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Present: Fisher C.J. and Drieberg J.
FRANCIS DANIEL DAVID v. DAVID et al.
159—D. C. (Inty.) Jaffna, 22,900.
Thesaw,alamav—Females inherit from females—Application of principle tounmarried sister—Conditional gift—Estoppel.
Where, under the Thesawalamai, a married woman died withoutissue, leaving an unmarried sister and three brothers—
Held, that the sister was entitled to succeed to the dowryproperty of the intestate to the exclusion of the brothers.
Held also, that- where the surviving sister accepted a conditional. gift of the shares of the brothers on the footing that she wasentitled to a one-fourth share, the sister was not estopped fromclaiming title to the whole land.
HIS was an action for declaration of title to one-fourth shareof a land, which belonged to one Maria, who died leaving as
her heirs three brthers and one unmarried sister. The parties were
governed by the Thesawalamai, and the question in issue was whetherthe property, which was dowered on Maria by parents, devolved onthe brothers and the sister in equal shares, -or solely on the sister.The learned District Judge held that the sister was estopped fromclaiming title to the whole land by reason of the fact that she hadbeen a party to certain deeds with the brothers on the footingthat she was entitled to only a one-fourth share.
H. V. Perera (with Subramaniam), for defendant, appellant.—Property in dispute was that of Maria. She died leaving oneunmarried sister, Elizabeth, and three brothers, John, Francis, andBenjamin. Property devolved on Elizabeth alone to the exclusionof the brothers, vide Kuddiar v. Sinnar.1 Females succeed tofemales.
The transfer P 2 of March 7, 1900, by one of the brothers,Benjamin (first defendant, administrator of Maria's estate), pur-porting to give a fourth share each to Elizabeth and to the threebrothers is invalid in law.
P 2 being invalid, title to the whole property vested in Elizabeth.
The donation P 3 by the three brothers on November 19, 1904,of each of their one-fourth share to Elizabeth on certain terms andconditions transferred nothing in effect, since title already vestedin Elizabeth.
Elizabeth has dealt with the property in part : this does notpreclude her title to the whole. The brothers have not dealt withtheir shares at all since 1904. Defendant claims title from Elizabeth.
N. E. Weerasooria (with Gnat %'pragasam), for plaintiff, respond-ent.—Cases quoted refer to devolution of property to married
sisters; to the exclusion of brothers. In the present case Elizabeth
was not married at the time of Maria’s death.
P 2 is valid; P 3 also valid; P 3 was acquiesced in by Elizabeth,who signed it. Only one brother consented to marriage of Elizabethaccording to terms of P 3 ; shares of two brothers did not vest in her.
Elizabeth dealt with only her share and one brother’s share—and is estopped from claiming anything more. The two brothers*shares remained with them : they now claim it.
November 4, 1929. Fisher C.J.—
The first point in this case is whether on the death of Maria,leaving three brothers and one unmarried sister Elizabeth, theproperty with which Maria had been dowered devolved upon thethree brothers and the sister in equal shares, or on the sister solely.The learned Judge held that it devolved on the sister only, and Ithink that that conclusion is right. De Sampayo J. in his judgmentin Kuddiar v. Sinnar2 says:—“ One general rule of the Tesawalamaiis that males succeed to males and females to females, and1 17 N. L. R. 243.2 17 N. L. R. at p. 244.
FrancisDaniel Davidv. David
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FrancisDaniel Davidv. David
accordingly it was held in Thambar v. Ghinnatamby 1 that where anunmarried woman left a married sister and brothers, the sistersucceeded to the exclusion of the brothers. ” Again, Grenier J.in his judgment in Thiagarajali v. Paranchotipillai 2 says: -—“Thereis thus recognized ■ by the Tesawalamai a principle regulatingintestate succession, which may be described as a fundamental one,that males inherit from males and females from females/’
The general principle that females inherit from females must,in my opinion, be taken to apply in this case. The fact thatElizabeth was unmarried at .the time of Maria’s death seems to beno reason for holding that the principle does not apply. Sub-section (6) of section 1 of the Tesawalamai supports the view thatElizabeth succeeded to the entire property. That section states: —“ Although it has been stated that where a sister dies withoutissue the dowry obtained by her from her parents devolves to herother sister or sisters '' and goes on to deal with a case in whichthe deceased sister leaves her mother surviving her who has “ inthe meantime become a widow and poor.” That being so, in myopinion the contention that the legal title for the property remainedvested in Elizabeth, who sold her interest to the defendant-appellantunder circumstances to which I shall hereafter refer,, is perfectlysound. The learned Judge was of opinion that Elizabeth had” come to an understanding with her brothers as to the rights ofinheritance, ’' and on that footing he held that in the events which.had happened she must be taken to have been entitled to onlyone-fourth of Maria’s property. The subsequent dealings with theproperty were, firstly, a transfer, 7/ *2, dated March 7, 1900, by one•of the three brothers, the first defendant, Benjamin David, purportingto act as administrator of Maria, by which the property wasconveyed to the three brothers and the sister “ in equal shares,”that is to sav, one-fourth share to each of them. At that timeElizabeth was a minor, but in any case the transfer could not affectthe title which had devolved upon her on the ’death of her sister.The next document, P 3, dated November 19, 1904, purports to be atransfer by the three brothers of their respective one-fourth sharesto their sister. It contained the following provisions: —
“ In case if the said Elizabeth Muttammah were to marry inproper way according to the wish of the said John David,Francis Daniel David, and Benjamin David, and whenshe gets our consent in writing this donation will holdgood and be a valid one; otherwise we make it invalid.
