098-NLR-NLR-V-17-CHELLAPPA-et-al.-v.-KANAPATHY-et-al.pdf
( 294 )
1914.
Present: Pereira J.
CHELLAPl’A r.t al. o. KANAPATHY ct al.
131—J>. (Viavahachchevi, 19,773.
Tesawalamai—Inheritance—Sons ttntl undowried daughters succeed t:omother's property.
Under the Tesawalamai, where a woman died before the cominginto operation of Ordinance No. 1 of 1911, leaving undowrieddaughters and a son. they jointly (and not the undowried daughtersonly) were her heirs at law.
JJlHE facts are set out in the judgment.
Balasingham (with him Arulanandam), for the -plaintiffs, appel-lants.—Under the Tesawalamai, when a woman dies, both her sonsand unmarried daughters succeed to her estate. See Muttukristna’sTesawalamai, 12, 98, 48, 59, 66, 69, 147.
In Nagaratnam v. Akigaratnam 1 the question which the Court hadto decide was whether a husband had a right to allot as dowry tohis daughters such portions of the dowry property of his deceasedwife as he may think fit. It was conceded in this ease {14 N. L. R.€0, see page 63) in the District Court that both sons and daughters
1 (1.911) 14 N. L. R. 60.
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inherited the mother's property equally. The only point at issue inthe District Court was whether the father had a right to allot themother’s property by way of dowry as he thought fit. In Naga-ratnarn v. Alagaratnam,1 therefore, the expression of opinion thatonly daughters succeed to their mother is obiter. In Thiagarajakv. Paranchothipillai2 the only point decided was that propertyinherited by a child from its mother goes on the death of the child tothe mother’s next of kin, and not to the father. The principle thatmales take from males and females from female.; has no applicationto a case of this kind.
The sections of the Tesawalamai indicate clearly that bothsons and daughters succeed equally. Counsel also cited D. C.Jaffna, 1,828.*
Wadsworth (with him Sellathurai), for the respondents.—Na<ja~ratnarn. v. Alagaratnam1 is a direct authority on this point. TheJudges base their decision on the principle that only daughterssucceed to their mother. In 11 N. L. R. 345 the Full Court hasclearly laid down the principle that females succeed to females.Counsel also relied on 4 Tam. 60.
Cur. adv. vult.
June 15, 1914. Pereira J.—
The question in this case is whether the property of Seethassidevolved, on her death, on her three children, Kathirkamar, Sivaka-mai, and Letchimy, or only on Sivakamai and Letchimy. Thesetwo persons were undowried daughters of Seethassi, while Kathir-kamar was her son. The matter really at issue is whether under theTesawalamai the heirs of a woman who dies leaving children—malesand females—are only her undowried daughters, or the sons as well.It would be a hopeless task to attempt to answer this question bymeans of the collection of the laws and customs of the Tamils ofJaffna known as the Tesawalamai. It is a crude and primitivecompilation, which may fittingly be described in the words ofTennyson, used with reference to another collection of laws, as noother than a “ wilderness of single instances;’’ and it is, I may add,with a feeling of relief that one contemplates the fact that practicallythe whole of this ill-arranged and ill-expressed mass of law andcustom has been recently repealed and replaced by legislation onmore modern lines. Cases like the present, of rights of inheritancein respect of the estates of persons who died before the coming intooperation of the legislation above referred to, namely, OrdinanceNo. 1 of 1911, are however still governed by the old law. If Weallow ourselves to be guided by the older reported decisions, therewill be no difficulty in answering the question mentioned above in
i 11911) 14 N. L. R. 60.* (1908) 11 N. L. R. 345
3 S. C. Civil Miri, March 4, 1914.
1914.
Frasnu 3.
CheUappa v.Kanapatky
( 296 )
1914.
PmnuJ.
ChaUappa v.Kanapathy
favour of both males and females. The numerous decisions citedby the appellant’s counsel from Muttukristna’s Tesawalamai arein favour of the view that sons take of the property left by theirmother as well as the undowried daughters. I may mention casesNo. 346 at page 12, No. 804 at page 13, No. 5,614 at page 28, Nos. 109and 261 at page 48, No. 3,228 at page 59, No. 774 at page 66,No. 3,530 at page 69, and No. 2,033 at page 147. But two cases ofmore recent times have been cited on the other side: Nagaratnam v.Alagaratnam 1 and Tliiagarajah v. Paranchothipillai.2 I do not thinkthat these cases are quite in point. As regards the former, whateverobiter has been given expression to, the question really decided waswhether after the death of a wife a conveyance of some propertybelonging to her separate estate by the surviving husband to herdaughter as dowry is an invasion of the rights of the sons. It isclear that it cannot be so, because the wife’s property is liable to begiven away as dowry to daughters who contract marriages, and inthe caBe of such "an eventuality, the husband may well give out ofthe deceased wife’s property, reserving to his sons the whole of hisown property, which, of course, was equally liable to be given awayas dowry (see paragraph 2 of section 1 of the Tesawalamai Code).In the latter case cited above, the question was how the property ofa female child inherited from her mother would go on her deathwithout issue and without brothers and sisters. There is a deal ofobiter in the judgments to the effect that the property of males goin the male line and the property of females go in the female line,hut what has been held really is that, owing to the absence of issue,where necessity arises to seek for an heir in the ascending line, theproperty derived from the father reverts to the father and hisrelations, and the property derived from the mother to her and herrelations. It is manifest that this rule is not applicable when' an■ heir is to be sought for in the descending or collateral line, becausethe question formulated by the Judges to be answered is whetherthe property of a daughter dying after her mother without issue orbrothers or sisters is inherited by the father. The idea, expressed inthe obiter referred to above, of the property of males being kept inthe male line and of females in the female line can, it is clear, begiven no countenance after what appears to have happened, asstated in paragraph 2 of section 1 of the Tesawalamai Code, in thetime of the Portuguese Governor Don Philip Mascarenha. Untilthen, as stated in paragraph 1, the husband’s property invariablyremained with the male heirs and the wife’s property with the femaleheirs, but the change eSected rendered both the modesium andthe tediatetam liable equally with the chidenam to be drawn fromfor dowries to daughters. In other words, the rule mentioned inparagraph 1 was no longer to be observed. I need say no more onthe subject, because it seems to me that the latest pronouncement
1 (1911) 14 N. h. R. GO2 (1907) 11 N. L. R. 46 and 345.
( m )
of this Court (see 1,323—D. C. Jaffna l) is quite in point on theissue in this case. I agree with iny brother Ennis in all that he hassaid in his judgment in that case.
I set aside the decree appealed from, and declare that Kathirkamarwas entitled to the property of the estate of Seethassi equally withSivakamai and Letchimy, and remit the case to the Court below forfurther hearing.
The appellants will have their costs^in both Courts.
Set aside.
♦
1914.
PSBB1BA J.
CheUappa a,Kanapathy