V. MURUGESU, Appellant, and T. SUBRAMANIAM, Respondent

118-NLR-NLR-V-69-V.-MURUGESU-Appellant-and-T.-SUBRAMANIAM-Respondent.pdf


632
TAHBIAH, J.—Murugesu e. Subramaniam
1967Present: Tambiah, J., and Sirimane, J.V. MURUGESU, Appellant, and T. SUBRAMANIAM, RespondentS. C. 453/64—D. C. Jaffna, 1668/L
Thcsavalamai—Dowry given by father to a daughter—Execution of deed when nomarriage is actually in view—Validity of such previous apportionment —-Restriction of downed daughter’s right to inherit jOliver's property—Tesawa•lamai Ordinance {Cap. 63), Part /, ss. 1 to 11.
TJndor the Thesavalamai a father can grant immovable property to hisdaughter even before any marriage has been arranged for her. If the daughtermarries subsequently, she will not bo entit.lod to inherit immovable proportyfrom her fathor if ho leaves sons surviving him.
Kandappu v. Veeragathy (53 N. L. R. 119) discussed.
A.PPEAL from a judgment of the District Court, Jaffna.
C. Ranganalhan, Q.C., with P. Nagendran, for the defendants-appellants.
V. Andambalam, with C. Ganesh, for the plaintiff-respondent.
Cur. adv. vult.
June 10, 1967. Tambiah, J.—
The plaintiff brought this action for the declaration of title to the landdescribed in the schedule to the plaint. The plaintiff’s case is that oneKanagasabai Thamboo became entitled to the land by deed No. 1382 of28.12.1929, marked PI. By deed No. 1365 of 21.3.1912, marked P2,
TAMBIAH, J.—Murugeeu v. Subramanxam
533
Kanagasabai Thamboo dowried hia eldest daughter Ponnammah and bydeed No. 9458 of 21.10.1925 marked P3, he dowried his second daughter,Valliammai and the property, which is the subject matter of this suit,devolved on him as sole heir since dowried daughters do not inherit theirfather’s property when there are surviving sons.
The case for the first and second defendants is that deed P3 is only adonation and not a dowry and therefore Valliammai was not precludedfrom inheriting along with the plaintiff a half share of the property, asheir of Kanagasabai Thamboo and deed P4, a transfer by the firstdefendant and his wife Valliammai conveyed this half share to thesecond defendant. The parties are agreed that Ponnammah was givena dowry by deed P2 of 21.2.1912 and therefore she is not entitled to anyinheritance in this property.
The parties also relied on prescription and the learned District Judgehas found prescriptive title in the plaintiff. If, however, the seconddefendant is entitled to a half share then the plaintiff would not be in aposition to prescribe since he becomes a co-owner of the plaintiff, and noouster had been proved.
The only point for decision is whether the deed P3, which on the faceof it purports to be a dowry deed, is a dowry within the meaning of theThesawalamai or whether it should only be regarded as a deed ofdonation.
This point was not, however, specifically raised in the court of firstinstance and Mr. Arulambalam, who is the Counsel for the respondent,took the preliminary objection that the appellant’s Counsel cannot urgethis point in this court in view of the well known rule that mixedquestions of fact and law cannot for the first time be raised in appeal.Mr. Ranganathan, Counsel for the appellant, however relied on theissues raised by the plaintiff’s Counsel. The particular point raised inappeal was neither raised in the form of a specific issue nor argued. Theplaintiff in order to succeed in this action has to prove that Valliammaiwas duly dowried and therefore should have led all the evidence to provethis fact. Therefore, it was decided to hear this case on its merits.