41 After .obtaining the aforesaid consent if Elizabeth Muttammahwere to marry, we do hereby agree and undertake that all:the. above-described properties will be her dowry. 1
1 (1903) 4 Tomb. 60.8 11 N. L. R. 46. .
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" And know aJi men by these presents that I, the said Elizabeth
Muttammah, do hereby accept this donation with gratitudeand with my full mind subject to the above-sai.d conditionsand in testimony thereof I do set my signature hereto. ”
By that document the three brothers were in fact giving nothingto Elizabeth which they had the right to give, and that being soit would require very strong evidence to show that Elizabeth byexecuting that document was estopped from denying the title bfher three brothers to three-quarters of the property. In fact, oneof the brothers, John David, arranged Elizabeth's xnarriage for her,and though there was no consent in writing by the other two, there wasno reliable evidence to show that at the time of the marriage theother two brothers really took exception to it. But the constructionof the whole document by which the so-called transferors conveyedthe property to Elizabeth, subject to the conditions s6t out above,clearly shows that it did purport to be a transfer to her and couldnot of itself operate as a re-transfer in the event of Elizabethmarrying without the consent of her brothers. .The document. was not a family arrangement with mutual concessions. Itpurported to convey other properties besides the property indispute, and with some of these Elizabeth undoubtedly dealt onthe basis of their being her absolute property. Certain documentsand pleadings were relied upon as showing .that Elizabeth actedon the view that the two-fourths of the brothers who had notconsented to her marriage did not belong to her. But there wasno document to show that these two brothers dealt with this two-fourths of their own and, in my opinion, Elizabeth did nothingwhich could operate to divest her of the title which devolved onher on Maria's death. Even if she “ came to an understandingwith her brothers, ” as stated by the learned Judge,, a legal titlecannot pass by such a process unless possibly in a case where theperson to whom the property is supposed to have passed hasdone something to his prejudice or altered his position in consequenceto the knowledge of the supposed quasi-transferee which precludesthe latter as against the former from saying that the property isstill vested in him or her.
brandsDaniel Davidv, David
There was a further incident, namely, an action in 1923 by thepresent defendants to partition the properly in which Elizabethand her husband and the present plaintiff were defendants. Thataction was brought because Elizabeth by mortgaging the propertyhad placed it in jeopardy of passing out of the family. Themortgagor had brought an action to enforce his security and theexecution of the decree was stayed pending a decision in thepartition action. . The action, however, was settled, and theminute relating to the settlement is as follows:—(D 3) “ As theplaintiff is buying the share of the second defendant and as a portion
FrancisDaniel Davidv. David
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of the purchase amount having been paid and as the deed oftransfer is to be executed in favour of the plantiff, I move towithdraw the action. ” That was signed by .the Proctor for theplaintiff and by the Proctor for the third defendant, the plaintiffin the present action. The deed of transfer referred to in thatminute was executed on the following day and the third defendant’sProctor was a witness to the deed. It conveyed the property nowin question as Elizabeth’s property to the plaintiffs in the action.It is clear that the plaintiff was bound by that settlement and mustbe taken to have known of all its terms. For these reasons it isclear to my mind that the entirety of the property in question isvested in the defendants, and the judgment of the learned Judgemust therefore be set aside and decree must be entered dismissingthe action with costs in this Court and in the Court below.Drieberg J.—I agree.