093-NLR-NLR-V-11-THIAGARAJAH-v.-PARANCHOTIPILLAI-et-al.pdf
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[Is Review.]
Present : Mr. Justice Wendt, Mr. Justice Wood Renton,and Mr. Justice Grenier.
In re the Estate of Sivapakiam.
THIAGARAJAH v. PARANCHOTIPILLAI et al.
1908.October 27.
D. C., Jaffna (Testamentary), 1,798.
Tcsawalamai—Property inherited by child from mother—Death of child—Rights of{cither—Heirsof themother—Roman-DutchLaw—
Applicability.
According tothe Teswalamai, propertyinherited by a child
from its mother goes, on the death of the child, to the mother'snext of kin and not to the father.
Judgment in appeal [(i907) 11 N. L. R. 46] affirmed.
H
EARING in review of the judgment of the Supreme Court inappeal reported in (1907) 11 N. L. R. 16.
Van Langenberg (with him Balasingham), for the appellant.
filter Pereira, K.C., S.-G. (with him Wadsworth), for the
respondents.
Cur. adv. vult.
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1908.October27.
October 27, 1908. Wendt J.—
The question in this case, which arises out ol a contest tor lettersof administration, is whether the father or the next of kin of themother succeed to the estate of the deceased girl, who had inheritedthat estate from her mother, and left no brother or sister survivingher. The District Judge held the father to be sole heir andcommitted letters to him, but on appeal this Court reversed hisorder, holding that the next of kin on the mother’s side were to bepreferred, and directing a grant to one of them. This decision wehave now to consider in review.
A question arose at the argument whether the order' of this Courtwas a final order, that is to say, finally determinative of theappellant’s claim to the entire estate. This question we decided inappellant’s favour at the argument, considering that section 207 ofthe Civil Procedure Code would bar his reassertion of that claim inany fresh proceeding, if the order were not got out of the way.We then heard the argument on the merits.
The District Judge based his finding on the Roman-Dutch Law asthe Common Law of the Island, being of opinion that the case was acasus omissus in the Tesawalamai. the system of customary lawapplicable to the parties. This Court, however, ruled that theTesawalamai was not silent on the point, and that its principles gavethe preference to those claiming through the mother, to the entireexclusion of the father. I am of opinion that the decision of thisCourt was right on both points.
One principle of the Tesawalamai, though it admits of exceptions,appears to be that the property of a man devolves in the male line,and that of a woman in the female line. (See section 1, paragraphs 5,7, 15). If this principle be applied, the intestate’s property, havingbeen derived solely from her mother, must go back to the mother’sheirs. The decisions which have been cited from Mu'tukisna areneither very fully reported nor very definite upon the point we haveto. determine, but such as they are they have been exhaustivelyanalysed by my brother Middleton; and I agree with the conclusionto which they have led him.
T think that the judgment under review should be confirmed, andthat the petitioner Saravanamuttu Thiagarajah should pay thecosts of the review hearing.
Wood Renton J.—
In my opinion the judgment under review should be affirmed withcosts. A clear principle is, I think, deducible from the Tesawalamai,that on the death of a father his inherited property returns to hisown line, while on the death of a mother, her dowry returns to herline. (See, e.g., section 1, sub-section 15.) The balance of judicialauthority, enunciated in the cases collected and examined byMiddleton J. in his judgment on the appeal, seems to me to show that
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this principle would be applied to such a case as the present, andthat property inherited by a child from its deceased mother would goon the death of that child intestate, and without brother and sister,to the mother's nearest relations and not to the father. There isno need, therefore, to consider the question of the applicability ofBoman-Dutch Law. The point was very fairly raised by Mr. VanLangenberg, counsel for the appellant, himself at the commencementof the argument in review, whether the origiual order made by thePisrict Judge in this case, granting to .the petitioner-appellant lettersof administration to the estate of his minor daughter, was appealableto the Privy Council under section 42 of the Courts Ordinance,No. 1 Of 1889, as re-enacted by section 10 of Ordinance No. 24 of1901. The learned Solicitor-General, however, waived any objectionon that ground to' the argument proceeding on the merits, and,apart from that waiver, I think'that as the order of the District.Court granting the letters of administration declared the petitioner-appellant to be the sole heir of the intestate, it was an order“ having the effect of a final or definitive sentence ” within themeaning of section 42 of the Ordinance of 1*189, and was thereforeappealable under that section.
Grenier J.—
I agree with the rest of the Court hi affirming the judgment underreview. As regards the question of succession under the Tesawala-mai which was argued before us, I have a case that was decided bymy brother Wood Benton and myself on June 19 last (276, I). C.,Jaffna, 5,061) in which I expressed my opinion at length. I said thereas follows with reference to the particular point now before us: —“ To my mind there is a distinction intended to be drawn betweenmales and females and the mode of succession to their property.The principle is enunciated plainly that males take from males andfemales from females.” In construing sub-section 5 of section 1 ofthe Tesawalamai I said that the words were not very clear, but Igathered the sense of the passage to be that if a downed daughterdies without issue, those who are entitled to inherit from her areher sisters, their daughters, and granddaughters. Failing a femalesuccession, those who are entitled to inherit are fhe brothers, theirsons, and grandsons, if any, and failing them the property goes backto the source from which it came, namely, to .the parents. I alsosaid that it was possible to torture the words of the section I havereferred to in such a way as to make them convey a different meaning,but .that we must gather the sense from the whole passage andassign a reasonable and consistent meaning to the words. I furtherremarked that whatever, doubts there may be in regard to thesection under consideration, they all disappear when it is placed sideby side with section 7 when .the principle is repeated in unmistakablelanguage, that on the death of the parents the sons first inherit the
ms.
October 27.
WoodRenton J.
1908.
October 87.
Qbbotbb
3.
property left by them, and that the property of the sons devolveson the men, and failing them on the women. There is thus reoog-nized by the Teeawalamai a principle regulating intestate succession,whioh may be described as a fundamental one, that males inheritfrom males and females from females. In the case under review,the intestate, being a minor and unmarried at the date of her death,had no dowry or ehidenam, or acquired property of her own. Themother having predeceased her, she was, at the date of her death,possessed of property inherited from her mother, that propertybeing heT mother’s dowry property. The father had clearly noright to claim any part of the intestate’s inheritance as her soleheir. The rule of succession I have already stated, must be appliedwith the result that the inherited property of the intestate wouldgo to the mother's nearest relations in the female line, and not tothe father, who is the present applicant for administration.
Judgment in appeal affirmed.