The parties to this case are governed by the Thesawalamai. Thepoint raised is one of importance and has been the subject matter ofconflicting decisions. The Counsel for the appellant contended thatdowry could only be given on the occasion of marriage of one’s daughterand therefore the dowry deed should be executed either at the time ofmarriage or, where a particular marriage was in contemplation, the deedof dowry should be executed in order to promote such a marriage.Mr. Arulambalam, Counsel for the respondent, urged that under the lawof Thesawalamai a father, being the manager of a joint estate, has thediscretion to give by dowry any property to his daughter at any time.He submitted that long before marriage was arranged the father cangrant a particular property to a daughter as dowry. He urged that theguiding principle to determine whether a grant is a dowry or a donation
H 6873 <8/67)
034
TAMBIAH, J.—Murugesu v. Subramaniam
is the intention of the donor. On the facts, Mr. Arulambalam urged thatthe finding of the learned Judge that Deed P3 was a dowry deed, isamply supported by the evidence. In the recitals in deed P3 it isspecifically stated that the property is given by way of dowry.Valliammai and the first defendant themselves regarded this as dowry,because when they transferred the property by deed P4 of 1959, they recitedtheir title to the land, in the deed in favour of Valliammai, as based ona dowTy deed. There is no evidence that Valliammai was ever dowriedany other property other than the land given to her by deed P3.
t Counsel for the appellant submitted that the only source of Thesa-walamai is the Tesawalamai Ordinance (Cap. G3) and if one examinesthe provisions of this enactment, it will be evident that dowry could begiven only at the time of marriage. In order to establish this propositionhe referred to the provisions of Part I sections 1 to 11 of the TesawalamaiQrdinance (Cap. 63).
All the passages relied on by Mr. Ranganathan are found in Part I ofthe Tesawalamai Ordinance under the heading “ Inheritance andSuccession to Property ”. In dealing with different kinds of property,the Tesawalamai Ordinance states :
“ From ancient times all the goods brought together in marriage bysuch husband and wife has from the beginning been distinguished bythe denomination of modesium or hereditary property, and whenbrought by the wife were denominated as chidenam or dowry, theprofits during the marriage are denominated as thcdiathettam oracquisition. On the death of the father, all the goods brought inmarriage by him should be inherited by the sons or son and when adaughter or daughters marry they should each receive a dowry orchidenam from their mother’s property so that invariably the husband’sproperty always remains with the male heirs and the wife’s propertywith the female heirs, but the acquisition of thed 'athettam should be. divided among the sons and daughters alike ; sons must howeveralways permit that any increase thereto falls to the daughters’ share.”(vide section 1 Part I of Cap. 63).
Nowhere in this passage is it stated that the dowry must be given only at-the time of marriage or to promote a particular marriage which is incontemplation. All the properties brought by the wife, whether theywere inherited by her, dowried to her or even acquired by her before-marriage become her dowry (cheedanam) at the time of marriage. Viewedfrom this angle, the property granted by P3 is dowry since it was not onlygiven with the intention of being given as dowry but also wasValliammai’s property at the time of marriage.
' Part I section 2 of the. Tesawalamai Ordinance states as follows :
“ But in process of time, and in consequence of several changes of
, Government, particularly those in times of the Portuguese,
, several alterations were gradually made in those customs and usages,
TAMBIAH, J.—Murugemi v. Subramamiam
535
according to the testimony of the oldest Mudaliyars, so that, at present,
. whenever a husband and wife give a daughter or daughters in marriage
the dowry is taken indiscriminately either from the husband’s or wife’s
property, or from the acquisition, in such manner as they think proper.”
In this context the sentence " whenever a husband and wife give a daughteror daughters in marriage the dowry is taken indiscriminately, either fromthe husband’s or wife’s property, or from the acquisition, in such manneras they think proper,” suggests that the parents could give a dowry outof the dowry of the wife or the property of the husband. This passagedoes not necessarily imply, as Mr. Ranganathan contended, that dowrycould be given only at the time of marriage.
Part I section 3 of the Tcsawalamai Ordinance refers to the duty of thenearest relations, either on the father’s or mother’s side, to enlarge thedowry by giving some of their own property. In dealing with thismatter the Tesawalamai Ordinance enacts that “ such a present shouldbe particularly described in the doty, marriage act or ola, which mustspecify by whom the present or gift is made and the donor must also signthe act or ola ”. The doty referred to is the dowry deed. The marriageact during the Dutch period took place in the Church. (During theDutch period the Tamils of the North were Christians and marriages wereregistered in Church.) By ola is meant the palm leaf on which the deed waswritten. A perusal of this section of the Tesawalamai does not compelone to the conclusion that a deed in order to be construed as a dowry deedcould only be executed at the time of marriage or on the occasion when aparticular marriage is contracted.
