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Present: The Hon, Sir Joseph T. Hutchinson, Chief Justice,and Mr. Justice Middleton.
In re the Estate of Sivapakiam.
THEAGARAJAH v. PARANCHOTH3PILLAI et al.
G., Jaffna (Testamentary), 1,798.
Teaawalamai—Property inherited by child from mother—Death of child—Inheritance rights of father—Rights of the heirs of the mother—Roman-Dutch Law—Applicability.
According to the principles laid down in the Tesawalamai, pro-perty inherited by a child from its deceased mother goes, on thedeath of the child, intestate, withoixt brothers or sisters, but leavingits father surviving, to the mother’s next of kin and not to thefather.
HE petitioner Tbeagarajah applied for letters of administrationto the estate of his deceased minor daughter Sivapakiam.
who was his only daughter by his deceased wife Teyvanapillai. Thepetitioner claimed to be the sole heir of his deceased daughter. Theapplication was opposed by the children of Teyvanapillai’s sisters,who contended that, as the deceased had inherited the propertyfrom her mother, the mother’s next of kin were the legal heirs.
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The District Judge (W. E. B. Sanders, Esq.), being of opinion j-
that the Tesawalamai, which governed the parties, was silent on the
point, applied the principles of the Eoman-Dutch Law, and held thatthe petitioner was the sole heir of his deceased child, and orderedletters of administration to be issued to him.
The opponents appealed.
Walter Pereira, K:C., Acting A.-Q. (with him Sampayo, K.G.), forthe appellants.
Bawa, Acting S.-O. (with him the Hon. Mr. Kanagaeabai), for thepetitioner, respondent.
Cur. adv. vult.
December 17, 1907, Middleton J.—
This was an appeal against an order holding that the father of adaughter dying after her mother, intestate and without issue orbrothers or sisters, is entitled as sole heir of the deceased to obtainletters of administration to her estate as against the next of kin,who are the children of two sisters of the deceased’s mother whopredeceased the mother.
Counsel for both parties agree that the property of the deceasedwas inherited from the deceased’s mother, but how it came to themother they are not prepared to state.
It is admitted by both sides also that, according to the Tesawalarmai, if the deceased’s mother had been survived by her two sisters,her property would have devolved on them to the exclusion of thedeceased’s father.
The appellants rely on the principle extracted by Mr. Katiresu inbis handbook (p. 29) on the Tesawalamai from sub-section 15 ofsection 1 of the Tesawalamai of the return of the property to thesource of- its origin, paternally derived property to the paternal nextof kin, and maternally derived property to the maternal next of kin,and support their contentions by quoting the case reported at- page652 of Mutukisna, where the maternal aunt of two minor children,who had died shortly after their mother, leaving one parent only,their father surviving them, was held entitled to inherit in preferenceto their father, which ruling in appeal was supported by the SupremeCourt. The report treats the estate as that of the wife and not asthat of the minor children, who seem to be ignored.,
The Attorney-General also quoted the judgment of Mr. Sanders,
District Judge of Jaffna, in D. C., Jaffna, 3,004 dated July 3, 1903,in which the learned Judge followed the case reported at page 652of Mutukisna, and referred also to case No. 4,365 on page 26 of thesame authority, holding that the sister of a mother, who hadpredeceased her deceased child, was entitled to inherit as heir of thechild. The Judge also referred to a case No. 1,209, Testamentary,
Jaffna, which is not particularly helpful.
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1M>7. As regards the case at page 628 of Mutukisna relied on by theDecember 17. respondents, where the District Court held that the father of aMiddijston deceased son dying without brothers and sisters was the lawful heirj, of the deceased in preference to the heirs of the female line, althoughthe property of the deceased had been derived by gift from hismaternal grandmother, the Attorney-General argued that theproperty was gifted and not downed, and that it was a DistrictCourt case only and wrongly decided.
In case C. R., Chavakachcheri, 2,568, page 69 of Mutukisna, thefather was held entitled to inherit his married daughter’s property,but this was a Court of Requests case, in which a very small sum(Rs. 78.63) waB involved, which must have been acquired property,and was decided apparently on an admission by the defendant thatthe. property devolved on the deceased’s parents and not on herhusband.
