073-NLR-NLR-V-18-NAGARATNAM-v.-MUTTUTAMBY-et-al.pdf
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Present: Ennis J. and Shaw J.KA&ABATNAM a. MUTTUTAMBY ei al.
IMS.
19G—D. G. Jaffna, 9,651.
Teeswelwnair—Inheritance—Properly inherited by grandson (daughter's sen)on death of grandfather—Grandson dying issueless—Do both unclesand aunts inherit the property of grandson t
A died leaving frim surviving two sons B and C, a daughter D,and a grandson E (by a deceased daughter).
Held, that under the Tesewalemai the property which devolvedon £ on the death of A was inherited on the death of £ issuelessequally by B, C, and D, and not by B alone.
T
HE facts are set out in the judgment of the learned DistrictJudge (M. S. Sreshta, Esq.):—
Itiscommon ground(videthe pleadings and theadmissions on the
dateoftrial)that dielandoriginally belonged tooneManikavasagar,
who died in 1076 leaving a widow, Mannipillai, who died on October10,1805. Manikavasagar had two daughters,Aminipillai and Paru*
pathypathinipillai,and twosons,Kanapathipillai andPonnambalam.
predeceased Manikavasagar, leaving a son, Theivanathan,whodied in1898. Ponnambalam died on September20,1896* leaving
a daughter, Nagaratnam, who is the plaintiff, and who was a minorwhen Mannipillai died and attained majority in 1907. Nagaratnamis married to the third defendant.
Itisalsocommongroundthat on the deathofManikavasagar,
Theivanathan (thesonof Aminipillai,who wasdead), Parupathy-
pathxnipillai. Kanapathipillai, andPonnambalam eachinherited a
one-fourth share of this land
The dispute is as to Theivanathan*s one-fourth, which according to theplaintiff devolvedon Theivanathan’suncles, Kanapathiand Ponnam-
balam, and which according to the defendants devolved on Theivana-than's aunt, Parapathypathinipillai
The plaintiff's contention is that Theivanathan having inherited theone-fourth share directfrom Manikavasagar, thatone-fourth share,
on Theivanathan’sdeath, asmudusam property devolvedon the male
relations, Kanapathi andPonnambalam. Thedefendants’ contention
is that this one-fourth must be regarded as the chtdenam of Amini-pillai and should go to her surviving sister Parapathypathinipillai, thefirst defendant.
Both the parties rely on the principle that males inherit from malesand females from females, which under the Tesawdlamai is supposedto govern the devolution of property by inheritance.
But the plaintiffdoesnot go so faras tosay that because Theiva-nathan was a malehisone-fourth shareshouldgo toa male, for then
his one-fourth would go to bis nearest male relation, his father. Buthe says that this one-fourth ' having been derived from Manikavasagar
9—J. If. A 90003(8/50)
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ms.
VoganUnam0. Muttu-temby
it should devolve on the latter'B male heirs,vie., Kaaapathl and
Ponaambalam.
To decide the question involved, it is desirable to ascertain whetherand to what extent the principle ** males inherit from males and femalesfrom females '* governs the devolution of property by inheritance underthe Tesatoalamai.
Originally the husband’s property (mtcdusem) devolved on his sonsonly, and thewife'sproperty (chidenam) wasdistributedamongthe
daughters as dowry. Thusthehusband'spropertyalways remained
with the maleheirs and thewife's property with,the female heirs.But,
as shown in section1, sub-section2,of T&malamai, thisrulegradually
fellintodisuse, the dowry being given tothe daughtersindiscriminately
from the chidenam of the mother and the mudusam of the father. Itfollowed as a corollary that the sons inherited what remained of boththe mudusam of theirfatherand the chidenamof theirmother.The
oldlineof division between mudusam andohidenam. was obliterated so
far oe inheritance by children was concerned.