The citation of a Tamil proverb “ ottiyum cheethonamum patr'yal”,
e., immediate possession must be taken of dowry and pawns, was alsorelied on by Mr. Ranganathan for the proposition that dowry could onlybe given at the time of marriage. This maxim contains rules governingprescription to otti and dowry property. The sentence following thiscitation enables a married couple to set out excuses for the delay inobtaining possession. The existence of this provision shows, by implication,that possession of dowry property need not be taken immediately aftermarriage. Since an unmarried daughter is under the guardianship ofher father there will be no necessity for her to take possession of theproperty given as dowry till her marriage. Her father, as naturalguardian, would necessarily look after such property on her behalf tillher marriage.
A critical examination of the provisions of Part I, sections 4, 5, 6, 7,8, 9, 10, 11, 12 and 14 relied on by Mr. Ranganathan does not compelone to the conclusion that in order that a gift may be construed as adowry it should be given at the time of marriage or in contemplation of aparticular marriage which has already been arranged. No doubt in someof these passages reference is made to the obligation of the parents togive dowry to their daughters when they get married. But no particularpassage deals with the exact time at which such a dowry deed could beexecuted.
40 – Volume LXIX ,
5S6
TAMBIAH, J.—Mttrugesu v. Subramantam
The duty cast on a father to give a dowry when he gives his daughterin marriage is set out in Fart I section 11 of the Tesawalamai Ordinance.A father in such a case “ is obliged to give at the same time with hischild or children the whole of the property brought in marriage by thedeceased wife and the half of the property acquired during his firstmarriage The whole of the property brought by the wife, as contem-plated in this action necessarily refers to her inherited property, acquiredproperty, as well as even gifts granted to her before marriage. Allsuch property would come under the designation of her cheedenam ordowry.
If Mr. Ranganathan’s contention is carried to its logical conclusion itwould not be possible under the law of Tesawalamai for a parent or anear relation to grant a dowry to a married woman after her marriage.
Part I section 5 of the Tesawalamai Ordinance is of relevance. Itenacts as follows:
“ Should it happen that after the marriage of the daughter ordaughters the parents prosper considerably, the daughters are atliberty to induce their parents to increase their doty, which the parentshave an undoubted right to do.”
This provision contemplates parents, who are in affluent circumstances,to give dowry even long after the marriage. Mr. Ranganathan howeverstressed on the words “ increase the doty ” and suggested that only whena dowry deed had been given at the time of marriage, parents wereallowed to increase the dowry. I am afraid such a narrow interpretationcannot be placed on these words. The Tamil translation of the Tesa-walamai, approved by the “ Twelve sensible mudaliyars ”, makes itabundantly clear that even if no dowry was given at the time of marriageparents, who later are in affluent circumstances, could be induced bytheir daughters to give a dowry.
The Tamil version of this part of the Tesawalamai is as followB :
“£>&&&r QudsJtSI&risneaMJOusts:tinssetitunesstibOsrrQf^^fifii
iSetiLfiSI&neyib mtrfine^ib Oaj^urtdQiuin Qurbf£)(rijrbgrTrtaQGrTUJ[7@)€0t ^uQurrjp
QusfsJtSlGrTfcnQuGtsnSI&jtiai&Grr tSl^rr iDn&rreSlejifu&uuQgfl
und®ujrtosdi)p) Peo*? ueogj Qu&gyd Q&rr&i^&ptSperi&fTfineijib ujnQ^fT0 g]6u&t£&i6Qfnri& QsirQAae^ib £jf}£&Gtsi$.”
(vide Mutukriana, Appendix p. 4.)
