TAMBAPILLAI et al. v. CHINNATAMBY et al

094-NLR-NLR-V-18-TAMBAPILLAI-et-al.-v.-CHINNATAMBY-et-al.pdf


( 348 )
1915.
Present: Ennis J. and De Sampayo T.TAMBAPILLAI et at. v. CHIN“N’ATAiI]}Y el268—D. C. Jaffna, 7,S15.
Tesawalamai—Bight of father to give a deccit-wl nm! hrr $ properlydowry to the daughters to the exclusion of the xim*.
Under the Tesawalomai a husband can, after his wife's death,allocate lo the daughters by way of dowry all the property of t1*.*deceased wife, to the exclusion of the son*. The property may inso allocated even though a marriage is not actually in view.
T
HE facts are set out in the judgment of-De Sampayo J.f n&follows: —
The land which is the subject of this partition action admittedlybelonged to Tangachchi by right of purchase. Taugachchi wasmarried to Sittampalam, and died intestate in 1885, leaving herhusband and five children, namely, a son, Ohelliah, and two daughters(the fourth and second defendants in this case), and two other eonswho need tiot be specifically named for the purpose of this appeal.The plaintiffs claim a fifth share by purchase in 1910 from Chellu-h.and in their plaint they allot to the second and fourth defendantseach a fifth share. The second and third added parties, however,intervened and claimed a two-third share, allowing the remainingthird share to the second defendant. Their case is that Sittam-palam in 1889 gifted to the fourth defendant as dowry a two-thirdshare of the land, which has now come to them through certainconveyance, and that the remaining third share was similarlydowried to the second defendant. There is no dispute as to theexecution of these dowry deeds by Sittampalam. but the plaintiffsquestion their validity, on the ground (1) that the fourth andsecond defendants being minors at- the time, and the occasion for.the gifts not being any contemplated marriage, the gifts in theirfavour are not dowry, though they are so called in the deed, butordinary donations, and (2) that Sittampalam could not give dowriesto the daughters in derogation of the son’s rights by inheritancefrom their mother Tangachchi. The same points arc urged beforeus on behalf of the plaintiffs, who appeal from the District Judge'sjudgment in favour of the ndded parties.
Bala8intjham. !nr the-appellants.—A father cannor wive in dowryto one daughter more than her proportionate share of her deceasedmother’s property. In Mirniffpstu r. Vairorau 1 the surviving
i 2 Bah Ul.
( 348 )
parent was held not to have .the power even to give a divided sharein dowry to one of several Children. The shore given in that casedid not exceed the child’s share, and yet the surviving parent washeld not to have the power to give it on one side as a divided portion.In VaUeuammapitlai v. Ponnampalam 1 it was held that where thefather and mother were dead the relations of the daughter couldnot apportion to her more than her child’s share. Although theease does not refer to the right of a surving father, the principleinvolved is the same, as the words of sub-sections 11 and 12 arethe same.
Under section 11 the father is to give a dowry: there is nothingin the sub-section to indicate that he can give anything move .thana child's share. He may give something out of his own propertyif he thinks that the child’s share is not enough. But he cannotdeprive another child of his or her inheritance. [De Sampayo J.—The next paragraph shows that the father may give what he likesto a daughter; for it is only “ if anything remains of what had Inreugiven to the relations with the children, as above stated, ” that thesons come in for a share.] The words “ if anything remains " donot suggest that the father has the power to deprive a son of hisinheritance. The words may refer to cases where all or most of ason’s share was spent on his education and maintenance. It hasbeen held in Ghellappa v. Kanapathy2 that all the children inheritequally. [Ennis J.—That case shows that a father may allocateto a daughter more than her share.] That point was not the pointargued in that case. The observations on this point are purelyobiter. In Nagaretnam v. Alagaretnam also, the decision does notrest solely on this point.