Whatever force the principle inquestionmay havehad with regard
to inheritance collaterally or in the ascending line, it does not governinheritance in the descending line (any doubt on this point is cleared bythe decision in Chellappa v. Kanapathy *).
i
The law regarding inheritance collaterally in. the ascending line isto be found in section 1, subsections 5 and 7. of the Tesotoalamai.Sub-section 5providesthatwhen a downeddaughterdied without
issue her property indisputably devolves on her dowried sisters, theirdaughters, and granddaughters; if none of them be in existence, thebrothers, their sons, andgrandsonsinherit.Sub-section 7provides
th&6when a son dies hispropertyisinherited in like manner, thatis to
say, if he has no issue hisbrothers, theirsons, andgrandsons inherit,
failing them, his sisters, their daughters, and granddaughters inherit.The word “ indisputably " in sub-section 5 should be noted. It showsthat the law stated was a well-recognized one. It cannot be said thatthis law was the ancient one,andfell intodisuse likethe law regarding
the devolution on children of the mudusam and chidenam. If it hadfallen into disuse, the word “ indisputably" would not have beenemployed. Moreover, the latter part of sub-section 5 shows that thelaw regarding collateral succession, just enunciated, was in existence,although the rule as to dowries being distributed only out of theohidenamwas no longer observed. For, insocking heirsin the ascend-
ing line, it is stated that the dowry must be split into its componentparts of mudusam, ohidenam, and tediatetam. . Tho necessity 'or such adivision shows that when “ indisputably " sisters, their daughters, andgranddaughters inherited from a deceased dowried woman, dowrieshadceased to begivensolelp outofthe chidenam.
As regards succession in the ascending line, in default of descendantsandcollateral heirs,thepropertyofadowried daughtermustbesplit,
asI have said, into its component partsof mudusam,chidenam, and
tediatetam. If the parents are dead, the father's brothers, their sonsjand grandsons inherit the mudusam and half of the tediatetam, andthe mother's sisters, their daughters, and granddaughters,' inherit thechidenam and the remaining half of the tediatetam.
1 (1914) 17 N. L. R. m.
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Although with regard to this rate the word “ indisputably ’’ is not <916.aged, as it is contained in the same sab-section as the role regardingoollaton) succession, we may certainly infer that the rale regarding Mtattusuccession inthe ascending line wasas" indisputable ’*andweD tamby
recognized as -the rule regarding collateral succession.
The due to the desire to beep the paternal property among the malenext of kinofthefatherand thematernal property amongthe female
nest of kinofthemotheristo befound in the fact thatamong the
Tamils, as among the Hindus of India, the joint family system existed;a daughter, when she married, ceased to be a member of her father'sfamily, but became a member of her husband's family—-site went outof her old family entirely, and could not, therefore, inherit from eitherher brothersormale cousins.Butshe could inherit fromher sisters,
because theylike herwerenolongermembers of her father'sfamily, and
for similar reason she could inherit from her female cousins.
It is to benoted that when a downedwoman died issuelessher sister
was the heir;if the sister was dead andhada daughter, theniecewas
the heir; butif the sister once inheritedtheproperty, on herdeaththe
devolution ofthepropertyfollowedthe ordinaryrule ofdevolution;
that is to say, her sons as well as the undowried daughters inheritedthe property. (Seesection 1, sub-section 14, paragraph 2.) This
sub-section no donbt says that the sons of the sister will inherit all her-property, but this must be read with the rest of the Tesawalanuti, fromwhich itis clear thatwhat wasmeantwas that thesonsalone will
inherit it, being assumed that the daughters had been already downed.
Similarly, once a downed woman's heir in the ascending lioo hasinherited her property, the rule ft6 to females inheriting from femalesis superseded by the ordinary rules of succession.
– It is also, to be noted that the Tetawdamai speaks only of downeddaughters andofsons, andmakesno mention ofundowrieddaughters.