It means that parents, after giving their daughter in marriage, if theyare in affluent circumstances could be induced by such daughter ordaughters to give them a dowry and may obtain the same and such aparent has the right to give the dowry.
TAMBIAH, J.—Murugesu v. Subramcmiam
S37
In the Teaawalamai there have been instances where dowry had beengiven to children long before their marriage (vide AyaJte, widow ofCoonjitamby of Delft v. Tanecoody Ramen and others, Mutukrisna, p. 115,in which reference is made to a land being given as dowry to a plaintiffwhen he was a child). Dowry had been given before and after marriage.In Chinnepodichy v. Sewagamy (Case No. 3524, Mutukrisna, p. 114),Forbes J. says : “ It appearing that Dowry is given for years “ prior.and subsequent to marriage ”, I admonished and discharged the plain-tiff’s eighth witness, as I still am impressed that he has not stated thetruth.” The learned Judge in this ca3e who was acquainted with thecustomary usages of the Tamils of Jaffna, went to the extent of admo-nishing a witness who perjured himself by stating that dowry could onlybe given at the time of marriage. In Jaccohal v. Mootocarpen (Case No.4079, Mutukrisna, p. 117), Wright J. refers to a second dowry ola executedsubsequent to the first deed after the father had incurred a debt.
Mr. Ranganathan relied on the case of Vinayagar Welen and anotherv. Waliar Welen and another (Case No. 319-1580, Mutukrisna, p. 120) forthe proposition that dowry can only be given if there is a regular marriage.There is no doubt a casual statement by Toussaint J. in that case to .theeffect that the plaintiff’s mother could not have obtained a dowry if shehad not contracted a regular marriage. This dictum cannot be reliedon as an authority for the proposition that only in regular marriages adowry could be given. In the case relied on by Mr. Ranganathan, it isnot clear whether the dowry was given to the plaintiff’s mother by deedor whether the parties were relying on an oral dowry. The decision foundin Mutukrisna on Thesawalamai are of evidentiary value to determinethe prevailing custom at that time, although they have no binding effectas precedents. The cases refered to in Mutukrisna show that dowrycould be given long before, at the time, or after marriage.
In Murugasar et al. v. Ramalingam1, it was held that a deed, purportingto be a dowry deed given by a grandparent long after the marriage of theparents, was regarded as a dowry granted by the grandparents. In thiscase a Divisional Bench of the Supreme Court rejected the view of theDistrict Judge who purporting to follow the case reported in Mutukrisna,relied on by Mr. Ranganathan, and held that-dowry could be given at thecelebration of a regular marriage. Dias J. based his decision on the factthat the deed on the face of it stated that it was a dowry. Cayley C. J.while feeling doubtful whether a grant which purports to be a “ dowrydeed ” can be considered as operative if the marriage of the grantee didnot take place, based his decision on the fact that on this deed theparties were put in possession. But Grenier J. categorically said that■according to the Thesawalamai dowry may he given before or after marriage.
In TambipHlai v. Chinnalamby2 it was held that the husband can,after his wife’s death, allocate to his daughter as dowry all the propertywhich the deceased wife left, to the exclusion of the son, and such
>Z>. O. Jaffna 10?15, (1881) 4 Tambyah Reports, p. 178.* (1915) 18 if .L. B .348.
638
TAMBIAH, J.—Sfumgesv v. Subramaniam
property may be allocated, even though the marriage may not be in actualcontemplation. In dealing with this question Ennis J. said (at page 360) :
“ The father, then, has the right to dispose of the whole of thedeceased wife’s property in dowry to the daughters, and the sons takenothing unless something remains after the daughters have beendowried. This view finds support in the judgment of Pereira J. inCheUappa v. Kanapathy (1914) 17 N. L. R. 294.
The same clause, also, it seems to me, answers the second point.The dowry may be given when the daughters are “ able to marryClause 3 also throws light on the point. That clause speaks of a dowrybeing enlarged in order that the daughter may make a ‘ better marriage It would seem that dowry, then, may be given before marriage. ”
In that case the marriage took place in 1891, i.e., two years after thedowry deed had been executed and at the time the deed was executedthere was no marriage in contemplation. De Sampayo J. said : (atpage 350).