The right claimed is a departure from the ordinary law of inherit-ance, anl unless there be a clear provision in the Tesawalamaito that effect it ought not to be upheld. It is significant thatthere is not one case in Muttukisna’s Tesawalamai to supportthe proposition contended for by the respondent. The only casewhich supports that view (Nayareinam r. Alagaretnam 3) was decidedso recently as 1911. Where a larger shave is given, it is given outof the father’s own property; brothers join in the deed of dowryif their property is to be included.
In this case the dowry was not given in contemplation of marriage.Tt was given long before any particular marriage was arranged.Even if a father had a right to give more than a daughter’s shareby dowry, he can only do so when the daughter is about to marry.
Wadsworth (with him Arulanandam and Joseph), for respondents,referred to D. C. Jaffna.. 8,520 *.
Cur. adv. vult.
1 (1901) 2 Br. 234.* (1911) 14 N. L. li. 00.
* (1914) 17 N. L. It. 294.« S. C. Mim.. Feb. 1914.
1915,
TambapiUai
v.
ChtunalattCg
( 850 )
1916.
TambapiUni
v.
CnimuU<tmby
October 8, 19J5. Ennis J.—
The points for determination on .the appeal are: (1) whetherunder the Temwclamai a husband can, after his wife's death,allocate to the daughters by way of dowry all the property of thedeceased wife to the exclusion of the sons; and (2) whether hecan make a valid assignment by way of dowry when no marriageof a daughter is in contemplation. Clause 11 of section 1 of theT&sdtvalamai answers, in my opiniou, the first point. That clausesays that the father remains on the mother’s death in full possessionof the estate. Should he wish .to marry again he is to make provisionfor the children by setting aside the whole of the property broughtin marriage by his deceased wife and half the property acquiredduring his first marriage. When the children are grown up andable to marry he is to give dowry to the daughters from the propertyhe has already set apart for the children and from his own hereditaryproperty. , The clause proceeds to sav that the sons .take theremainder u if any remains.”
The father, then, has the right to dispose of the whole of thedeceased wife's property in dowry to the daughters, and the sonstake nothing unless something remains after the daughters havebeen dowried. This view £ ids support iri the judgment of PereiraJ. in Ohellappa v. Kanapathy.1
The same clause, also, it seems to me, answers the second point.The dowry may be given when the daughters are ” able to marry.”Clause S also throws light on the second point. That clause speaksof dowry being enlarged in order that the daughter may make “ abetter marriage.” It would seem that the dowry, then, may begiven before marriage.
In my opinion the decree is right, and I would dismiss the appealwith costs.
De S..MPAYO J.—
[His Lordship set out .the facts, and continued]: —
I have never understood dowry under the Teeawaiatnai to meanthe same thing as a marriage settlement. It is undoubtedly theduty of the father or the metier, ns the case may be, to settle thedaughters in marriage and to give a dowry in that connection.Put I do not know that the customary law prevents the parentsfrom determining beforehand what they shall give to the daughtersas dowry and. from gifting to them the destined property, eventhough a marriage may not be actually in view. There is nothingin the Tosawalantai to show that such previous apportionmentis wrong: and, on the contrary, it seems to me that the Teea-walamai contemplates it, in order that marriages, which it is theobject of the dowry system to promote, may be brought about.
i (1914) 27 N. L. R. 294.
( 8«1 )
I think that instances of this*kind are not uncommon. Mr. Bala- 1916.singham far the appellants, however, says that in such oases no j>B sImpayoquestion has arisen, because the donees have accepted the dowries. J-I do not think that under the Tesawalamai dowries require to be raMbapUlaiaccepted in the same way as a gift under «the Boman-Dutch law. . /*However that may be, there is no doubt that the fourth defendant#
accepted the gift in her favour. She married in 1891, that is to say,two years after the date of the dowry deed, and she and her husband,by deed dated June 16, 1894, reciting the title under the dowrydeed, sold the^fcwo-third share to Vcdramuttu Sittampalam, throughwhom the added parties claim title. There cannot be strongerevidence of acceptance than dealing in this manner with the propertydowned.