This is because amongthe Tamilseverywoman most marry,and it Is
consideredthe duty ofparents togivetheir daughtersin marriage. It
is also considered the duty of the parents to set apart property to begiven to each daughter as dowry. The possibility of a woman notmarrying or not receiving a dowry was therefore not contemplated inthe Tesatoalomai. We may, therefore, safely substitute in section 1,sub-section6, of the Tesawalamaitthe following words:14 Ifevery one
of the daughters has received a dowry or has inherited property* fromher parents"forthe words44 If ail the daughtersare married in the
manner above stated and each has received the dowry then given bytheir parents."
The nett result of the examination of the sections of the Tesawalamatrelating to inheritance is thus that the role as to males inheriting frommales and females inheriting from females is not observed in thedescending line, hut is observed in the collateral line, and is observedin the ascending line after ascertaining the portion derived from thefather and that portion derived from the mother.
JJow, there is nothing in the Tesawalamai to justify our inferringthat when aperson dieswithoutdescendants orcollateralheirs Kus
property should revert to the source from which it was derived, what-ever source may be. In other words, there is nothing in the Tew*toofnmn* to justify our holding 'that his property must be made to revert
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191S*(o Manikavasagar to ascertain theheirs. SomuchofTheivanathan’s
Nq~ofriflfn property as formed the mudusam ofhie fathershouldgoto hie father
t>. iftiSu-Q16 u alive), and so much of it asformed thechidenamof his mother
tambyshould go to hie mother's female nextof kin; so muchofit as was bis
parents'—tediateiam—should go halfto hisfather and half tohis
mother's next of kin. We must endeavour to find out whioh of thesethree classes of property the property inherited from Manikavasagarshould be put. As Theivanathaninheritedthis property, becausebe
was the son of Aminipillai, whowas thedaughter ofManikavasagar,
we can only call it the ohidenam of Aminipillai. It must, therefore,go to the sole sister of Aminipillai, vis., Parupathypathinipillai.
Wadsworth (with him Arulanandam), for the plaintiff, appellant.—Theivanathan's heirs are his uncles and aunts, and not his auntonly, as contended for by the respondents. The contention thatmales succeed to males and females to females is not recognizednow in connection with casesof thiskind. SeeChellappav.
Kwnapathy 1 and Valipillai v- Saravanamuttu. 2
The new Ordinance (No. 1 of 1911) embodies the old TesawaZamatin most points. See 17 N. L. E. 382. Section 29 of the newOrdinance, it is submitted, is only a re-enactment of the old law.This section bears out appellant's contention.
The District Judge was wrong in treating this as chidenamproperty. .The property was never given in dowry to Theiva-nathan's mother. The property devolved on Theivanathan directfrom his grandfather. On the death of Theivanathan, issueless, theproperty inherited by him from his grandfather must revert to hisgrandfather’s heirs. The grandfather’s heirs are all his children—both his sons and daughters.
The appellant's * construction is more reasonable than therespondents', and is in conformity with the spirit of the recent-decisions.
Balasingham, for the defendants, respondents.—The positiontaken up by the appellant is far different from his attitude in thelower Court. It was conceded in the District Court that either theaunt or the uncles were entitled to the property of Theivanathan.It was common ground that both parties could not inherit his share.The only contention in the lower Court was as to whether the pro-perty of Theivanathan was to be treated as the mother's chidenamproperty or not. If it was chidenam property, then there was noquestion as to the aunt being the sole heir.
The property devolved on Theivanathan by right of his mother,,and has therefore to be treated as chidenam property. Propertyinherited by a wife devolves in the same manner as dowryproperty. See Atherton's Tesawalamai, s. 2 {Muttukintna 727).Theivanathan's mother was married, and has to be treated, as adowned daughter. See 17 N. L. R. 244. The property came
» (1*14 17 N. L. R. m.
* (1914) 17 N. L. R. m
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to Theivanathan by Tight of his mother per stripe*, and has to be 1915,treated therefore as the mother's dowry property.Xayaraiium
[Ennis J.—Section 15 says that on the death of a spouse theproperty which that spouse inherited from the father goes to hisnearest relations, and the property which that spouse derived fromthe mother to the mother’s nearest relations. There is nothing toshow that it goes to the mother’s sisters only.] Section 15 doesnot contemplate a case of this kind. [Ennis J.—But the principleis the same.] The words "nearest relations ” is a mistranslationfor “ heirs." The Tamil text makes it clear.