“ I never understood dowry under the Tesawalamai to mean thesame thing as a marriage settlement. It is undoubtedly the duty ofthe father or the mother, as the case may be, to settle the daughters inmarriage and to give a dowry in that connection. But I do not knowthat the customary law prevents the parents from determining beforehand what they shall give to the daughters as dowry and from giftingto them the destined property, even though a marriage ma}7 not beactually in view. There is nothing in the Tesawalamai to show thatsuch previous apportionment is wrong ; and, on the contrary, it seemsto me that the Tesawalamai contemplates it, in order that marriages,which it is the object of the dowry system to promote, may be broughtabout. I think that instances of this kind are not uncommon.”
With respect, I am in agreement with the views expressed by theseeminent judges.
Mr. Ranganathan relied on the decision in Kandappu v. Veeragathy 1for his proposition that dowry could be given only at the time of marriageor on the occasion of a contemplated marriage. That case however dealtwith the question as to whether a dowry could be given after marriageand did not deal with the question raised in the instant case.
The provisions of the Tesawalamai Ordinance were neither analysednor the authorities cited, considered in this case. Basnayake J. in thecourse of his judgment said : (vide at page 120) “ It is clear from theTesawalamai that the granting of the “ doty ” or “ doty ola ” is an actperformed at the time of the marriage and not during the marriage.” Asstated earlier, there is nothing in the provisions of the TesawalamaiOrdinance to warrant this view. This case was not followed in Thesigarv. Ganeshalingam a. In that case in dealing with this question Gratiaen J.said:
1 *(1951) 63 N. L. R. 119.
•(1952) 65 N. L. R. 14.
TAMBIAH, J.—Murtigeau v. Subramaniam63®
“It is common ground that “ under the Tesawalamai a do writ ddaughter loses her rights to her parents’ inheritance (Eliyan v.VeUan et al. (1929) 31 N. L. R. 356). Mr. Tambiah contends, however,,that the effect of a more recent ruling of this court in Kandapp/u v.Veeragatky (1951) 53 N. L. R. 119, is to limit the operation of thisprinciple to cases where the dowry has been received either before orat the time of the daughter’s marriage.
I find myself unable to give the ruling in Kandappu v. Veeragalhy(supra) such a narrow interpretation. In that case the Tesawalamaidaughter who was not proved to have received any dowry from herparents on the occasion of her marriage subsequently obtained by wayof gift a certain property from her father, brother and uncle. TheCourt decided, upon the facts of that particular case, that the deed ofgift could not be construed as a doty ola so as to disinherit the donee.
As I understand the true principle, the question whether a sub-sequent gift by a parent to a married daughter operates and wasintended to operate as a donation simpliciter or as a postponed fulfil-ment of the earlier obligation to provide her with a dowry is essentiallya question of fact.
In the present case the deed of gift to the married daughterexpressly purports to be “ by way of dowry in consideration of her havingmarried the said (Vythialingam) as I desired.” Moreover, the gift wasaccepted on the face of the document in the following terms, “ I the
saiddowry grantee with the consent of my husband do
hereby accept this dowry with full satisfaction and gratitude.”
Persons subject to the Tesawalamai are no doubt well aware of thelegal incidence of the granting and acceptance of dower—and thesequestions cannot therefore be determined with reference only to thepoint of time when the gift was made.”
It is one of the cardinal rules of Thesawalamai that the acceptance of adowry is a renunciation by the daughter of any further rights to ashare in the parent’s property. This view was stated by Lyall Grant J.'in Eliyavan v. Velan h
The object in granting dowry is to make provisions for a daughter inorder that she may set up a new home. The ch '.denam in Tesawalamaishould not be confused with stridana of the Hindu law. As Mayne says :Many principles of Hindu law, including the principles governing thejoint family system, separate property, stridana, were all developed fromthe basic concepts known to the ancient customary laws of India.” (videMayne, Usages and Customs of the Hindus, 7th Edition, p. 50). Theseusages and customs which were prevalent among the Dravidians were thebasis on which the Dharmasastras were built. Ganapathi Iyer, referringto these customary usages says : (vide Ganapathi Iyer, Hindu law, Vol. Ip. 36). “ It will thus be seen that the Hindu law as contained in the
1 (1929) 31 N. L. S. 356.
