022-NLR-NLR-V-36-SINNATHANGACHY-v.-POOPATHY-et-al.pdf
GARVIN S.PJ.—Sinnathangachy v. Poopathy.
103
1934Present: Garvin S.P.J. and Akbar J.
SINNATHANGACHY v. POOPATHY et al.
186—(Inty.) Jaffna, 7,511.
Thesawalamai—Succession to husband's property—Palsies married beforeOrdinance No. 1 of 1911 came into operation—Right of widow to givedowry.
Where a person, subject to the Thesawalamai, and married beforethe Thesawalamai Ordinance (No. 1 of 1911) came into operation, diedleaving a widow and children,—
Held, the property of the deceased vested in his widow who had theright to apply it to give dowry to a daughter.
The son's right to the residue is suspended until the death of thewidow.
^ PPEAL from an order of the District Judge of Jaffna.
Weerasooria (with him Subramaniam), for the first and third re-spondents-appeliant.
N. Nadarajah, for the second respondent-respondent.
June 27, 1934. Garvin S.P.J.—
The parties to this appeal are the widow of Ambalavanar Ponnampalamof Uduvil deceased, their daughter the first respondent, and her husbandthe third respondent, and their son the second respondent. The widowapplied for letters of administration to the estate of her husband andorder nisi was entered on April 16, 1930. This order was made absoluteon November 10, 1930. The widow, thereafter, moved the Court forpermission to sell the deceased’s half share in two properties which arenumbered 1 and 8 in the inventory to pay the debts of the deceased.Her application was allowed, but later at her own instance the sale was
104GARVIN S.P.J.—Sinnathangachy v. Poopathy.
stayed. She made a second application when the second respondent,her son, objected to the sale. The broad ground upon which he askedthe Court to refuse the administratrix permission to sell these interestswas that that would prejudice him in that the result of the sale wouldbe to divest the estate of the two remaining properties to which as ason he might have succeeded. It would seem that on the very day onwhich order nisi was entered, the administratrix executed a deed bywhich she settled on her daughter as dowry all the properties whichformed part of this estate save and except those bearing Nos. 1 and 8respectively. The second respondent, thereafter, offered to bring in halfthe amount of the debts with the object of saving these properties fromsale. After argument, the learned District Judge made order directingthe first and second respondents each to bring into Court what he referredto as their pro rata shares of costs of administration and liabilities of thedeceased, according to such property “ as devolved on them at thedate of the death of the deceased”. It is evident that this order pro-ceeded upon the impression that immediately upon the death of thedeceased his property devolved upon his daughter, the first respondent,and his son, the second respondent, in certain definite proportions. Inthis, I think, the learned District Judge was mistaken. The positionunder the The.sawalamai is by no means the position which has beencreated since the new Thesawalamai Ordinance, No. 1 of 1911, was passed.The deceased and his wife were apparently married according to theirown rites in 1891, but there is evidence afforded by an affidavit and anextract from the Register of Marriages submitted by counsel in proofof the fact that a marriage between these parties was solemnized onNovember 10, 1893, and duly registered under the General MarriageOrdinance. The questions which arise in this case must therefore bedecided with reference to the law as it existed prior to the passing of thenew' Thesawalamai Ordinance.
It is to be gathered from rule 9, section 1, of the Thesawalamai as itappears on page 5 of Volume I. of the Ordinances that upon the death of aman leaving children and a widow, their mother, his property remainswith the mother in whom is vested the right to apply that property orany part thereof in giving a dowry or dowries to their daughters onmarriage. The son or sons take nothing so long as the mother remainsalive. It is impossible to say, therefore, that in this case at the deathof the deceased, Ambalavanar Ponnampalam, his property devolvedupon his son and daughter or that it devolved in any particular portion.Ail that is clear is that the property remained with the widow and thatshe had the right to apply the property or so much of it as she thoughtnecessary in giving her daughter a dowry. The son, no doubt, had theright to take what was left, but even that right was suspended until thedeath of the widow. The view of the law to which I have just givenexpression, derives support from the judgments in Nagaratnam v. Alaga-ratnam1 and Tambapillai v. Chinnatamby *.
The order of the District Judge, therefore, cannot be sustained. Ifthere are debts of this estate which have not yet been paid, the available
i 14 N. L. R. GO.
* 18 N. L. R. 848.
Selvadurai v. Tambiah.
105
assets of the deceased must obviously be realized. We would therefore,direct that the objection of the second respondent be dismissed and thatthe application of the administratrix for leave to sell these properties begranted.
The appellants are entitled to the costs of this appeal but we make noorder as to the costs in the Court below.
Akbar J.—I agree.
Appeal allowed.