087-NLR-NLR-V-74-K.-PATHMANATHAN-et-al.-Appellants-and-A.-AIYATHURAI-and-another-Respondents.pdf
ALLES, J. —Palkmana'.hun v. Aiyathurai
331
1971Present: Alles, J., and Samerawickrame, J.K. PATIIMANATHAN ct at., Appellants, andA. AIYATHURAI and another, Respondents
C. 287168 (F)—D. 0. Jaffna, 221S/LVhesavedamai—Dowry given by father to married daughter after the death of the daughter's
husband—Validity and effect—Thcsaralamai Regulation {Cap. G3), es. 3, 5.
Under 'l'hcsnvalnmai tho question whether n fathers gift to hi3 marrieddaughter subsequent to her marriage is a donation simplicitcr or a postponedfulfilment of an earlier obligation to provide her with a dowry is essentiallydependent on tho facts.
1’, a married daughter of parents who were governed by Thesavalnmai,received by way of dowry certain lands fromlier father. The deed was executedin 1926, ton years after hor husband had died. It stated-that “ for and inconsideration of tho marriage that has taken plttco earlier unto my daughterI’onnammah, widow of Katnalingam of (he satno place and in considerationof the promiso raado by ino to her that I shall givo hor a dowry, I do herobygrant and convey by way of dowry unto hor tho lands mentionedtherein . .
Held, that the deed of 1920, although it was oxccutod ton years aftor tho deathof P’s husband, was a valid dowry deed and not- a deed of donation. Accordingly,under section 3 of tho Thesavalnmai .Regulation (Cap 63), P forfeited all herrights to her mother’s property in the present easo to tho benefit of anotherdaughter. Even assuming that a half shnro of tho mother’s property hadvested in P on her mother’s death in 191-1, tho effect of tho dowry deed was todivest her of all shares in that property and crcnto a forfeiture.
Appeal from a judgment of (he District Court, Jaffna.
C. Ranejanalhan, Q.O., with V. Tharmalingam, for the defendants-appellant.s.
CheUa])pah, for the plaintiffs-rcsponclcuts.
Cur. aiv. vull.April 3, 1971. Alles, J.—
The plaiutiffs-respondents, husband and wife, instituted this action fora declaration that the 2nd plaintiff, Annamtnah, was entitled to the landsdescribed in the schedule to the plaint. At the trial the defendants didnot contest the second land in the schedule and the parties proceeded totrial in respect of the first land only.
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The plaintiff’s case was that by dowry deed P2 of 1909 Sellannna, wifeof Muttu, was entitled to these lands. Sellamma died in 1914 leavingher husband and two daughters, Annainmaand Ponnammah alias Than-gamma. By P3 of 1926 Muttu gave by way of dowry certain lands
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ALLES, J.—Pathmanathan v. Aiyathurai
belonging to him to his daughter Ponnammah and the plaintiffs maintainthat in view of this dowry deed, Ponnammah forfeited all her rights toScllamma’s property and that therefore her sister Annamma becameentitled to the entirety of the lands described in the schedule. Tho1st defendant is the husband of Rajaluxmey, the deceased daughter ofPonnammah and the 2nd and 3rd defendants are their children.
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It has been established that Sellaruma married before 1911 and thattherefore she was governed by the Thcsavalamai (Ch. 63). Ponnammah’shusband died in 191G and the main point for the decision of the Courtwas whether P3 of 1926 was a dowry deed, or whether it was only adeed of donation which would not preclude Ponnammah from inheritinga half share of her mother’s estate. If P3 was a dowry deed she wouldforfeit all her rights to her mother’s estate (Vide S- 3 of the ThesavalamaiRegulations and the decision of Lyall Grant J. in Elivayanv. Velan 1.It has been strongly urged by learned Counsel for the appellant that thefacts militate against the view that P3 can be called a dowry deed. Itwas executed 10 years after the death of Ponnammah’s husband andtherefore did not have the characteristic of a dowry deed, which it wassubmitted should be granted only at the time of marriage or on thooccasion of a contemplated marriage. In support Counsel cited thedecision of Basnayake J. in Kandcipjm v. Veeragathy2. This decisionhas however not been followed by Gratiaen J. in the later ease of Thesiger v.Ganeshlingam3 where the learned Judge stated that he was unable toaccept the narrow interpretation in Kandappu v. Veeragathy and heldthat “ tho question whether a subsequent gift by a parent to a marrieddaughter operates and was intended to operate as a donation simpliciter oras a postponed fulfilment of the earlier obligation to provide her with adowry was essentially a question of fact ”. This view was approved byTambiah J. in Murugesu v. Subramaniam*. In doing so Tambiah J.followed the earlier decisions of the Supremo Court in Jlurugesar v.Ramallngam5 and T a mb ip ilia i v. Chinnatamby6. Mr. Ranganathansubmitted that these decisions only applied to cases where the marriagewas in existence at the time the dowry deed was executed and could notin any event apply to a case where it was sought to dowry a daughterlong after her husband’s death and when the marriage had terminated.