640
TAMBIAH, J.—Murugem v. Sttbramaniam
Code and other Sanskrit writings is not a myth but is based on imme-morial usage and the Brahaminical writers never could have supplantedand none did supplant these usages by laws of their own fancy, althoughthey might have been instrumental in developing the law to suit thegrowing needs of the society at their time.” (vide also Mayne, 9thEdition, p. 4). Mayne says: “ I think it impossible to imagine that anybody of usages could have obtained general acceptance throughout Indiamerely because it was included by Brahamin writers or even because itwas held by the Aryan tribes.”
The origin of Cheedanam must therefore be found in the customaryusages of the Tamils which were prevalent in South India. In thisconnection two systems of customary laws must be examined. In theMarumakathayam law, the counterpart of which was the Mukkuwa lawof Ceylon, the matrilineal system obtained. Under such a system, theproperty was owned by the eldest female. The husband himself hadlittle status and the devolution was on the female line. In such a society,if the parents wanted a daughter to be set up in life they gave out oftheir acquisitions, a marriage settlement. This settlement established anew family unit—the “ thavazhi illam ”. After marriage the daughternow formed a taward. The managers of these tawards set up newthavazhi illams when their daughters got married. There is clearevidence that Magha, with his mighty Cheras, settled in Jaffna whendriven from the South. It is possible that the Chera chiefs who were theruling classes at the time of Maghas settlement were governed by theMarumakathayam law and the concept of dowry (cheedanam) becameentrenched in the customs of Jaffna. The later settlements during theAryachaktravarti period, referred to in the Yalpanavypaha Malai and inthe Kailasa Malai, came from the Coromendel coast in the East of SouthIndia. The customs and manners of the second settlers during theAriyachakravarti period mingled with the customs and usages thatexisted earlier. Therefore in Tesawalamai we have a curious blend ofthe rules peculiar to the matriarchal and the patriarchal system. Thebasic object of granting dowry therefore is to make a marriage settlement.This could be done either before marriage or after marriage or at the timeof marriage.
Mr. Banganathan also stated that the origin of the Thesawalamai is tobe found in the Tesawalamai Ordinance and one should not look else-where to enunciate the rules of the Tesawalamai. I am afraid I amunable to agree with this proposition. The Tesawalamai was a system ofcustomary law which was administered by the Tamil kings in Jaffna.On the orders of Zwaardecroon, who was the Commander of Jaffna-patnam, and afterwards the Governor of the Council of Netherlandsof India, the Tesawalamai was collected by Claas Isaaksz, the Dutchofficer in Jaffna. The collection was originally in Dutch and latertranslated by Jan Pints into Tamil. The Tamil translation was there-after sent to the leading citizens—the twelve sensible Mudaliyars, whofound the collection to be in accordance with the main usages and
SIRIMANE, J.—Mttrugesu v. Subramaniam
541
customs of the Tamils of the “ Province of Jaffna It was howeversot a comprehensive collection of all the customary laws of the Tamils.Sir Alexander Johnstone, on his visit to Jaffna found, that the peoplewere governed by the Tesawalamai which was supplemented by certainworks of Dharmasastras, such as “ Viguyan Ishuar and VidenuggeroCommentary on the text of Parasara The works on theDharmasastras referred to by Sir Alexander Johnstone were probably theSmirti of Yagna Valka and Madahava’s great commentary on ParasaraCode, respectively. Sir Alexander Johnstone translated the Dutchcollection and sent it to the headmen of Tamils who lived in the variousparts of Ceylon in order to find out whether the customary usages havebeen correctly collected. The replies to the despatches throw some lighton the customary laws of the Tamils who were living in the various partsof Ceylon during this period (vide C. 0. 54/123 pp. 143 et seq).