[Wadsworth.—It has been held that we cannot look into the Tamiror Dutch text, and that we must confine ourselves to the Englishtext as printed in the Ordinances.]
The new Ordinance (No. 1 of 1911) does not embody the oldTesawalatnai. There are several points in which the law has beenconsiderably altered. The new Ordinance gives the order of suc-cession thus: descendants, ascendants, and collaterals. The oldOrdinance prefers collaterals to ascendants. The new Ordinanceis not a guide to a decision of this case.
If the mother was alive and had inherited the property and thentransmittted it to Theivanathan, there can be no doubt that onlythe aunt would have been the heir. Why should it on principlemake any difference if Tbeivanathan's mother predeceased him ?
Counsel also adopted the argument of the District Judge set outin his judgment.
Cur. ado. vtdt.
July 5, 1915. Ennis J.—
In this appeal the only point argued was as to succession underthe Tesawdtamai.
In 1876 one Manikavasagar died, leaving a daughter (seconddefendant), a son Kanapathipillai (fourth defendant), another sonPonnambalam, and a grandson Theivanathan by a daughter whohad predeceased him. His property, the land in question, wasdivided equally between the four.
In 1893 Theivanathan died unmarried, and the present disputeis as to the persons entitled to inherit.
The second defendant is the wife of the first defendant. Thethird defendant is the husband of the plaintiff, Nagaratnam, who isa daughter of Ponnambalam. The plaintiff claims that the sons ofManikavasagar inherited to the exclusion of the daughter, whilethe second defendant, the daughter, claimed that she inherited tothe exclusion of the sons. On the appeal counsel for the appellant,however, submitted that all the children of Manikavasagar inheritedequally, and abandoned his claim to a greater share. There isnothing in the Tesawalamai directly in point. Clause 1 of section 1states the ancient rule regarding inheritance to property broughttogether in marriage. It divides such property into three classes:
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1916.
Bum ib J.
Nayssratoai0. MuUu-tamby
mudueam or inherited property brought by the husband, chidenamor dowry brought by the wife, and tediatetam or acquired property.By the ancient rule mudusam property was inherited by the sons,the daughter received dowry from the mother's property, and theacquired property was equally divided between all the childrenirrespective of sex. Clause 2 of section 1 shows that a changewas introduced, and the ancient rule of succession was modified,because it became the custom to take the dowry of the daughtersfrom any of the three classes of properly. In consequence of thischange it has been held that undowried daughters inherit equallywith sons {Ghellappa v. Kanapathy l); that for purposes of inheritancethere is no distinction between married and unmarried daughters(Kudiar v. Sinnar2); and that where a man dies intestate andissueless leaving nephews and nieces by a deceased sister, bothnephews and nieces inherit (Valipillai v. Saravanamuttu 3).
Clauses 1 and 2 of section 1 deal only with property broughttogether in marriage. In the present case the property does notfall within that category, as Theivanathan was not married. Heinherited the property from his maternal grandfather after the deathof his mother. With regard to the devolution of sueli propertythe Tesawalamai is silent. Clause 15 of section 1 is the nearestapproach to a rule of succession in such a case. That clauseprovides that on the death of one of two married persons withoutissue: if the husband, the property which proceeded from his fatherreturned to the father's “ nearest relations," while his mother'snearest relations took any property which was originally the dowryof the husband's mother, the father's nearest relations and themother's nearest relations each taking a one-fourth of the acquiredproperty. Similarly, if the wife died, all she inherited from herfather returned to her father’s " nearest relations," and her mother'sdowry to her mother's “ nearest relations," half the acquired pro-perty being divided between them. It is particularly to be observedthat in this clause the heirs of the wife in respect of her mother sdowry are the mother's " nearest relations, " and no exclusion is madein respect of sex, which is not the case in the second paragraph ofclause 5, which deals with the devolution of the down* of a wife whodies without issue. It would seem, therefore, that the rule for thedevolution of inherited property as distinct from chidenam (whichword appears to apply only to dowry given a wife on marriage) maybe gathered from clause 15, and under that clause the wife's propertyinherited from her father goes to the father’s “ nearest relations,"and there is no distinction of sex when the heirs are named. Itwould seem that inherited property devolving in the ascending linegoes back to the nearest relations, iirespective of sex. )f the imme-diate ancestor through whom the property was inherited.