The main point urged* on this appeal, however, is that the fatherSittampalam had no right to dispose of the entire land in dowryto. his two daughters. It is dear from clauses 9, 10, 11, and 12 ofsection 1 of (he Tesawalamai that it is not only the right but theduty of the surviving parent to give dowry out of his or her property,or out of the property of the deceased parent, or out of both. Thi«cannot seriously be disputed; but it is contended that, since on thedeath of a parent the children at once inherit the deceased’s property,the surviving parent cannot give out of the deceased’s propertyanything more than the daughter’s own share of inheritance, forotherwise the shares already vested by law in the other childrenwould be taken away from them. This, I think, involves amisconception of the principle underlying the provisions of theTesawalamai in question. That principle appears to me to be similarto the Hindu idea of ** undivided family.” The administration ofthe entire estate is in the sole control of the parent, who has thepower to apportion such part of the deceased parent’s property tothe daughters in respect of dowry as he or she in his or her discretionthinks proper, and to possess the balance of the deceased parent’sproperty, it any, until the sons grow up and are competent toadminister the same. When the surviving parent is the father, clause11 of section 1 of the Tesawalamai states the matter too clearly toadmit of any difficulty. For, after laying down that the father shouldfurnish the dowry of the daughters out of the deceased mother'sproperty, the acquired property of both, and his own inherited pro-perty, it provides as follows: “-This being done, and */ anythin»jremains (of the mother’s property), and if the son or sons haveacquired a competent age to administer what remains, they then take
and possess the same, without dividing it until they marry
Bat should there remain nothing of the mother’s property and of the(mother's} half of the property acquired during marriage, the sons,whether young men or married, must do as well as they can untiltheir father dies.” I have italicized the above words in order toemphasize the fact that it is within the power of the father
( m )
tM.
15 k Sampaya
J.
TambapfUni
r.
ChUMotmnbff
to give the whole of the deceased mother s property as dowryto the daughters, and thus to deprive the sons of any share.The whole passage and various other characteristic provisions ofthe Tesawalamai show that there is no such thing as a vestedright by inheritance, and that, even if such language is permissible,the children can be divested of that right at the will of the parent.The case of Muruge8u v. Yana van,1 cited on behalf of the appellants,is no authority to the contrary. For in thAt case it was the motherwho survived and who gave the dowry; and the point, in fact,decided there was that the mother could not divide the land andgive a defined portion to a daughter so as to make the division lastbeyond her own life. Moreover, that is a single Judge decision,and I venture to think that it is not in accordance with the Teea-ivalamai. In this case, however, an entire property was given tothe -two daughters by deeds executed on the same day; and alsothere is nothing to show that there was no other property of themother's which remained to the sons. On the other hand, the rightof the surviving parent, whether futlier or mother, to give to thedaughters as dowry such portion of the deceased's property as beor she may think fit to the exclusion of the sons, is affirmed inNaga/etuam v. Alagarctnom* and also, so far at least as thefather's power is concerned, in Chellappo r. Kanapathy.3I may
also refer to the unrepurted case J>. C. Jaffna, 8,529,'* which wasdecided on the same footing. Counsel for the appellant also relieson YallaiammapiUai r. Ponnampalam.That- case was cited inXaguretnam v. Alagaretnam,2 but was not followed. Moreover,whether it was rightly decided or not, it related to a case wherelmth the parents were dead, and where the ** friends " mentionedin clause 12 of the Tesawalamai purported to apportion as dowrysuch share as prejudiced the rights of inheritance of the other minorchildren of the deceased. For these reasons I think that thejudgment of the District Judge is right, and the appeal should bedismissed with costs.
Appeal dismissed.
*2 Bah 141.* (1914) 17 N. L. J?. 294.
(1911) 14 N. L. /;. 60.« 8. C. Mins., Feb. U, 1914.
• (1901) 2 Br. 294.