disposed of it to the defendant, and the interest of the respondentin it terminated, under the section, upon his son’s attaining his majority.But it seems to me quite clear that this Ordinance (Cap. 48), has no appli-cation in the present case, by reason of section 14 thereof, which providesthat—
“ The following sections of this Ordinance shall apply to the estateof such persons only as shall die after the commencement ofthis Ordinance, and shall be then unmarried, or if married,shall have been married after the commencement of thisOrdinace ”.
Section 37 is, and in the form in which the Ordinance was enacted in 1911also was, one of the “ following sections ”. Accordingly it does notapply to the present case, the parties having been married in 1901.
That this Ordinance, Cap. 48, has no application to questions concerningthe rights of one spouse over property of the other, upon the latter’sdeath, where the parties were subject to the Thesawalamai and had beenmarried before 1911 (i.e., the year of the enactment of the “new Thesa-walamai Ordinance ”, which has now become Cap. 48) was laid downin clear terms in Sinnathangachy v. Poopathy,1 where it was heldthat questions of devolution arising upon such a marriage “ musttherefore be decided with reference to the law as it existedprior to the passing of the new Thesawalamai Ordinance ”fe In short,we must have recourse to the provisions of the Thesawalamai, Cap. 51.It has been contended for the appellant that, even if section 37 of Cap. 48cannot be directly applied in the present case, its principles should beapplied on order to throw light on the meaning of sections 9 and 11 ofCap. 51, which he argues, are vague. But I think this would be aquite unjustified method of getting round the specific provisions of section14 of Cap. 48. It will be noted that it was pointed out in Sinnathangachyv. Poopathy that “ the position under the Thesawalamai is by no means
1 (1934) 36 N. L. R. 103.
86
WINDHAM J.—SwamipiUai v. Soosaipillai.
the position which has been created since the new Thesatoalamai Ordi-nance, No. 1 of 1911, was passed ”, (i.e., Cap. 48). Furthermore,the provisions of sections 9 and 11 of the Thesatoalamai, Cap. 51, so faras they relate to the question now in issue, are in my view not vague,and even if they were to be considered so, they have been thesubject of j'udicial interpretation which I hold to be binding on thisCourt. Section 11 of Cap. 51 provides that—
“ If the mother dies first leaving a child or children the father remainsin the full possession of the estate so long as he does not marryagain, and does with his child or children and with his estate inthe like manner as is above stated with respect to the mother ”.
The remainder of section 11 is, in my view, irrelevant to the presentcase, since it is concerned solely with the event of the father (widower)marrying a second time or wishing to do so. Under the relevant portionof section 11 which I have quoted, therefore, the respondent would seemto be entitled to possession of the estate deriving from his deseasedwife, for life, so long as he remains unmarried and “ does with his childor children and with his estate in the like manner as is above statedwith respect to the mother ”. "What is required to be done by a mother“ as above stated ”. i.e., where the positions are reversed and the fatherpredeceases the mother, is set out in section 9. which provides asfollows :—
“ If the father dies first leaving one or more infant children, the wholeof the property remains with the mother, provided she takesthe child or children she has procreated by the deceased untilsuch child or children (as far as relates to the daughters) marry ;when the mother on giving them in marriage, is obliged to givethem a dowry, but the son or sons may not demand anythingso long as the mother lives, in like manner as is above statedwith respect to parents ”.
From this it appears that ail that is required to be done by the mother,in order that she may be entitled to keep possession of the property forher life, is that she shoud keep and give dowries to her daughters, ifany. In the present case there were no daughters. And the sectionexpressly provides that “ the son may not demand anything so longas the mother lives ”. Vide Sinnathangachy v. Poopathy again, confirming,that to be the position. Referring back to section 11, then, whoseeffect is to import the provisions of section 9 mutatis mutandis, I thinkit is clear that where the mother dies first, the father is similar^- entitledto full possession of the estate and the son may not demand anythingso long as the father lives. The only two provisos are that the fathershall not marry again and that he shall (importing the provisions ofsection 9) keep the daughters until they marry, and then shall endowerthem ; and neither of these provisos is applicable in the present case.It will be noted that there is nothing in section 9 or 11 of Cap. 51, asthere is in section 37 of Cap. 48, limiting the rights of the survivingspouse to the children’s attaining theri majority.
lUangaratne v. O. E. de Silva.
87
The above view as to the effect of sections 9 and II of Cap. 51 in sucha case as the present was adopted in Chellappah v. Arumugam1, wherethe widower’s interest “ till either death or remarriage ” was recognized.That case was decided in 1900, but it has never been overruled.
I have been referred by Mr. Shanmuganayagam for the appellantto the case of Theagarajah v. Paranchotipillai, reported in II N. L. R.at page 46 and (in review) at page 345. That was a case where, as here,the mother left property and predeceased her husband. It was held,on an application for letters of administration to the estate of theirdaughter, who died subsequently in infancy, that, the daughter havinginherited the property from her mother, the mother’s next of kin wereher legal heirs, and not the father. That no doubt is the true position ;property derived from the mother devolves on her daughter and, shouldthe latter die without issue, will revert to the mother’s heirs and not tothe father or his heirs. But that is a question of the devolution of theultimate and absolute title. Admittedly, the father would inherit noabsolute title to the property. But nothing in that case decided thatthe devolution should not be subject to the father’s life interest in theproperty. Accordingly Chellappah v. Arumugam remains the unchallen-ged authority on the subject of the father’s life interest, where the marriagetook place before 1911. Reference has also been made to Annapillai v.Saravanamultu2, but that case was one where, by reason of the marriagehaving taken place after 1911 the provisions of the latter Ordinance,Cap. 48, applied. It may well be, as was there suggested, that in sucha case section 37 of Cap. 48 has impliedly “ repealed ” section 11 ofCap. 51. But only in respect of cases to which Cap. 48 is applicableat all, that is to say, only in cases which are not excluded from its operationby section 14 thereof.
For the above reasons I hold that the respondent is entitled to posses-sion of, and, unless he remarries, to a life interest in, the land in dispute ;and this appeal must be dismissed with costs.
Appeal dismissed.