112-NLR-NLR-V-65-A.-SEENIVASAGAM-Appellant-and-S.-SUBRAMANIAM-and-others-Respondents.pdf
542
SnCNJETAMBY. J.—Seenivaaagam t». 3ubramamatn
1960Present: SiBfiet&mby, J., and L. B, fie Silva, J.
A. SEENIVASAGAM, Appellant, and S. SUBBAjMLANIAM and
others, Respondents
3. C. 587/58 (AS)—D. C. Jaffna, 26 jP.
Thesavaiamai—Acquired property—Right of surviving spouse to give it to a daughteras dowry—Scope—Cap. 51, Pari 1, as. 5, 9.
Where a man -who ia subject to the law of Thesavalaanai dies leaving acquiredproperty, the surviving spouse is not entitled to donate by way of dowry to adaughter, who had married once before, any share of the acquired property whichhas devolved on the other children.
Appeal from a judgment of the District Court, Jaffna.
C. Ranganathan, for Plaintiff-Appellant.
V. Aridambalam, with C. CTieUappah, for 2nd to 4th Defendants-Respondents.
Cur. adv. mill.
December 7, 1960. Seetetamby, J.—
The plaintiff brought this action to partition a land called Sadavakkai-yadi depicted in Plan X, filed of record. He claimed ^ share and allottedto the 1st, 2nd and 4th defendants a J share each. The 3rd defendant isthe husband of the 4th defendant. According to the pedigree, oneVairavanathan was the original owner of this land. It was acquiredproperty and on his death, his wife Sinnachchy became entitled to a halfshare and 4 children Eanapathipiliai, Antnmgam, Walliammai andAnnapillai to the other half share. It as admitted that Annapillai wasdowried and had got married during his lifetime so that the title to halfthe property actually remains in the 3 children. According to the plain-tiff, Arumugam died and his share devolved on the plaintiff. In 1906,by Deed P3, Sinnachchy and her son Kanapafchipillai transferred to Walli-ammai by way of dowry the entirety of the land in suit. The deed oftransfer described the transferred land as “ belonging to the 1st namedof us (Wallaimmai) by right of acquisition share and mudusam of the 2ndnamed of us (KanapathipiUai) and possession Plaintiff’s case is thatthe transfer to Walliammai, therefore, having regard to the recitaloperated only in respect of the wife’s J share and Kanapathipillai’sJ share and that Arumugam’s J share devolved on the plaintiff. Walliammaidied leaving a child by the 1st bed (Saravanamuttu) whose share devolvedon the 1st defendant Supramaniam. She had married a 2nd time andthe children of the 2nd bed are the 2nd and 4tb defendants. The plaintiffgave a £ share to each of these children, namely the 1st, 2nd and 4th defen-dants. The 2nd and 4th defendants contested the action on the footing
SIXNETAilBY, J.—Seenivasagam v. Svbramaniam
543
thatArumugam had no share left for it to devolve on the plaintiff (Seeniva-sagam). The contention was that the widow and son were entitled underthe law of Thesawalamai to dowry a daughter, even on her second marri-age, and that they having done so by executing P3, nothing remained forAmmugam to inherit. One of the points raised by the plaintiff is thatArumugam’s share had vested in Seenivasagam before the dowry deedhad been executed in favour of Walliainmai as Arumugam had died on2nd January, 1906, before P3 was executed. This as a proposition oflaw, it seems to me, is not correct. It has been so held in ThambapiUaiv. Chinnatamby 1 where De Sampayo, J. stated as follows :—
“ but it is contended that, since on the death of a parent the childrenat once inherit the deceased’s property, the surviving parent cannotgive out of the deceased’s property anything more than the daughter’sown share of inheritance, for otherwise the shares already vested by lawin the other children would be taken away from them. This, I think,involves a misconception of the principle underlying the provisions ofthe Thesawalamai in question. That principle appears to me to besimilar to the Hindu idea of ‘ undivided family 5. ”
Later, the same Judge goes on to say that the :—•
“ provisions of the Thesawalamai show that there is no such thing asa vested right by inheritance, and that, even if such language ispermissible, the children can be divested of that right by the willof the parent. ”
I can see no difference in a case where the person seeking to dispute theparent’s right is not a child but a grandchild.
