043-NLR-NLR-V-33-CHELLIAH-v.-KADIRAVELU-et-al.pdf
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Chelliah v. Kadiratelu.
1931Present: Lyall Grant and Drieberg JJ.
CHELLIAH KADIBAVELU et al.
29—D. C. (Inty.) Jaffna, 7,238.
Thesawalamai—Illegitimatewoman—Intestacy—Dowryproperty—Contestbetween
heirs of mother and husband.
Where awomanofillegitimate birth, subjecttothe Thesawalamai,
died intestate leaving her husband and no issue,—
Held, that the legitimate issue of the mother of the intestate wasentitled tosucceedtoher dowry property totheexclusion of her
husband.
^^PPEAL from an order of the District Judge of Jaffna.
H. V. Perera (with him Supramaniam), for administrator, appellant.
' Hayley, K.C. (with him ThiUainathan), for respondents.
IjYALL GRAN? J.—Chelliah v. Kadiravelu
m
October 14, 1931. Lyall Grant J.—
The question here is whether according to the Thesawalaznai as amendedby Ordinance No. 1 of 1911 the husband of a bastard succeeds to herdowry property in preference to the children of her mother or vice vend.
The answer depends primarily on the construction of section 37 ofOrdinance No. 1 of 1911. The learned District Judge has confessedthat he cannot understand the section and he falls back on the well-known-principle of Thesawalamai that dowry property of a wife reverts in theabsence of children to her own family. The husband has no rights ofinheritance to the dowry property of the widow or indeed to any of herproperty except on failure of all other heirs.
Section 37 of Ordinance No. 1 of 1911 provides that—
“ When an illegitimate person leaves no surviving spouse or descendants,his or her property will go to the mother, and then to the heirsof the mother so as to exclude the Crown."
Section 38 may conveniently be considered here.
It runs: —
"In all questions relating to the distribution of the property of anintestate where this Ordinance is silent, the provisions of the* Matrimonial Eights and Inheritance Ordinance, 1876 andsuch laws as apply to the Tamil inhabitants of the WesternProvince shall apply."
Admittedly, the common law of the Island, i.e., the Roman-Dutch,applies to Tamils of the Western Province.
The Matrimonial Eights and Inheritance Ordinance, No. 15 of 1876,provides as follows:—
" Section 37. Illegitimate children inherit the property of theirintestate mother, but not that of their father or that of therelatives of their mother. Where an illegitimate person leavesno surviving spouse or descendants, lus or her property willgo to the heirs of the mother, so as to exclude the Crown."
It will be noted that this Ordinance makes no provision 'for whathappens when the illegitimate person leaves a mother alive and in thisrespect differs from the Ordinance of 1911.
The 1876 Ordinance refers one to the rules of Roman-Dutch law as itprevailed in North Holland, and Walter Pereira in his Laws of Ceylonppage 481, says that in North Holland all the property went to the relativesof the maternal line. This has to be considered in conjunction with therule prevalent in Zealand which is set out immediately before at page 480:
The Zealand law allowed the relatives of the maternal line to take one^half only, the remainder going to the Crown. If the mother was aliveall went to the Crown and Van der Keesel, 308, from whom Pereirarquoted, does not say that in North and South Holland the rule wasdifferent in this respect.
The law regard Zealand is taken from Grotius II; 31, 4.
It may be mentioned that the South African law, founded on thePolitical Ordinance of 1580, on the States General EdicJ of 1594f anc
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LYALL GBANT J.—Chelliah 9. Kadiravelu
on the modification contained in the Dutch East India Company's Charterof 1661 allows succession by the mother, whom failing, by her children,in preference to the husband.
I do not think it is necessary to consider further in the present casethe question of whether the mother of an illegitimate child can by ourlaw succeed in any event.
The mother is dead and the question we have to decide is, not whether6he can succeed, but whether the collaterals on her side can succeed.That they could do so under Roman-DutcE law is settled By GrotiusII; 27, 28 and Van der Keesel (341). See also de Bruyn’s Commentaryon the Opinions of Grotius, page 366, paragraph 24.
Ordinance No. 1 of 1911, section 37, provides expressly for the successionof the mother and after her of the children in a certain event whichis not- the event here, viz., when there is no surviving spouse ordescendants.
The question therefore narrows itself down to this. Does section 37of Ordinance No. 1 of 1911 introduce an exception to the GeneralRoman-Dutch law by preferring the surviving spouse to the mother’schildren?
