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Feb. 20 > 1911
Present: Hutchinson C.J. and Van Langenberg, A.J.
NAGARETNAM v. ALAGARETNAM et al330—D. C. Jaffna,, 7,262.
Tesawalaraai—Daughters inherit deceased mother's dowry property tothe exclusion of sons—Right of fathers to apportion dowry propertyamong daughters.
Where a woman dies leaving sons and unmarried daughters, herdowry property in respect of which she died intestate is inheritedby the daughters to the exclusion of the sons.
The husband has a right to allot as dowry to his daughters suchportions of the dowry property of his deceased wife as he maythink fit.
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T™ facts are set out in the judgment.
Wadsworth, for the plaintiff, appellant.
Bawa (with him Balasingham), for the defendants, respondents.
The following authorities were cited at the argument :—Valliammaipillai v. Ponnampalam;1 Murugesu v. Vairavan;2Theagaraja v. Paranchothipillai ;3 Theggaraja v. Paranchothipillai; 'Tambyah v. Sinnatankam and another (see footnote, page 63) ;Chapapathy Kurukal v. Sivaprakasapillai et al., ; 5 Muttukisna’sTesawalamai, pp. 112, 147, 157, 89, 87 ; Silva v,_ Silva.6
Cur. adv. vult.
February 20, 1911. Hutchinson C.J.—
Savunthar'pillai, the wife of Edward Spaulding, died in 1885,leaving two daughters, Alagamma and Chellam, and two sons,Rajarati iu and Thambiraja. This action is brought to recovera share in her cl:!denam property, the plaintiff claiming as thepurchaser of their rights from the two sons. The parties arepersons to whom the Tesawalamai apply, and the defendantsclaim the whole property under dowry deeds executed by thefather, Edward Spaulding, after his wife’s death and after he hadmarried again, whereby he gave one-half in 1889 to Alagamma(through whom the first defendant claims) on her marriage, andthe other half in 1901 to the other daughter Chellam, who is thethird defendant, on her marriage with the second defendant.
The main issue was whether the dowry deeds to Alagamma andChellam conveyed title to the shares which they purported to grant.The District Court has held that they did. The plaintiff appeals,and contends that on the mother’s death her four children becameentitled to the property in equal shares, and that the father had noright to give the whole of it in dowry to the daughters, and that,moreover, he had (under clause 11 of section 1 of the Tesawalamai)no power to dowry his daughters without the consent of theirmaternal grandparents or guardians. He contends that when thefather marries again after his wife’s death, it is his duty to find asuitable husband for the daughters, and then to confer with theguardians in giving the dowry ; that these dowry deeds madewithout their concurrence are therefore invalid, and that the law ofthe Tesawalamai is that, where no dowry is given, all the childrenshare equally in their mother’s chidenam property.
The Tesawalamai, as they are set out in our authorized editionof the Laws of Ceylon, are far from clear. But I think that theysay that the ancient law was that the property brought in by thehusband always remained with the male heirs, and the chidenam
■ (1901) 2 Br. 234.4(1908) 11 N. L. R. 345.
(1904) 2 Bal. 141.5(1905) 8 N. L. R. 62 ; 1 Bal.108.
8 (1907) 11 N. L. R. 46,8(1907). 10 N. L. R. 234.
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with the female heirs, and that when a daughter, having receivedher dowry, dies without issue, her dowry (chidemm) devolves onher sisters and their daughters and granddaughters, to the exclusionof her brothers. And clause 11 says that where a mother dies andher husband marries again, the mother-in-law or nearest relationgenerally takes the children, if they are still young, to bring themup, and in such case the father must hand over at the same timewith the children the whole of her mother’s chidenam and half ofthe property acquired during his marriage with her, and when thedaughters become marriageable he must go to the grandfather orgrandmother with whom they are, in order to marry them and givethem a dowry, both from the property, which he has so handed overand also from his own hereditary property. And “ this being done,”i.e., when the daughters are dowried and married, if anythingremains of the property so given up to the relations, the sons thencome in. The principle underlying all this with regard to chidenamseems to be that the whole of it should go to the daughters, whilethe modesium (brought in by the husband) goes to the sons, althoughthe parents may, when they give a daughter in marriage, give herdowry from either the chidenam or the modesiam or both. Therules are primitive, and do not provide for every case, and do notknow anything about formal transfers of title. And in an Ordinarycase, such as this, it may not be easy to say in whom the legal titleis vested, since a notarial deed is now necessary for its transfer intervivos. The father transferred his property to the daughters bynotarially executed deeds ; but possibly the legal title was notvested in him. In my opinion on the death of his wife her dowryproperty vested in her daughters, subject to his right to apportionit between them as dowry on their marriage ; if the dowry deedswere invalid because the legal title was not vested in him, theproperty belonged to them in equal shares.
I think, therefore, that the appeal should be dismissed with costs.
Van Langenberg A.J.—
This is a partition action. It was admitted that the land soughtto be partitioned was the dowry property of Savuntharypillai, wifeof Edward Spaulding, who died in 1885, leaving two sons, Raja-ratnam and Thambirajah, and two daughters, Alagamma andChellam, the third defendant. The plaintiff claims title to anundivided half of the land by purchase from the two sons. Sheallots one-quarter to the first defendant, who is Alagamma’s child,and the remaining quarter to the third defendant. The defendantsdeny the plaintiff’s title to any share of the land, and say thatEdward Spaulding by deed D 1, in 1889 allotted to Alagamma anundivided half share of the land as dowry on the occasion of hermarriage, and gave the remaining half by deed No. 1,305, datedJune 5, 1901, to (he third defendant as her dowry; • Edward
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Spaulding contracted a second marriage on some date prior to 1889.It was contended in the Court below that under the Tesawalamai,which governs the case, on the death of Savuntharypillai, herchildren succeeded to her dowry property in equal shares, and thatit was not competent for Edward Spaulding to alienate his deceasedwife’s property, and that, therefore, no title passed to Alagammaand the third defendant under the dowry deeds executed by theirfather. It appears to have been conceded in the Court below thateach child took a fourth on the death of their mother, and on theother point the learned Judge held that under section 1, sub-section11, it was allowed to the father to deal with his' deceased wife’sproperty in the way that he has done. He accordingly dismissedthe plaintiff’s action, and the plaintiff has appealed.
Mr. Bawa, who appeared for the respondents, while supportingthe finding of the learned District Judge, argued that where awoman died leaving sons and unmarried daughters, her dowryproperty in respect of which she died intestate was inherited by thedaughters to the exclusion of the sons, and in support of his con-tention he cited to us the case of Tambyah v. Sinnatankam andanotherl. In that case the plaintiff claimed to be entitled to a
Feh. 20t 1911
NAGARETNAM v. ALAGARETNAM et al