i (iM4) 17 x. t. a. m.3 (Z9«> 17 jy. t. r. m.
* (1914) 17 N. L. R. 381.
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This view of the Tesavoalamai rule for the devolution of such iWB.inherited property finds support in the provisions of Ordinance
No. 1 of 1911, section 29. Although that Ordinance does not apply
in the present case, it presumably reproduced as far as possible theexisting custom.tamby
I see no reason to extend the ancient rule laid down in the Tesa-walamai for the devolution of property which was distinctlychidenam to any other kind of property. The ancient ruleitself was modified in the Tesawalamai in 1707, when the reason forits application was disappearing. The Supreme Court has giveneffect to the modification, and the Ordinance No. 1 of 1911 nowestablishes the altered rule.
The learned District Judge in an able judgment found in favourof the defendants, but, in my opinion, he was wrong in striving tobring the property in dispute into one of the categories into whichproperty brought together in marriage is classified.
I would set aside the decree. Judgment should be entered for theplaintiff on the basis that the disputed property of Theivanathandevolved upon his maternal uncles and aunts equally. The caseshould go back for decision as to damages. I would give theappellant costs of .the appeal.
Shaw J—
This case raises a question of succession amongst the Tamils ofJaffna.
One Manikavasagar died in 1876, leaving two sons, Kanapathi-pillai and Ponnambalam, and a daughter, Parupathypathinipillai.also a grandson, Theivanathan, who was the son of another daughter.Aminipillai, who had predeceased him. Each of these four personsinherited one-fourth share of the property.
Theivanathan died unmarried in 1893, and the question in disputeis who succeeded to the property that had come to him from hismaternal grandfather Manikavasagar.1
The District Judge has held that the property is chidenam property,and therefore by virtue of paragraph 1 of section 1 of the Teeawala-mai is inherited by the female heirs exclusive of the males, and that,therefore, upon Theivanathan’s death .the whole of his interestpassed to his maternal aunt Parupathypathinipillai, to theexclusion of his two maternal uncles or their representatives.
The plaintiff at the trial contended that the property passed to theuncles only in exclusion of their sister Parupathypathinipillai; thiscontention was, however, withdrawn upon the appeal, mid tike claimput forward before us was that the three inherited equally. In myopinion the appeal should succeed. The property was not chidenamor dowry property of Theivanathan's mother, and was not eveninherited by her at all, but -came to Theivanathan after her deathas one of the heirs of his grandfather; the fact that it came from his
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1915* maternal grandfather does not in my view stamp It as chidenamShaw j. within the meaning of paragraph 1 of the Tesawalamai.
– The provisions of the Tesawalamai do not give us much assist-tST ance in the present case, except as showing generally that thePnnby maternal property goes to the maternal – relations and the paternalproperty to the paternal relations. The only paragraphs, via., 14and 15, which refer to inherited maternal property make no mentionof it devolving upon females only, and the trend of the recent casesis to the effect that inherited property both paternal and maternaldevolves on the heirs irrespective of sex (see OheUappa t>. Kanapathy 1and Valipdlai v. Saravanamutbu 3). The Ordinance of 1911, passed toremedy the chaotic state of the law as laid down by the Tesawalamai,provides to the same effect, and may be taken as some guide as towhat the former law is considered to have been.
I agree to the order suggested by my brother Ennis in this case.
Set aside and sent back.