In 7,437, D. C., Jaffna, reported at page 61 of Mutukisna, anunmarried deceased daughter’s property was held to revert to hermother and not to her married sisters. In that case the motherwas a widow and a pauper, and probably section 1, paragraph 6,of the Tesawalamai was held to entitle her to have the propertypresumably for life.
In case No. 4,109, page 118, of Mutukisna, the Court held that afather was entitled to retain all the dowry property of his wifeduring the son’s minority in trust for the son.
These are all the cases which have been referred to, or which I canfind in any way touching the question to be decided.
There is nothing in the Tesawalamai which directly shows thata son may inherit his mother’s property or a daughter her father’sproperty, except where the latter is implied in sub-section 15 underthe usages there mentioned. There can be no doubt, however, thatthe principle of inheritance by the children from the parents isimplied in the Tesawalamai in the first paragraph, and a reversionof dowry property to the parents under sub-sections 5 and 15.
Under the Tesawalamai, which evidently regards marriage asthe base from which questions of succession are to be considered anddetermined, section 1, sub-section 1, shows that there are threedifferent kinds of property contemplated as being brought togetheron marriage, and as being the subject of inheritance and succession:modesium that brought by the husband, chidenam that brought bythe wife, and tediatStam the property acquired from the possession ofthe other two during marriage. On the father’s death the modesiumgoes to the sons, while when daughters are married they are to bedowned from the chidenam, “ so that invariably the husband’sproperty remains with the male heirs,” and “ the wife’s propertywith the female heirs. ” TediaUtam is to be divided amongst sons anddaughters alike. This sub-section does not apparently contemplateinheritance by daughters.
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By sub-section 1, if a mother dies first leaving a child or ohrildrenithe father remains in full possession of the estate so long as he does __not many again, and does with it and his children in like manner Middletonas the mother has to do under such circumstances (sub-section 9).
If he marries again, the mother-in-law or nearest relation takes thechildren apparently if they are young, and the father is obliged togive out at the same time with .the children the whole of the chidenamand half the tediatitam. Put shortly he is responsible for the chide-nam and half the tediatitam if he marries again; while he must providedowries for his daughters on marriage if he does not marry again.
Sub-section 9 does not seem to contemplate the bestowal by themother and therefore by the father under sub-section II of the entirechidenam and the half tediatitam as dowry, but only the obligation togive a dowry.
The Tesawalamai does not provide for the case of the child dyingunmarried after the death of the mother or father as specified insub-sections 9 and 11, nor for the case of inheritance by the fatherfrom the children, but rather for a reversion back to the parents andtheir next of kin of what has been received from them, Section 1,sub-section 15, contemplates this sort of reversion, as also the secondparagraph of sub-section 5, which provides for the case of reversionback to the parents of the property of married daughters dyingwithout issue or without sisters and brothers or their issue.
I had some doubt whether sub-section 11 did not intend that thefather was to take full possession of the property in such a case asthe present. The Tesawalamai is, however, silent on the subject ofinheritance by the spouses from each oilier, mid there is ground,.paragraph 1 and sub-section 1 of section 1, for the implication thatdaughters inherit or succeed to the mother’s property and chidenam.
If the property was the mother’s sole property, there is a strongpresumption it was dowry property or chidenam. There is authority(sub-section 1) for holding that the chidenam remains with the femaleheirs, and that cousins may succeed (page 108 of Mutukiana,
My view, therefore, is that in the present case the appellants, whoare the cousins of the deceased, are entitled to succeed to herproperty, and have therefore a stronger claim to the right ofadministration of the estate than the respondent, the father.
To the best of my judgment therefore on a point, the traditionallaw upon which is of a somewhat obscure character, I hold theappellants must succeed in this appeal, and direct that the order ofthe District Court be set aside and a new order drawn up in the termsof my ruling, appointing one of the respondents'to administer theestate.
The appellants will have their costs in the Court below and ofthis appeal.
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I agree with the conclusion at which my brother Middleton hasarrived. The question must be decided by the Tesawalamai, if wecan find that those customs contain any rule or principle applicableto this case. In my opinion the Tesawalamai and the decisions onit which have been quoted establish that property inherited by achild from its deceased mother goes, on the death of the child,intestate and without brothers or sisters, to the mother's next of kin.I therefore concur in the order which my brother Middleton hasproposed.
THEAGARAJAH v. PARANCHOTHIPILLAI et al