022-NLR-NLR-V-63-PONNIAH-and-another-Appellants-and-PARAMANATHAR-and-others-Respondents.pdf
134
BASNAYAKJS, C.J.—Ponniah v. Paramanathar
1960Present:Basnayake, C.J., and Sansoni, J.
PONNIAH and another, Appellants, and PARAMANATHAR
and others, Respondents
S. C. 445—D. G. Jaffna, 10594
Thesawalamai Regulation, Part I, para 10—Death of a woman after second marriage—Devolution of her property.
Under Part I, paragraph 10, of the Thesawalamai Regulation, on the death ofa woman who has married a second time, leaving sons by the first marriage anda daughter by the second, the property she received as dowry on her first marriagegoes exclusively to the sons of that marriage.
.A.PPEAL from a judgment of the District Court, Jaffna.
Thiagalingam, Q.G., with V. A ndambalam and T. Paratkalingam,for 1st and 2nd Defend ants-Appellants.
Ranganathan, with S. Sivarasa and K. Paldkidnar, for Plaintiffs-Respondents.
S. J. V. Chelvanayakam, Q.C., with N. Kasirajah, for 3rd and 4thDefendants-Respondents.
September 6, 1960. Basnayake, C.J.—
The only question for decision on this appeal is whether under theThesawalamai on the death of a woman who has married a second time,leaving sons by the first marriage and a daughter by the second, theproperty she received as dowry on her first marriage goes exclusivelyto the sons of that marriage.
Shortly the facts which are not in dispute are as follows :— Theivanafand her husband Aiyamperumal by deed No. 2644 dated 29th December1884 (PI) attested by Ramasethar Vaitiyalingam, Notary Public, giftedthe land in suit among others to their daughter Thangamuttu wife of"Muthalitamby Velupillai as dowry. Muthalitamby Velupillai died leavinghim surviving three sons Ponniah, Sinniah and Sabapathy, and his wifeThangamuttu. She then married Kanthar Velupillai by whom she had adaughter Annammah. Thangamuttu died intestate in 1904 leaving thethree sons by the first marriage and the daughter by the second. Thelatter was seven years old at the time of her mother’s death. In 1920 oneof the sons Sabapathy died unmarried and intestate. Annammah
BASNAYAKE, C.J.—Ponniah v. Paramanathar
135
married Sinnatamby Kanapatkipillai in 1912. She was doweried by herfather on that occasion. The dowry consisted of movable and immovableproperty. The latter was conveyed by deed No. 4672 of 3rd September1912 (1D4) attested by Kanapathiar Subramaniam, Notary Public. Thelearned District Judge has held that on Thangamuttu’s death her sonsinherited one half of the land in suit and her daughter the other half.
Learned counsel for the appellant submits that the learned DistrictJudge is wrong. He contends that on the death of Thangamuttu the landin suit passed to her three sons to the exclusion of all others. He bases hiscontention on the provisions of the Thesawalamai Regulation. It iscommon ground that as Thangamuttu died before 1911 the year in whichthe Jaffna Matrimonial Rights and Inheritance Ordinance came intooperation, the question arising for decision in the instant case is governedby the Thesawalamai Regulation and not by that Ordinance (s. 40).Learned counsel relies on paragraph 10 of Part I of the Regulation underthe heading “ Of Inheritances and Succession to Property ”. Thatparagraph and paragraph 9 deal with cases of succession to parentalproperty. They are as follows :—
"9. If the father dies first leaving one or more infant children, thewhole of the property remains with the mother, provided she takes thechild or children she has procreated by the deceased until such child orchildren (as far as relates to the daughters) marry; when the mother,on giving them in marriage, is obliged to give them a dowry, but theson or sons may not demand anything so long as the mother lives, inlike manner as is above stated with respect to parents.
** 10. Should, however, the mother marry again and have childrenby her second marriage, then she does with the daughters as is abovestated with respect to parents. But it is to be understood that if shehas daughters by her first husband she is obliged to give them, as well asthe daughters by her second husband, their dowries from her own dotyproperty; and if the son or sons marry or wish to quit her, she is obligedto give them the hereditary property brought in marriage by theirfather and the half of the acquired property obtained by the firstmarriage, after deducting therefrom the dowry which may have beengiven to the daughters.
” If the mother of whom we have just spoken also dies, the sons,both of the first and second marriage, succeed to the remaining propertywhich the mother acquired by marriage ; besides which such son orsons are entitled to the half of the gain acquired during the mother'smarriage with his or their father, and which remained with the motherwhen he or she married, and provided that therefrom are also to bepaid the debts contracted by her or their father when alive.
“ But if any part of that property is diminished or lessened during thesecond or last marriage, then the second husband, if he still be alive,or if he be dead, his son or sons, are obliged to make good the deficiency,either in kind or in money, in such manner as may be agreed upon.
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BASNAYAKE, C.J.—Ponrviah v. jParamancethar
“ On the other hand, the eon or eons of the second marriage are en-titled to the hereditary property brought in marriage by his or “theirfather, and also to the property acquired during marriage, after all thedebts contracted by him shall have been paid from the same. ”
Paragraph 9 deals with the case of the father dying while the mothersurvives. Paragraph 10 deals with the case of a surviving mother whomarries a second time. The first limb of that paragraph prescribes themother’s obligations in regard to her children both sons and daughters.The second limb regulates the succession, on her death, to the propertyacquired by marriage, which remains after she has given dowries to herdaughters. According to it the sons both of the first and second marriagesucceed to that property if any remains. The instant case is one that fallswithin the ambit of the words “ If the mother of whom we have justspoken also dies, the sons, both of the first and second marriage, succeed“bo the remaining property which the mother acquired by marriage ;
It was contended that where the mother dies leaving an unmarrieddaughter, as in the instant case, she is entitled to a share even though shehas on her marriage subsequently been doweried by her father. We areunable to find any support for this in the Regulation.
The learned District Judge has wrongly applied the decision inMurugupiUai v. Poothataniby1 to the facts of the instant case. That casedecides that upon the death of a father who has married a second time, hisancestral property goes one half to the issue of the first bed and one halfto the issue of the second bed whatever be the number of children of thedifferent unions. The instant case is not one of a father who has marrieda second time but of a mother who has married a second time. The caseof Chellappa v. Kanapathy et al.2 and the instances cited by learnedcounsel from Mutukishna’s Thesewaleme* are not in point. We holdthat the property in suit passed on her death in 1904 to the sons ofThangamuttu to the exclusion of her daughter Ann a mm ah.
We therefore set aside the judgment and order dated 6th August 1957and the interlocutory decree entered in accordance with that finding anddirect that the rights of parties be determined in accordance with ourdecision.
Learned counsel for the appellant has drawn our attention to an omis-sion in the decree in regard to the description of the land which is not inaccord with that in the Schedule to the plaint. We direct that the omis-sion be supplied in the decree that will be entered, so as to exclude thexight of way and water-course referred to in the Schedule to the plaint^
The appellant is entitled to costs both here and below.
Sansoni, J.—I agree. i
i (1917) 20 N. L. R. 204.
Appeal allowed.* f2 9T4) 17 27. Z. R. 294.
♦ pp. 48, 132, 146, 147.