047-NLR-NLR-V-23-TAMBIPILLAI-et-al.-v.-NAGALINGAM-et-al.pdf
( 185 j
Present: Ennis A.C.J. and Shaw J.TAMB1P1LLA1 el al. v. NA6ALINGAM el id.198-199—J). C. Jaffna, 13M0.
xosorwalamai—Death of sole child in 1906 leaving dowry propertyinherited from her mother—Mother's brothers and sisters entitled
8, a Tamil subject- to the Tesawalamai, died in 1906 issaeless,and leaving no brothers and sisters.
Held, that the “ dowry 99 property S inherited from her motherdevolved on her mother's brothers and sisters, and not on thesisters only.
T
HE facts appear from the judgment of the Acting DistrictJudge (Sir A. Kanagasabai):—
A certain Sivapakiom died a minor in^l906, leaving behind, amongstother properties, the lands described in the schedule annexed to theplaint, all of which she had inherited from, her mother Theivanai, whowas a downed woman. The dowry deed in favour of Theivanai,No. 3,991, dated May 30, 1893 (D 4), was produced by the contestingdefendants. It was executed scone time before hear marriage. Underthe Tesawalamai dowry may be given ce or after marriage (seeMuttukrishna's Tesawalamai, p. 123, and IS N* L, B. 348).
Theivanipillai had two sisters, namely: (1) Amminipi^ whowas the mother of the first and second defendants(2) SivakamipflJai,who was the mother of the fourth defendant; and a brother (3)SenthevatepiQlu, whose children are the second plaintiff and the fifthdefendant. AranumpiDai and ffivaJondpM were downed on deedsmarkedD 6and DC,respectively. Theseccmd plaintiff claims me-eixthshare of all the lands which were left behind by Sivapakiuxn.
1921
( 186 )■
1981.
Tambiptila?
v.
NagaUngam
The contesting defendantesay that the second plaintiff and her co-heir,the fifth defendant, did not inherit any share of Sivapakium’s estatewhich exclusively belongs to them, as their mothers were the onlydowned sisters of Theivanai. It being, admitted that the secondplaintiff attained majority only on May 26, 1906, prescriptive rightscannot be set up by the defendants.
The following issues were framed
Were Theivanipillai, Amminipillai, and Sivakamipillai downedsisters 7
Did one-half of Theivanipillai’s daughter Sivapakium's
property devolve on the children of Amminipillai and otherhalf on the child of Sivakamipillai, or did it devolve on thechildren of Amminipillai, tJue child of Sivakamipillai, and thechildren of Senthevatepillai, Sen the vatepillai being brother ofTheivanipillai, Amminipillai, and Sivakamipillai ?
Is the plaintiff's action prescribed, the same not having been
brought within three years of the second plaintiff having attainedmajority 7
Are the plaintiffs and the fifth defendant estopped by allegations
made by them in petition A/1,546 marked D 1 and A/1,547 D 2from claiming the lands described in the plaint 7
Does the .document dated September 3, 1918, D3 estop the
plaintiff and the fifth defendant from claiming the propertiesin question 7
The Teeawalamai does not expressly provide for the devolution of theestate of a child dying unmarried. Clause 15-of section 1 is the nearestapproach to a rule of succession in such a case {as has been decided inMagaratnam v. Muttutamby.1 The principle involved in that caseis identical with the one involved in. the present case. There,one Theivanathan, a male, died unmarried. He had on his mother'sside two uncles and two aunts. Nagaratnam, who was the plaintiff inthat case, and daughter of one of the uncles, claimed that her father andhis brother inherited the estate to the exclusion of the aunts and theirchildren. On the other hand, the second defendant in that case, whowas a daughter of one of the aunts, claimed that the property wasinherited by the aunts alone to the exclusion of the uncles. TheSupreme Court decidedthat this property passed to the nearest relations,irrespective of sex, of the immediate ancestor through whom the pro-perty was inherited.. In the present case the property was-inheritedby Sivapakium, and on her death it would devolve on her mother'snearest relations, who are the children of her brother and sisters. Thus,the plaintiff became entitled to one-sixth share.
The question was fully argued on both sides, and a mass of authoritieshas been cited, but the only case in point is the one I have just referredto. The defendant's counsel places some reliance on clauses 5 and 7 ofsection 1. But those clauses do not* apply to this case as Sivapakiumwas not downed. Mo^over, so far back as 1897, it was held inPuthatamby v. Mailvaganam2 that these rules only govern successioninter se of members of the same family, but do not provide forsuccession of remote relations. The omission was supplied in that andother cases from the general law of the land.
The fact that the properties in question were the chidanem propertyof Theivanai does not altar the case, for rule 15 says that the mother'snearest relations take the property derived from her.
1 {191$) 18 N. L. R. 2$7.■* {1897) 2 N. L. U. 42.