It was his submission that- even other systems of law only recognisedthe execution of a dowry settlement cither in contemplation of marriageor during lawful wedlock. Under the Kandyan law a deed granted by theparents in consideration of marriage contemplated the grant of a dowryduring the subsistence of the marriage—Kandappa v. Charles Appu 7—and Voet 23-3-7 (Gane’s translation Yol. IV p. 152) also refers to the givingof a dowry “ before marriage or during lawful wedlock ”. He thereforesubmitted that it would be unrealistic to refer to a deed of donation to amarried daughter 10 years after her husband’s death as a dowry deed.
» (1920) 31 N. L. R. 350.* (10C7) 09 -V. L. R. 532.
1 (1951) 53 N. L. R. 119.3 (1SS1) 4 Tambyah's Reports 17G.
* (1952) 55 N. L>. R. 14.• (1915) 13 A*. L. R. 343.
1 (1926) 27 24. L. R. 433 at 433.
Al.bliS, •!.—I’uthman-lihan v. A iyal/mrai.'533
While Counsels submissions arc not. without attraction, T think thatsince the customary law of the Tesawalnmni recognises “that daughtersmust content themselves with the dowry given them by tlie act or doty
ola, and arc not entitled to make any further claim on the estate
(S. 3) and “ the daughters are at liberty to induce their parents to increasethe doty “ (S o) the term dowry deed under the Tcsawalamai must begiven a liberal construction. This was an eminently reasonable methodwhercbj’ under the Tesav.alamai adequate provision was made by Hieparents for botli married ami unmarried daughters. Since the question,whether a subsequent gift to a married daughter is a donation simpliciteror a postponed fulfilment of an earlier obligation to provide her with adowry, is essentially dependent, on the. facts, it is pertinent to considerthe intention of the donor. According to the recital in P3 Muttu states—
" that, for and in consideration of the marriage that has taken placeearlier unto my daughter Ponnammah, widow of Ramalingam of thesame place and in consideration of the promise made by me to her thatI shall give her a dowry, 1 do hereby grant and convey by way of dowryunto her the lands mentioned herein . . .
The recital in P3 which was made in 1926, when there was harmonybetween 3fu-t-t.ii’s two daughters, make it abundantly clear that Muttuintended to make provision for Ponnammah who was a widow at thetime in pursuance of a fulfilment of an earlier obligation to make provisionfor her. I therefore take the view that, on the facts of the instant case.P3 was a dowry deed and Ponnammah forfeited her rights to her mother'sproperty. Even assuming that a- half share of this property had vestedin her on her mother’s dealh in J014, Hie. effect of the dowry deed wouldbe to divest her of nil shares in that property and create a forfeiture.
There remains for consideration two further matters which wereraised by Counsel for tlie appellant—prescription and estoppel. Until1962 when this action was instituted and even during the trial theplaintiffs and Ponnammah lived in the same house on the premisesin suit. On 2nd February 1952 three deeds. Dl. D2. and D3 wereexecuted by the parties. DI was a dowry deed executed by the plaintiffsin favour of their daughter Alagnialar. Ponnammah was also a donoron the deed and one of the lands downed on Dl was a land receivedby Ponnammah from her father on P 3. D 2 was a dowry wherebyPonnammah granted to her daughter Bajahixmey certain lands and sherecites as her title to fhe.se lands the deed of dowry in favour of hermother Sellamma in 1909 and the deed given to her by her father Muttu(P3). The 1st plaintiff was a witness to the Deed. D3 is a mortgagebond whereby the plaintiffs and Rajaluxmcy and her husband borrowedmoney froiu the plaintiff's daughter and her husband. In spite of thesedeeds Ponnammah continued to live in the same house with the plaintiffsand there is no doubt that she was in possession but the possession wasnot of such a nature as to create a prescriptive title against Annammah.On the issue of estoppel although D2 is a dowry deed by Ponnammahof the disputed land to Rajnluxmey, tire title recited is that of
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Perianal v. K.arumegan
SeUamma and the 1st plaintiff is a witness to the deed ; it has notmisled the defendants and led them to act to their detriment nor have thedefendants suffered any loss. The 1st plaintiff stated in eridenco thatthe plaintiffs paid off the mortgage debt on bond D 3. This lias notbeen contradicted by the defendants who called no evidence. The plea ofestoppel therefore fails.
In the result the order of the. learned District Judge in the Court belowis affirmed and the appeal is dismissed with costs.
Samerawickrame, J.—I agree.
Appeal dismissed.