The order of inheritance laid down by Ordinance No. 1 of 1911 in thecase of legitimate persons is broadly speaking the same as that prescribedby Roman-Dutch law.
The Ordinance of 1876 gave the surviving spouse one-half of thedeceased’s property. This is an extension of Roman-Dutch law, and itis not repeated in Ordinance No. 1 of 1911, which is therefore less favourableto the spouse.
Under that Ordinance the surviving spouse’s prior right is only to halfthe tediatatem or property held in common, which strictly speakingis not a right of inheritance at all. His right of inheritance'is postponed,as in Roman-Dutch law, to that of all other heirs.
There can be no doubt that descendants succeed in preference to allothers, but it was argued that the prior mention of the surviving spouseto descendants in section 37 shows that the spouse of a bastard is to bepreferred even to descendants, or, if this is not so, it was argued as analternative that a spouse and descendants were preferred as being thebastard's only legitimate family connections.
This view has its fascinations but I do not think If can Re supported.
Section 37 only provides for the case where there is no surviving spouseor descendants.
The case of the succession of a surviving spouse of a bastard is notexpressly dealt with either in this Ordinance or in that of 1876.
We are accordingly referred back to the Roman-Dutch law and on thatlaw there can be no doubt that the mother's children are preferredto the husband.
Only one question remains, whether the husband should remain.administrator. I think the order made by the learned District Judge
DRIEBERG J.—Chelltah 9. Kadiravelu.
176
that administration should be transferred to the first respondent is aconvenient one and I do not think we should interfere with his discretion.1 would therefore dismiss the appeal with costs.
JDrieberg J.—
The matter for decision in this appeal is the succession .to the intestateestate of Parupathipillai who was married to the appellant after thecoming into operation of the Jaffna Matrimonial Bights and InheritanceOrdinance, No. 1 of 1911, and died leaving no issue. Parupathipillaiwas the daughter of Sinnapillai; Sinnapillai was married to Murugesu,by whom she had two children, the first and third respondents. Afterthe death of Murugesu, she lived with Supramaniam and Parupathipillaiwas the child of that union. The appellant stated in his petition thatSupramaniam lived with Sinnapillai when his wife was alive but thisdoes not appear to be one of the admitted facts on which the matterwas argued and it must be taken that Parupathipillai is merelyillegitimate.
The appellant applied for letters claiming to be sole heir and stated,that if he was not, the heirs of Parupathipillai were the first and thirdrespondents and he accordingly made them respondents to the application.The respondents deny that the appellant is an heir; as between them-selves they agree that the property should go to the first respondentas he had given it in. dowry to Parupathipillai and that such propertyshould revert to the donor, but the ground on winch their claim wasbased at the argument is that they were entitled to it under section 28of Ordinance No. 1 of 1911, that Sinnapillai, her mother, being deadthe intestate’s property devolved on the first and third respondents who,it is contended, must be regarded as her hall-brother and half-sister.This section applies to property derived by the intestate from the mother’sside; the bond for Es. 15,000 given to her by the first respondent onthe day of her marriage as dowry—this is not denied—is property derivedfrom her mother's side under section 20 of the Ordinance.
For the appellant, it is said, that the sections of ffie Ordinance precedingsection 37 do not deal with succession by persons affected by the illegiti-macy of an intestate, such cases being governed solely by section 37,and that the first and third respondents, as the heirs of the intestate’smother, cannot succeed as her husband is alive.
The wording of section 37 is open to the construction that on failureof descendants the husband of a wife of illegitimate birth would takethe entire estate to the exclusion of her mother and the mother's heirs,but I do not think this is the correct meaning of the section.
A husband is ordinarily not an heir to the estate of his wife; the halfof the tediatetam which vests in him on the death of His wife does notdevolve on him as 'an heir of his wife- It is a separation of his half of theproperty acquired during marriage which is regarded as common. Theposition is similar to the separation of the haTf share of the survivorof persons married in community of property under the Boman-Dutch law.
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MACDONELL C.J.—Razeeka v. Mohamed Sathuck.
In my opinion section 87 in declaring the right of succession of themother of an illegitimate and the heirs of the mother merely intendedto make this right subject to the rights of the children and the husbandas previously provided for in the Ordinance, that is to say, the right ofthe children to succeed to the entirety and tKe right of the husband<to a separation of a half of her acquired property.
I agree that the appeal should be dismissed with costs.
Appeal dismissed.