WIJEYEWARDENE A.C.J.—A.nnam v. Hath travelupillai.
1948Present: Wijeyewardene A.C.J. and Jayetileke S.P.J.ANNAM, Petitioner, and KATHIR AVELUPILLAI et al.,Respondents.
S. C. 561—In the matter of an Application for Revision in D. C.Jaffna, 2,650.
Tfiesavalamai—Property derived from the father's side—Right of mother—
Persons “ above enumerated ”—Section 27—Chapter 48—Part III.
Where a woman subject to the Thesavalamai died leaving her motherand cousins on the father’s side—
Held, that the cousins were entitled to succeed to property derivedfrom the father’s side to the exclusion of the mother.
Held, further, that the mother was not one of the persons “ aboveenumerated ” within the meaning of section 27 of the Jaffna MatrimonialRights and Inheritance Ordinance.
Application to revise an order of the District Judge, Jaffna.S. Sharvananda, for the defendant, petitioner.
H. W. Tambiah, for the plaintiffs, respondents.
Cur. adv. vuU.
August 16, 1948. Wijeyewaedese A.C.J.—
This application involves a question relating to the law of inheritanceunder the Jaffna Matrimonial Rights and Inheritance Ordinance (Legis-lative Enactments, Volume 2, Chapter 48.)
By right of purchase one Saravanaperumal was entitled to three lands:—
Anaivilunthan of the extent of If lachams V. C.
Anaivilunthan of the extent of veedu £.
Payatolai of the extent of If lachams V. C.
I give the names and extents of the lands, as a great deal of confusionhas been caused by the manner in which the plaint and the decree referredto the subject matter of this action. I shall refer to these three propertiesas “ A ”, “ B ”, and “ C ” respectively.
Saravanaperumal died intestate leaving his widow, the defendant, andtwo daughters, Poompavai and Seethangany, and, thereupon, thedefendant became entitled to |A, |B, and i-C and each of the daughtersto JA, fB, and fC. Later, Poompavai died intestate and issueless andher shares of the lands devolved on Seethangany. There is no disputebetween the parties with regard to the devolution of title so far.
Seethangany died intestate and issueless in 1941 and leaving hersurviving her mother, the defendant, and first, second, fourth, and sixthplaintiffs who are four out of the six children of Visagaperumal, a brotherof Saravanaperumal. The remaining two children of Visagaperumal ortheir descendants are not parties to this action.
J. IT. A 83744-1,044 (11/48)
WX JE YE WAEDT3NE A.C.J.—A.nnam v. KathiraveVitpillai.
Seethangany had also purchased in 1936 another allotment of Payatolaicontaining in extent 1£ lachams Y. C. I shall refer to this propertyas “ D
At her death Seethangany was, therefore, possessed of :—
(i.) JA, JB, and £C as Mudusam “ derived from the father’s side
(ii.) £A, £B, and JC as Urumai from the sister, which would thus be apart of the “ remainder of the estate of the deceased ” mentionedin sections 23 and 24.
(iii.) D which would also be a part of the “ remainder of the estate ofthe deceased ” mentioned in sections 23 and 24.
The estate of Seethangany is governed by Part III of Chapter 48by virtue of the provisions of section 14.
The defendant claimed to be the sole heir of Seethangany. HerCounsel sought to support the claim as follows :—The plaintiffs who arechildren of a parental uncle of the deceased could claim a share of theinheritance only under section 27. But the plaintiffs cannot rely on thatsection, as it says that such cousins would be entitled to an inheritanceonly in the circumstance of “ all the persons above enumerated failing ”.Sections 24 and 26 mention the mother who will thus be one of “ thepersons above enumerated ” (vide Markandn v. Vytialingam'1). There isthus no express provision made by Chapter 48 regarding the estate of adeceased person who leaves her surviving her mother and cousins on thefather’s side. Therefore, under section 36 of Chapter 48, the question ofinheritance must be decided under the Matrimonial Rights and Inheri-tance Ordinance (Chapter 47) and by virtue of section 35 of that Ordinancethe mother becomes entitled to the whole estate of Seethangany.
In order to test the soundness of this argument it is necessary toexamine in some detail the scheme of Part III of Chapter 48. Sections15 to 19 refer to certain classes of property a person may die possessedof. Those sections read with sections 23 and 24 show that all theseproperties are classified into three groups :—
(i.) “ Property derived from the father’s side.”
(ii.) “ Property derived from the mother’s side.”
(iii.) “ Remainder of the estate of the deceased.”