After the British occupation, our courts followed the principle of staredecisis. A body of case law has grown up interpreting the provisions ofthe Tesawalamai Ordinance. This body of case law sheds light on manyobscure passages in the Tesawalamai Ordinance. Some of the provisionsfound in the Tesawalamai Ordinance are obsolete. The TesawalamaiCommission did nothing to expunge the obsolete parts from the StatuteBook. Mr. Brito Mutunayagam, who was then the Legal Draftsman,said that it would be impolitic to tamper with the customary laws whichhad been collected during the Dutch period by piece meal alterations andby expunging parts which were obsolete. Therefore one should be verycareful in dealing with the provisions of the Tesawalamai Code, eome ofwhich are clearly obsolete. The source of Tesawalamai is thereforefound not only in the Tesawalamai Ordinance (some parts of which arestill in operation), but in the subsequent enactments dealing with it andin the body of case law.
I prefer to follow the principles laid down in Murugesar v. Ramalingam(supra) and Tambipillai v. Chinnatamby (supra) and hold that by deedP3, Valliammai was given a dowry. Therefore Yalliammai was excludedfrom inheriting her father’s property and could not have transferred anyinterests in the property, which is the subject matter of this suit, to thesecond defendant.
For these reasons I affirm the judgment of the learned District Judgeand dismiss the appeal with costs in both courts.
SmmANE, J.—
I am in agreement with my brother Tambiah that this appeal must be-dismissed with costs.
The Plaintiff respondent was one of the three children of one Thamboo,the admitted original owner of the land in dispute. The other twochildren Ponnammah and Valliamma were daughters. The parties are
642SIR MANE, J.—Mumgesu v. Svbramaniam
governed by the Tesawalamai, and according to the plaintiff the two-daughters forfeited their right to inherit from their father, because he-had already gifted certain properties to them by way of dowry.
In the case of Ponnammah this fact was admitted by the defendantsappellants.
In the case of Valliamma the plaintiff respondent produced the dowrydeed P3 of 1923.
It was contended for the defendants (who are the husband and daughterof Valliamma) in appeal, that though on the face of it P3 is a dowrydeed, and in fact was accepted and acted upon as such, yet, as Valli-amma’s marriage to the 1st defendant was admittedly not in contem-plation at the time P3 was executed, it should therefore be looked uponas a simple deed of gift, and Valliamma therefore did not forfeit her rightsof inheritance. The Tesawalamai (chapter 63) is “ A regulation for
giving full force to thecustoms of the Malabar inhabitants of the
Province of Jaffna”. According to these custpms it is the duty
of a father to provide dowries for his unmarried daughters.
In practice a father having regard to the interest of all his children,would know exactly what he should give as dowry to each of his daughters,and I can see nothing in the sections of the Tesawalamai relied on bycounsel for the defendants appellants (sections 2 to 11 of chapter 63)that is obnoxious to the very practical and sensible method of giving thedowry in advance.
As Sampayo J. with his deep judicial knowledge and practical wisdomsaid in ThumbapiUai v. Chinnatamby 1 “ It is undoubtedly the duty ofthe father or the mother as the case may be to settle the daughters inmarriage and to give a dowry in that connection. But I do not knowthat the customary law prevents the parents from determining beforehand what they shall give to the daughters as dowry and from gifting tothem the destined properties, even though a marriage may not be actuallyin view. There is nothing in Tesawalamai to show that such previousapportionment is wrong ;”
My brother Tambiah has examined the various other authorities onthis point and there is one, Kandappu v. Veeragathy a, where the learnedjudges took a different view. But the hypothetical problem posed inthat case as to the exact legal position if a marriage does not take placeafter a dowry deed is executed, does not arise here.
With great respect I am of opinion that the words of Sampayo J.quoted above set .out the better view.
Appeal dismissed.
* {1915) IS N. L. R. 348.
{1951) S3 N. L. R. 119.