018-NLR-NLR-V-65-MURUGESAPILLAI-and-another-Appellants-and-MUTTIAH-and-others-Respondents.pdf
BASNAYAKE, C.J.—MurugesapUlai v. Muttiah
87
1863Present: B&snayake, C.J., and Abeyesundere, J.MUBUGESAPILLAI and another, Appellants, and MUTTIAH and others,
Respondents
S. C. 134 of 1961 [Iidy.)—D. C. Chavalcachcheri, 2095/P
Thesavalamai—Thediatheddam—Immovable property acquired during subsistence ofmarriage—Subsequent death of wife—Marriage of daughter thereafter—Acceptance of dowry—Right of the daughter to inherit share of the acquiredproperly of her deceased mother—Thesavalamai Regulation, s. 3, Fart I, s. 3—Jaffna Matrimonial Rights and Inheritance Ordinance (prior to amendmentby s. 6 of Ordinance No. 58 of 1947), s. 20 (2).
Under the Thesavalamai, a daughter who was given a dowry on her marriagethat took place after the death of her mother did not, by accepting the dowry,lose her right to her share of her deceased mother’s thediatheddam whichvested in her by operation of section 20 (2) of the Jaffna Matrimonial Rightsand Inheritance Ordinance in the form in which it stood prior to its amend-ment by section 6 of Ordinance No. 58 of 1947.
A^eal from a judgment of the District Court, Chavakachcheri.
V. Perera, Q.C., with M. Shanrmtgalingam, for Plaintiff-Appellant.
C. Ranganathan, for the 1st Defendant-Respondent and for thosesubstituted in place of the 2nd Defendant-Respondent.
April 5, 1963. Basnayakb, C.J.—
This is an action for partition of the land known as Innasimanalkadusituated at Thampakamam in Palai in the Pachchilaippali division inJafiha District in extent twenty-five lachohams and twelve and one-fourthkulies of varaku culture with plantations thereon. The 1st plaintiffis the husband of the 2nd plaintiff. The 2nd plaintiff and the 2nddefendant are sister and brother. The 1st defendant is their father.Their mother, Mary Packiam, died on or about the 21st April, 1929.The subject matter of the suit is the acquired property of the wife of the1st defendant and the mother of the 2nd plaintiff and the 2nd defendant.The question for decision is whether by accepting s dowry a child inwhom property has, prior to the acceptance of the dowry, vested byoperation of section 20 (2) of the Jaffna Matrimonial Rights and Inheri-tance Ordinance in the form in which it stood before its amendment bysection 6 of Ordinance No. 58 of 1947, loses her right to the property sovested.
The plaintiffs prayed that this land be declared the common propertyof the 2nd plaintiff and the 1st and 2nd defendants and that it be partitionedand divided as follows :—
2nd plaintiff—an undivided 1 /4 share1st defendant—an undivided 1 /2 share2nd defendant—an undivided 1/4 share
88
BASNAYAE&, CJ.—Mvruguapi&ii «. Muiiiah
The ckfeadanfe averred in their answer that by accepting the deed ofdowry P3 No. 606 dated 26th October 1645 attested by notary CharlesRaj&kone Thamhmh the 2nd plaintiff musts be taken to hare rseowaoed
her rights to any share in her deceased motberis acquired propertyincluding the land in question, and that she is therefore estopped inlaw from claiming a one-fourth share in the land which is the subject-matter of the suit. The land was purchased on deed PI in 1925 duringthe subsistence of the marriage of the 1st defendant with the deceasedMary Pain am. Upon Pakiam’s death in 1929 a half share of this propertyvested in the two children, the 2nd plaintiff and the 2nd defendant, byvirtue of section 20 (2) of the Jaffna Matrimonial Rights and InheritanceOrdinance. That provision read—
“ Subject to the provisions of the Tesawalamai relating to liabilityto be applied for payment or liquidation of debts contracted by thespouses or either of them on the death intestate of either spouse, onehalf of this joint property shall remain the property of the survivorand the other half shall vest in the heirs of the deceased; and on thedissolution of a marriage or a separation a mensa et thoro, each spouseshall take for his or her own separate use one half' of the joint propertyaforesaid. ”
The defendants further took up the position that by reason of the2nd plaintiff’s acceptance of the dowry she forfeited the interests thatvested in her on her mother’s death by operation of section 3 of theThcsawalamai. and that they vested in the 1st defendant and the2nd defendant or on the 2nd defendant as the sole heir of the deceased.Section 3 provides for a case in which the daughters are given a dowryin the life time of the parents and before they have inherited any propertyfrom them. In such a case the provision declares that they are notentitled to claim a share in the estate of the parents after their death.That was the customary law in 1806 and as the Thesaivalamai Regulationordained that all questions between the Malabar inhabitants of theProvince of Jaffna should be decided according to the Theaawalamai orthe Customs of the Malabar Inhabitants of the Province of Jaffna ascollected by Order of Governor Simmons in 1706 that law was applied.But the enactment of the Jaffna Matrimonial Rights and InheritanceOrdinance in 1911 effected a change in that law. It declared that bothspouses shall be equally entitled to the thediatheddam of each spouseregardless of whether it is acquired by either spouse and retained inhis or her name and that on the death intestate of either spouse onehalf of that joint property shall remain, the property of the survivorand tho other half shall vest in the heirs of the deceased. The enactmentwas made subject only to the provisions of the Thesawalamai relating toliability of the thediatheddam of each spouse to be applied for paymentor liquidation of debts contracted by the spouses or either of them. Noother provision of the Thescmalamai is saved and the principle ofe&pre&sio 1mms exdusio altering would apply and exclude all otherprovisions than that expressly saved.
Ratnaweera v. Gtoonettflefce
89
Quite apart from the effect of section 20 (2) of the Jaffna MatrimonialRights and Inheritance Ordinance the instant case is not one •whichfalls ■within the ambit of section 3 for the reason that the death of theparent took place before the dowry was given and is not a case contem-plated by that section which has no application to this case where thedowry was given after the property had vested. The relevant portionof it reads as follows :—
“The daughters must content themselves with the dowry giventhem by the act or doty ola and are not at liberty to make any furtherclaim on the estate after the death of their parents, unless there be nomore children, in which case the daughters succeed to the whole estate
The learned District Judge is wrong in holding that P3 operates as arenunciation of the 2nd plaintiff’s rights to her mother’s estate. Thelearned counsel for the respondent referred us to several decisions ofthis Court, hut they have no application to the instant case and neednot be discussed.
We therefore set aside the judgment and decree and direct that thecase be sent back so that the partition action may proceed.
The appellants are entitled to the costs of the appeal.
Abbybstjxdebe, J.—I agree.
Appeal allowed.