133-NLR-NLR-V-50-VELLAIYAN-Appellant-and-VALLIYAM-et-al.-Respondents.pdf
526
DIAS J.—Vellaiyan v. Vallvyam
1948Present: Canekeratne and Dias JJ.VEUlAIYAJST, Appellant, and YAXLIYAM et al., Respondents
S.C. 390—D. C. Point Pedro, 2,286
Thesavalamai-—Mortgage bond in favour of deceased—Action by one of thechildren—Is action maintainable during the lifetime of widow ?—Chapter 51, Part I., Section 9.
K,who was subject to the Thesavalamai, died, leaving his widow and anumber of children. The second plaintiff, one of the children, broughtthis action against the first, second and third defendants for a share of amortgage debt due to K from these defendants.
Held, that the plaintiff could not maintain the action during the life-time of the widow in view of the provisions of section 9 of Chapter 51.
ApPEAL from a judgment of the District Judge, Point Pedro.
C. Thiagalingam, with V. Arulambalam, for plaintiff appellant.
W. Tambiah, for 1st to 3rd defendants respondents.
Cur. adv. vult.
September 9, 1948. Dias J.—
Sabapathy Kathiran is a person who was governed by the Thesava-lamai. He married the 4th defendant prior to the enactment of theJaffna Matrimonial Rights and Inheritance Ordinance, 1911 (Chapter 48).
DIAS J.— Ve.lla.iyan v. Valliyam
527
Therefore his property would devolve on his death intestate accordingto the provisions of the Thesavalamai (Chapter 51)—see Ghellappa v.Kanapathy1, Sinnathangachy v. Poopathya, Swamipillai v. Soosaipillai3.
The 1st, 2nd and 3rd defendants had borrowed a sum of Rs. 720 withinterest at 12 per cent, per annum from Sabapathy Kathiran on themortgage bond P2. On the death intestate in May, 1944, of SabapathyKathiran leaving surviving him his widow the 4th defendant, his daughterthe 2nd plaintiff (wife of the 1st plaintiff), his married daughter the 5thdefendant, and the widow and children of a deceased son (the 6th-9thdefendants), has the 2nd plaintiff as an heir of the deceased the right to suefor a share of the mortgage debt from the mortgagors ?
The answer to this question depends on the construction of section 9in Part I of the Thesavalamai (Chapter 51) which deals with the casewhere the father predeceases the mother. The converse case is dealtwith in section 11.
In Chdlappa v. Kanapathy (supra) Pereira J. said : “ It would be a hope-less task to attempt to answer this question by means of the collectionof the laws and customs of the Tamils of Jaffna known as the Thesawa-lamai. It is a crude and primitive compilation which may fittingly bedescribed in the words of Tennyson, used with reference to anothercollection of laws, as no other than a ‘ wilderness of single instances ”—see also the observations of Hutchinson C.J. in Nagaretnam v. Alaga-retnam 4.
Section 9 reads as follows :—
“ If the father dies first leaving one or more infant children,the whole of the property remains with the mother, provided shetakes the child or children she has procreated by the deceased untilsuch child or children (as far as relates to the daughters) marry ;when the mother, on giving them in marriage, is obliged to givethem a dowry, but the son or sons may not demand anything solong as the mother lives, in like manner as is above stated withrespect to parents. ”
In the case of Sinnatangachy v Poopathy (supra) Garvin and Akbar JJ.said : “ It is to be gathered from Rule 9, Section 1, of the Thesawalamai. that upon the death of a man leaving children and a widow,their mother, his property remains with the mother in whom is vestedthe right to apply that property or any part thereof in giving a dowry ordowries to their daughters on marriage. The son or sons take nothingso long as the mother remains alive. It is impossible to say, therefore,that in this case at the death of the deceased .his property
devolved upon his son and daughter, or that it devolved in any particularportion. All that is clear is that the property remained with the widow,and that she had the right to apply the property, or so much of it as shethought necessary, in giving her daughter a dowry. The son, no doubt,had the right to take what was left, but even that right was suspendeduntil the death of the widow ”.—See also Swamipillai v. Soosaipillai(supra) and TharnbapiUai v. Chinnetamby B.
(1914) 17 24. L. B. at p. 295.* (1947) 49 N. L. B. S3.
(1934) 36 N. L. B. at p. 104.* (1911) 14 24. L. B. at p. 62.
8 (1915) 18 N. L. B. at pp. 351-352.
628
MAS j.—Vellaiyan v. VaXliyaim.
If the mother, the 4th defendant, is entitled to retain possession of herdeceased husband's property so long as she lives, the plaintiffs can haveno present cause of action to sue for the money as their rights theretohave not accrued. I am, therefore, of opinion that the learned DistrictJudge reached a correct conclusion on the law.
It is, therefore, unnecessary to consider the other questions raised by theappellants.
The appeal is dismissed with costs.
Cahekkeatnb J.—I agree.
Appeal dismissed.