Section 20 deals with the right of the surviving spouse of the deceased.All the rules of inheritance given in the following sections are subject tothat right of the surviving spouse. Section 21 states that the right ofinheritance is “ divided in the following order as respects (a) descendants,(6) ascendants, (c) collaterals ”. Section 22 shows children and remoterdescendants have a preferential right. Then we come to a group ofsections dealing with the estate of a person who dies withoutdescendants. The estate of such a person is divided into two parts fordeciding the mode of devolution :—
(а)Property derived from the father’s side ( (i) above) and half the
remainder of the estate ( (iii) above)
(б)Property derived from the mother’s side ((ii) above) and half the
remainder of the estate ( (iii) above).
3 (1917) 20 N.L.R. 216.
WIJEYEWAUDENE A.C.J.—Annum v. JCathiravehipi/lai.
The rules of succession relating to property (a) are given in sections 23,
and 27, while the rules relating to property (6) are given in sections 24,
and 28. Thus, when section 27 proceeds to designate the heirs whosucceed to property (a) of the estate of a deceased person on the failure of“ all the above persons enumerated ”, the persons so “ enumerated ”have to be found by reference to sections 23 and 25 and not by referenceto all the sections 23, 24, 25 and 26 as suggested by the defendant’sCounsel. Those persons would be father, brothers and sisters (full orhalf on the father’s side) and the descendants of such brothers and sisters.The paternal cousins, therefore, of Seethangany would be entitled toclaim a share of the inheritance, as the mother of Seethangany is not oneof the “ persons above enumerated ” within the meaning of section 27.The interpretation I have given to section 27 receives support from theprovisions of section 30. That section enacts, “ on failure of kindredon the father’s side property derived from that side shall devolve on themother That shows clearly that “ property derived from the father’sside ” does not devolve on the mother so long as there is a kinsman livingon the father’s side. The interpretation favoured by the defendant’sCounsel would make section 30 irreconcilable with section 27.
I shall consider now the case of Marlcandu v. Vytialingam (supra) citedby the defendant’s Counsel. The facts of that case are briefly asfollows :—One Espari Amma died unmarried and without issue, leavingcertain property inherited from her father, Siva Subramaniam. SivaSubramaniam himself inherited the property from his mother, SivaKani. That estate of Espari Amma was claimed by her paternal grand-father, the husband of Siva Kani. His claim was contested by thenearest relatives of Siva Kani. There was no claim by the mother ofEspari Amma, even if, in fact, she was .alive. In upholding the claim ofthe paternal grandfather of Espari Amma, the Court relied on section 27.In the course of his judgment Wood Renton C.J. said :—“ The section isexplicit on this point. That section provides that ‘ all the persons aboveenumerated (viz., children, father and mother) failing, the pro-perty ’ . . . .The defendant’s Counsel relies on the words
within the brackets as an authoritative judicial interpretation of thewords “ all the persons above enumerated The Court was not thereconcerned with the claim of a mother and it is difficult to think that thelearned Judge directed his attention to the question which we areconsidering. He did not have to consider who “ the persons aboveenumerated ” were. It was not disputed that all those persons, whoeverthey might be, were not living at the death of Espari Amma. Moreover,it would have been clearly wrong for him to exclude from the “ personsabove enumerated ” the brothers and sisters (full or half on the father’sside) and their children, if he was thinking of giving an interpretation ofthe words “ all the persons above enumerated ”.
For the reasons given by me I hold that the first, second, fourth andsixth plaintiffs are each entitled to 1/16A, 1/16B, 1/16C, and 1/12D.
There is another matter for which I think it prudent to make someprovision in this judgment. The defendant claimed a “ sum of Rs. 460being the amount due to the defendant from the estate of the saidSeethangany on account of settling the mortgage debt (i.e., a mortgage
52CANEKERATNE J.—&itva v. Kavanihcuny.
on lands A, B, and C) and Es. 2,100 being amount due to the defendantas funeral and testamentary expenses The plaintiffs in their replica-tion admitted their liability “ to pay the defendant their share of thesum of Es. 722 due to her as shown by the account filed by her inTestamentary Case No. 198 P.T. (in which the estate of Seethangany isadministered)”. The decree entered in this case is silent on this point.I think it safe to make a reference to that liability in the decree in thiscase.
I direct that decree be entered declaring the first, second, fourth, andsixth plaintiffs entitled each to 1/16A, 1/16B, 1/16C, and 1/12D andordering each of them to pay the defendant one-sixth share of Rs. 722.The plaintiffs will be entitled to costs here and in the District Court.
Jayetjxeke S.P.J.—I agree.
ANNAM, Petitioner, and KATHIRAVELUPILLAI et al., Respondents