045-NLR-NLR-V-20-MURUGUPILLAI-v.-POOTHATAMBY.pdf
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a»i7.
Present : Shaw J.
MURUGUPILLAI v. POOTHATAMBY.
358—G. R. Point Pedro, 17,231.
Tesawalamai Father leaving children by two beds—One-half ancestral
property inherited by children of first bed and one-half by childrenof second bed.
Under the Tesawalamai, upon the death of a father who haamarried a second time, his ancestral property goes one-half to theissue of the first bed and one-half to the issue of the second bed,whatever may be the number of children of the different unions.
In two partition suitsintheDistrict Court, Awasallotted one-
sixth share. In the presentcase A claimed halfshareas the .sole
child by the first bed of his father.
Held, that as the question whether A was entitled to /one-sixthor half of his father’s property was never put in issue in the formerpartition suits, A was not estopped from claiming a half share inthe present case.
^HE facts are set out in the judgment.
Bala8ingham for the appellant.—The children of Valliar takeper capita. All the children are the children of Valliar, and there isno reason for giving the only child of the first wife half and all thefive children of the second wife the other half. Ordinance No. 1of 1911 is in many respects a codification of the Tesawalamai, andsection 24 enacts that the children should take per capita. Unlessthere is a clear provisionoftheTesawalamai tothecontrary, we
must take it that section24re-enacts the old law onthe subject.
In cases of doubt the Roman-Dutch law should be followed. SeePuthatamby v. Mailvaganam.1 Under Ordinance No. 15 of 1876 andthe Roman-Dutch law the children take per capita. It is clear thateven before Ordinance No. 1 of 1911 it was understood thatthe children succeeded to equal shares of the father's inheritance,as the respondent took a one-sixth share when two other landswere partitioned in the District Court. The cases from Mutukisnacited by the Commissioner of Requests were not .judgments of theSupreme Court.
In any case the respondent is barred from claiming more thanone-sixth share, by reason of the decrees in the two partition cases inthe District Court. He was allotted one-sixth in those cases. Theshares of all co-owners are put in issue in the partition cases. TheCourt has to investigate into the title of all the co-owners. Even if
1 (1897) 3 N. L. It. 42.
1917.
( 205 )
Murugu-
piUaiv.
Paothatamby
. No appearance lor the respondent.
»Cur, adv. wit.
December 14, 1917. Shaw J.—
This is a dispute between certain parties to a partition suitregarding one-fourth share of the land to be partitioned, whichformerly belonged to bne Valliar. The parties are Jaffna Tamils,to whom the Tesawalamai applies, and Valliar having died beforeOrdinance No. 1 of 1911 came into operation, their right? of inherit-ance are governed by section 1 of the Tesawalamai.
' Two questions arise: (1) Whether the respondent, who is theonly son of Valliar by his first wife, is entitled to one-half of hisfather’s interest in the land, the other half going between the fiveappellants, who are ohildren of Valliar’s second marriage, or whetherthe children of both beds take equally per capita?(2) Is the re-
spondent estopped from claiming more than a one-sixth share ofValliar’s interest by reason of two previous partition suits relatingto other lands, in which he was allotted one-sixth only of Valliar'sinterest, having rendered the subject-matter of his present claimres judicata ?
The Commissioner of Bequests has determined both questions infavour' of the respondent, and has allotted him half of Valliar’sinterest, or one-eighth of the land, allotting the other half to theappellants, or one-fortieth each.
In my opinion the determination is right on both points. Withregard to (1), paragraph 11 of section 1 of the Tesawalamai makesit perfectly clear that upon the death of a father who has married.a second time, his ancestral property goes one-half to the issue ofthe first bed and one-half to the issue of the second bed, whatevermay be the number of children of the different unions. Thisconstruction is borne out by the cases cited at pages 5-6, 17-18,and 88-84 of Mutukisna.
With regard to ;{2), $he question whether the respondent wasentitled to half or one-sixth of his father’s property was never putin issue in the former partition suits. In those suits he was simplyallotted one-sixth, and took it without demur. The decisions inDingiri Menika v. Punchi Mahatmaya1 and Samichi v. Pieris 8 arenot authorities for holding that an estoppel by judgment has arisen
1 (1910) 13 N. L. B. 59.*(1913) 16 N. L. R. 257.
4 he respondent’s share was not aotually put in issue, he was a party,and he could have put it in issue. He did not do so. He is barredfrom raising the issue againbe tween the same parties, not only as tothe lands partitioned in those cases, but as to all lands claimed byhim as his share of inheritance from Valliar. Counsel cited DingiriMenika v. Punchi Mahatmaya;1 Samichi v. Pieris;3 Civil ProcedureCode, section 207, explanation.
18
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1917.
SaiwX
Murugu-
piiiaiv.
Poothatamby
in the present ease. < The principle of those judgments will be foundvery clearly stated in the judgment of the present Chief Justice inthe latter case at page 263: “All that the law of Englanl or ofIndia or of Ceylon requires for the purpose of constituting res judi-cata or estoppel by judgment is that the issue in question shouldhave been distinctly raised between the same parties appearingrespectively in the same capacity; and should have been directlyand necessarily determined by the former proceedings.”
The question in issue in this case was never raised or determinedin the previous partition suits.0
The decision of the Commissioner is, in my view, correct, and Idismiss the appeal.
Affirmed.