101-NLR-NLR-V-31-ELIYAVAN-v.-VELAN-et-al.pdf
Present: Lyall Grant J. and . Maartensz A.J.ELI Y AVAN a). VELAN et at.
136—D. C. (Inty.) Jaffna, 22,812.
Tesaw&l&m&i—Daughter downed by brother after death of father—Acceptance of dowry—Renunciation of parental estate.
Where, under the Tesawalamai, after the death of the father,a daughter was downed by the brother, the acceptance of’ thedowry by the daughter operates as a renunciation of her right's tothe paternal estate.
HIS was an appeal from a judgment of the District Judge of
Jaffna. The plaintiffs sued for the partition of a landbelonging to the estate of one Vellan Suppan, whose daughter wasthe second plaintiff. The defendants, who were the sons and thewidow of Suppan, contended that the second plaintiff had beendowried by her, brother the ninth defendant, and that she was notentitled to any further claim on' the parental estate. The learnedDistrict Judge dismissed the plaintiffs’ action.
Croos Dabrera, for plaintiffs, appellants.
Subramaniam, for defendants, respondents.
November 11, 1929. Lyall Grant J.—
The firet and second plaintiffs are husband and wife and theyhtstituted this action in the District Court of Jaffna to Partition acertain land. The plaintiffs claimed in right of the second plaintiffbeing the daughter of Vellan Suppan and his wife Nagamutty, andthey called as defendants the widow Nagamutty (eleventh defendant)and the remaining children of Vellan Suppan and Nagamutty.
The ninth, tenth, and eleventh defendants (ninth and tenth beingsons of Vellan Suppan) asserted that all the female children of VellanSuppan had been dowried.
The fourteenth defendant (wife of the ninth) supported thisaverment but. alleged that the whole land had been transferred toher by deed for valuable consideration.
( 357 )
The plantiffs’ right to partition the land obviously depended onwhether the second plaintiff had been dowried. The case went totrial on the following issues: —
Was she dowried by the ninth defendant and her parents ?
Was she dowried by the- ninth and fourteenth defendants at
the request of the eleventh defendant?
Were all the daughters of Vellah Suppan dowried ? It is
common ground that if the second plaintiff has beendowried the case is at an end, as she would then have noright to institute this action.
The learned District Judge came to the conclusion that all thedaughters of Yellan Suppan had been dowried and that the secondplaintiff received a dowry from her eldest brother (the mnthdefendant) and his wife (the fourteenth defendant).
He accepted the evidence furnished by various receipts in the caseof the other daughters, and in the case of the second plaintiff the evi-dence furnished by a formal deed of dowry dated September 16, 1925.
The facts were not seriously disputed, but it was contested thatit was only a daughter who was dowried by her parents who wasdebarred horn the inheritance and that a daughter dowried by herbrother was not so debarred.
This argument was rejected by the learned District Judge, whofound .against the plaintiffs. From this judgment the plaintiffsand the first to the eighth defendants appealed.
It was argued before us that on the death of Vallan Suppan, thewidow had by the Tesawalamai no more than a life interest in theestate and that the fee vested absolutely in the children pro rata atthe death of the father.
Eeference was made to the Jaffna Matrimonial Eights and In-heritance Ordinance, No. 1 of 1911, section 22, and to the case ofMitrugesu v. Kasinathar,1 where it was held that on the death of awife before her husband a half share vests in the heirs of the deceasedwife subject to the Tesawalamai relating to its liability to be appliedto the payment of debts. The other half remains the property ofthe surviving husband.
The judgment merely restates the provisions made by OrdinanceNo. 1 of 1911, section 22.
Section 16 of that Ordinance shows that the subsequent sectionsapply only to persons married after the passing of the Ordinance.
It was admitted that Yellan Suppan and Nagamutty weremarried before 1911. and accordingly section 22 of the 1911 Ordi-nance does not apply to their inheritance.
It was, however, argued on behalf of the appellants that the 1911Ordinance merely recapitulated the existing Tesawalamai andreference was made to section 1, paragraph 9. of that Code.
2-j N. L. F. 201.
1829
LyaixGrant J.
Eliyavan v.Velcm
( 358 ) .
1929
LyaiaGrant J.
Eliyavan v.Velan
Section 9 reads as follows: —«
If the father dies first leaving one or more infant children, thewhole of the property remains with the mother, providedshe takes the child or children she has procreated by thedeceased until such child or children (as far as relates tothe daughters) marry, when the mother, on giving them inmarriage, is obliged to give them a dowry; but the son orsons may not demand anything so long as the mother lives,in like manner as is above stated with respect to parents.
This paragraph appears to me to indicate that on the death of thefather the mother has complete control of the whole of the property'subject possibly to certain restrictions on alienation.
The important point is that, the Code puts an obligation on themother .to dowry daughters.
It does not say, nor can one assume, that the mother has to dowrya daughter from her own share, leaving intact that daughter’s shareinherited from her father.
f The admitted principle of the Tesawalamai is that if a daughteris downed she loses her rights to her parents’ inheritance, andsection 9 is intended to carry this principle into effect after the fatherhas died.
To attain this object it is necessary that the whole propertyshould be under the control of the mother and that any such paymentshould have the effect of discharging the estate from any furtherclaim .against it by a daughter so dowried.
It was however contended that the facts of this case are different.Here the daughter’s dowry was met by a grant of land, not from theancestral estate and not given by the mother, but given out of pro-perty belonging to the brother and his wife and donated by them.
The plaintiffs-appelknts say that such a payment is not dowry.and does not prevent their claiming a share in the inheritance.
I think the plaintiffs are estopped from raising such a contention.They both signed the deed of 1925. That deed conveys to thesecond plaintiff an estate expressly as dowry. The .deed is signedby both the plaintiffs, and in it they say:“ We, the said Maruthan
Elaiyavan and wife Illeduchumi, do hereby accept this dowry. *'
It seems to me clear that the acceptance of that land by theplaintiffs as dowry necessarily implied the renunciation of theirrights to any share in the estate of the second plaintiff’s parents.This result must have been before the eyes of the parties when theyaccepted the gift. There was no other consideration.
I am of opinion that the judgment of the learned District- Judgeis correct, and the appeals are dismissed wdth costs.
Maartensz A. J.—I agree.
,j Appeal dismissed.