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It is stated for the defence that in Thiagarajah v. Pamnchothipillai,1which was a contest for letters of administration to the estate ofthe said Sivapakium, who was his daughter, it was only the childrenof Theivanai’fl sisters that opposed the application of her husband,Thiagarajah, for grant of administration. To that case neither thesecond plaintiff nor the fifth defendant was a party* The questionwas not discussed there whether the plaintiff and the fifth defendant,as children of a brother of Theivanai, inherited any share. All thesame, clause 15 of section 1 was referred to therein as governing the caseand excluding the father.
The third issue is not pressed* The defendants who raised it did notcontend at the argument that the plaintiffs remedy is lost by the delayin bringing this action.
As regards the fourth and fifth issues, I hold that the documentsrelied on do not constitute an estoppel. It is true that the plaintiffsand fifth defendant were for a very long time under the impression thatthey were not heirs of Sivapakium. In fact, they acquiesced in thepossession of the lands in question by the contesting defendants, whowere regarded as the only heirs. Oi these documents, D 1 mid D 2 donot relate to the lands claimed in this case. D 3 is a document, notnotarially attested, by which the parties agreed to divide certain otherlands on the footing that the plaintiffs were not heirs of Sivapakium.It is also said that they omitted to claim the lands in question. Butthe facts relied on do not amount to anything like an estoppel undersection 115 of the Evidence Ordinance, as it is not urged that anyrepresentations or omissions of the plaintiffs led third parties to enterinto any contract respecting the lands in question with the contestingdefendants, who. have lost nothing by the conduct of the plaintiffs.Therefore, I hold that they are not estopped by their conduct or anystatements made by them in the documents refenfed to.
It can scarcely be said that the conveyance executed by the adminis-.trator in the testamentary case regarding the estate of Sivapakiumdeprives the plaintiffs of their right, as the estate was not judiciallysettled and the plaintiffs were not parties to the testamentary case.
Theivanai’s sisters were, no doubt, downed as I have stated, but thatfact does not alter the case.
The second plaintiff is entitled to the one-sixth share claimed by herin this action, and I accordingly enter judgment for her for that share.The parties will, however, bear their own costs, as the plaintiffs actedfor a long time on the belief in accordance, with the prevailing idea inthe country that the contesting defendants were the only heirs ofSivapakiuin.
E. W.Jayatoardene (with him Arvlanandan)t for the appellants.
Pereira, K.G. (with him Balasiiigham), for the respondents.
March 4, 1921. Ennis
This was aq action for declaration of title to certain lands inJaffna. The land in dispute was the dowry property of one Thei-vaniplllai, who died leaving her husband and one child, a girl,Sivapakium. Siyapakium died about 1906, aged seven years.
1 (1900) n J7. E. 46.
1921.
Tambiptyai
v.
Nagaltngam
( 188 )
1921.
EimieA.O.J.
TambipiUai
9.
Nogalingfm
The question in the case is whether the property which had vestedin Sivapakium has passed to the descendants of the sisters ofTheivanipillai to the exclusion of the descendants of her brotherSenthevatepillai. It was contended by Mr. Arulanandan that onTheivanipiUai’s de^th the property, under section 11 of the Tew-walamai, vested in her husband. This, however, cannot be regardedas a serious contention, because in 1&07, on a question arising in thetestamentary case dealing with the estate of Sivapakium, whereTheivanipillai’s husband had claimed the right to administer, thisCourt held that he had not that right, and that the property hadpassed to Sivapakium’s heirs in the line of her mother. Treatingthis case, therefore, as a case relating to the devolutibn of theproperty of Sivapakium, the only point raised in that connectionis that the. case of Nagaratnam v. Muttutamby1 does not completelycover the facts of this case. The learned Judge has decided thiscase on the principle set out in Nagaratnam v. MvUutarnby.xIt is true that in that case itwasa question of succession to the pro-perty of a grandson who had inherited directly from his grandfather, -while in the present case the inheritance is by a daughter from hermother of property which had formed part of the mother’s dowryproperty. Had the property not passed from the mother to thechild, there can be no question that under the TesawaJamai themother’s sisters would have inherited to the exclusion of her brother.But the property having passed to her daughter, the persons toinherit would be, according to section 1 (5) of the Tesatoalamai,read in the light of sub-section(15), the mother’s “nearest relatives.”Section 30 of Ordinance No. 1 of 1911, which is to-day the law onthe point for succession on deaths occurring since the date of theenactment of that Ordinance, provides that the property shall goto the brothers and sisters without any distinction.. That sectionwas probably meant to represent the law as it existed at the timeof the passing of the Ordinance. It will be observed in sub-section
of section 1 of the Tesawalamai that it is only in the case of onesister dying without issue leaving a number of sisters and brothersthat her property passes without a doubt to her sisters. I haveexpressed an opinion on this very point in the case of Nagaratnam v.MvMutambyx and need; not now repeat it. . In my opinion theprinciple of the decision'in that case covers the facts of this case.I would accordingly dismiss the appeal, with costs.
Shaw J.—I agree. 1
1 (1916) Vi A If. a. 267.