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The District Judge (6. W Woodhouse, Esq.) delivered the
following judgment:—
v. Kandiah This is a question whether the half-sister of the intestate or theirmother should succeed to the estate of the intestate where both sisterswere born out of wedlock to different fathers.
By section 37 of Ordinance No. 1 of 1911: “ Where an illegitimateperson leaves no surviving spouse or descendant, his or her propertywill go to the mother, and then to the heirs of the mother so as toexclude the Crown.”
It is admitted that this provision does not apply to this particularcase, because the intestate was married before that Ordinance cameinto force; but the fact that the Legislature has adopted such a provi-sion from the Roman-Dutch law and grafted it to the Tesawalamaiindicates that, as there is no provision in the TesaweHantai for cases ofthis nature, resource must be paid to the Roman-Dutch law rather thanthat a rule be evolved from the general principles deducible from theTesawalamai.
It is true that it is a fundamental rule of succession in Tamil lawthat collaterals have precedence over ascendants ; but it is a questionwhether, for purposes of succession to intestate’s estate, a half-sister,bom to the Bame mother by another father, could he called a'Collateral;I think not. The case would be different if, for instance, the mother’sestate is involved.
I hold thatthis is a case where the R oman-Dut ch law must be applied,and dismiss the application of the added respondents, with costs.
Balasingkam, for the appellants.—Valliammai lived with twomen in concubinage, and has by each a child, namely, Nagamuttuand Marimuttu. Nagamuttu, who married before 1911, diedintestate. The question is whether Marimuttu or Valliammaisucceed to Nagamuttu’s estate. It is clear law that if Valliammaiwas married to the two fathers, the property would devolve onMarimuttu. The law under the Tesawalamai is that collateralsare to bo preferred to ascendants. But the principle of all systemsof law is that the mother makes no bastard. It is a principle ofnatural justice. Even if that principle doeB not exist in the Tesa-walamai, it is the principle of the Roman-Dutch law. When theTesawalamai is silent, the rule is that we should resort to theRoman-Dutch law. (See Puthatamby v. Mailvakanam1 and Teyvarv. Seevagamipillai.2)
But it does not follow that because we resort to the Roman-Dutch law to decide this question, that we should decide the furtherquestion of inheritance also by the Roman-Dutch law. The questionof inheritance must be decided by the Tesawalamai under whichsystem the collaterals are preferred to ascendants.
No appearance for respondents.
1(1W)3N.L.R. 42.
(1906) 2 BtU. 201.
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July 6, 1921. Schkeideb A.J.—
This appeal raises an interesting question as to intestate succession, chanmiigamThe parties are Tamils of the Northern Province subject to <>• Kandiahthe Temwalamai. Valliammai, the second respondent, lived inconcubinage with two men, one after the other, and had twodaughters: Nagamuttu and Marimuttu, the second appellant.
Nagamuttu was married to the first respondent before the JaffnaMatrimonial Bights and Inheritance Ordinance, 1911, came intooperation. She died intestate. It is the succession to hor estatewhich is now in question. By reason of the provision in section 16of that Ordinance, the succession is not governed by that Ordinance.
Her mother and her half-sister each claim to be the sole heir. It isadmitted that the succession should be governed by the Tesawala*mai if it contains the necessary provision, but it is also admittedthat there is no provision whatever in that system of law regardingsuccession to the estate of an illegitimate person. The parties arealso agreed that in the circumstances the Roman-Dutch law doesapply, but they are at conflict as to the extent to which it shouldbe applied. On behalf of the mother the contention is that theRoman-Dutch law should be applied to decide the whole of thecontest . On behalf of the second appellant it is contended thatonly so much of the Roman-Dutch law should be applied as isabsolutely necessary to fill the deficiency in the Tesawatamai.
The learned District Judge has held in favour of the contentionon behalf of the mother. The sister has appealed. The principlesto be deduced from the following oases :—Puihaiampy v. Mailvaka-nam,1 Teyvar v. Seevagamipillai2 Theagarajah v. ParanchothipiUai,aKuddiar v. Sinnar* Nagaratnam v. Muttutamby 6 may be fairly statedto be—
_ (1) That the Roman-Dutch law, being the law generally applicableto the whole Island, applies where the Tesawalamai is silent.
That the Roman-Dutch law does not apply even where theTesawalamai has no express provision if a question can be decidedby general principles deduced from the Tesawalamai. Apart,therefore, from the admissions or the agreement of the parties, thelaw is well settled and clear that it is the Roman-Dutch law whichwould apply in the absence in the Tesawalamai of any expressprovision or of any provision from which a principle could bededuced to decide the contest between these parties. The contestin this case comprises two distinct questions: (i.) In the lawwhat relationship, if any, exists between the deceased and hermother and hor half-sister ? (ii.) When that is ascertained, whatlaw of intestate succession applies, the Tesawalamai'or the Roman-'
Dutch law ?
1 {2897) 3 N. L. R. 42.» {1907) 11 N, L. R. 46 ; {1908) 21 N. L. R. 846,
1 (1905) 1 Bal. Rep. 201.8 {1914) 17 N. L. R. 249.
8 (1916) 18 N. L. R. 267.
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v. Kandiah
As regards the flnt question, the TeeatwaXamai Is altogethersfieut* It is therefore beyond doubt that for its decision we mustresort to the Boman*Dutoh law. The principle that “ the mothermakes no bastard ” is recognized by that system of law. Thatprinciple operates to make the seoondrespondent the lawful mother,and the second appellant the lawful half-sister of the deceased.
The remainder of the contest then resolves itself into the question.Given that the deceased left her surviving her mother and herhalf-sister, who is her heir? According to the oases of theTesawdtamai as expressly provided for this esse, or if a “ principlefor its decision can be drawn from the general provisions of theTesawdlamai” the Boman-Du&dh law has no application. TheTeaauxdamai does contain mi express provision. It declares thehalf-sister the sole heir upon the principle that collaterals excludea&cei*d»3!to—a principle which is the very antithesis of the principled! the Boman-Dutch law which prefers ascendants to collaterals.
It seems to me, therefore, that theappeal must succeed,and thatthe second appellant must be declared the sole heir. It is not asound argument to say that when a contest involves several matters,in regard to some of which a special law has provisions and inregard to others it has not, that because the general law must beresorted to to decide the former matters, the latter should alsobe decided by that general law. The aid of- the general law isinvoked to fill in the omissions of the speoial law, and no more.The only omission in the Tesatoalomai in regard to this case is theabsence of any principle as regards the relationship of personsbom without a lawful father. For the purpose of filling thatomission there was justification for resorting to the general law.That resort to the general law had to be made for that purposeis no justification for not applying the express provisions ofthe special law. Except for very grave reasons, the devolutionof property by intestate succession, which is founded upon theimmemorial customs of a community, should not be departedfrom. I, therefore, set aside the order appealed from, with costsof the lower and of this Court payable to the appellants by bothrespondents. The first respondent is liable personally, and not inany representative capacity.
Eirais J.—I agree.
Appeal allowed.