There is, however, another objection taken which it appears to meshould be upheld. It was contended by the learned Counsel for theappellant that while a surviving spouse can donate property by way ofdowry in favour of unmarried children, he or she cannot do so in respect ofa married child. The provision of the Thesawalamai which deals withthis right, where the father dies first is to be found in Chapter 51, Part I,Paragraph 9. It is to the following effect:—
“ If the father dies first leaving one or more infant children, thewhole of the property remains with the mother, provided she takes thechild or children she has procreated by the deceased until such child orchildren (as far as relates to the daughters) marry; when the mother,on giving them in marriage, is obliged to give them a dowry, but theson or sons may not demand anything so long as the mother lives, inlike manner as is above stated with respect to parents. ”
It is to be observed that the mother’s right is restricted to infantchildren, subject to the proviso that she “ takes ” that child, meaningthereby, looks after it and lives with it. What is the meaning to beattached to the word “ Infant ” ? One would, I believe, be justified inassuming that according to the customs and habits prevalent at that time,1 {1315) 18 N. L. R. 348 at page 351.
544SESTNETAMBY, J.—Seenivcuagwn* v. Subramoniam
most girls in Jaffna married before they attains majority. Hence,the use of the word “ infant Be that as it may, it seems to me that thisprovision, in regard to dowry of unmarried daughters would not, in anycase, be applicable to a married child for, ordinarily, on marriage, thatchild would leave her parental home and become a member of thehousehold of her husband. This also is a recognised principle of thelaw relating to an tmdivided Hindu family from which, according toDe Sampayo, J., many of the provisions of the Thesawalamai are taken.In any event, whatever construction is placed on the word “ infant ”, itseems to me that it would not apply to a daughter who has already beengiven in marriage.
In the present case, it is admitted that Walliammai had married oncebefore and it is in respect of the 2nd marriage that Deed P3 was executed.It is more than probable that on her 1st marriage, Walliammai received adowry, and in this connection it is relevant to refer to Section 5 of theThesawalamai. There it is stated that a parent must make good to amarried couple, land gifted to them but which they lose in consequenceof a law suit in the following terms :—
“ The parents …. are obliged to make good the loss of theland, garden or slaves …., for a weil drawn up and executed
doty ola must take effect because it is by this means that most of thegirls obtain husbands, as it is not for the girls but for the propertythat most of the men marry. ”
In my opinion, Deed P3 did not convey to Walliammai anything morethan the rights then possessed by Sinnachchy and Eanapathipillai, namelya | share. The provisions of paragraph 9 referred to above do not applyas Walliammai, in my opinion, is not an infant child. The first defendantalso had filed an appeal in this case, but because of some default incomplying with rules of the procedure, bis appeal has abated. However, asthis is a partition case, this Court is concerned with the rights of theshareholders and it seems to me only right that the 1st defendant tooshould be allotted his proper share. In the result, plaintiff, 1st, 2ndand 4th defendants would be entitled to the land in equal shares.
There was a question raised in regard to possession and the learnedJudge held that the 2nd and 4th defendants had the land to them exclusiveof the plaintiff. He appears to have been influenced to some extent bydocuments 2D2 and 2D3 which were stated to be permits issued by theVillage Headman to the 2nd and 4th defendants for the removal of paddyfrom the land in suit. But 2D2 and 2D3 do not refer to the land in suit.They are permits to remove paddy from a field situated at Jfaravakuri-chchy but on that permit the permit holder has endorsed that he hasremoved paddy from the land in question. This endorsement is self-serving evidence which is of no value whatever: farther, it is not knownwhen this endorsement was made.
The Queen v. Siripina
545
I would accordingly set aside the judgment of the learned DistrictJudge and direct that a decree for partition be entered in terms of theprayer to the plaint. I would allow the appellant the costs of appeal andof the contest in the Court below.
B. HE Silva, J.—-J agree.
Appeal allowed.