038-NLR-NLR-V-08-VISUVANTHER-v.-TIYAGARAJA.pdf
( 174 )
. '1*04.
February 10.
VISUVANTHER v. TIYAGARAJA.D. C,, Jaffna, 2,470.
Illegitimatechildren—Father'slastwill—Bequeststo them tkerevnder—
Validity thereof under the tesavalamai.
Where a father had made certain bequests to the children of hisconcubine, and his heirs objected to them on the ground that such
bequests contravened the Tesavalamai, which applied to the parties inthe case, who were Jaffna Tamils—
Held, that though it was illegal under the Tesavalamai for illegitimatechildren to inherit paternal property, no provision is made incapacitatingthem from taking property given under a . will or a deed of theirparents.
T
HE plaintiffs in this case were the heirs of one Visuvanatharwho, having separated from his wife a menaa et thoro, lived
in concubinage with the fourth defendant, to whom were bomthe first, second, and third defendants.
There were no children by his wife. By his last will he madebequests to his illegitimate children. Probate of the will wasobtained, and the concubine was made the administratrix of theestate of the deceased.
The heirs thereupon objected to the bequests made to theillegitimate children, because they alleged it contravened theTesavalamai, which ought to govern the parties in this case, whowere all Jaffna Tamils. The District Judge held that wills beingapparently unknown to the Tesavalamai, we must apply theRoman-Dutch Law, under which the bequests in question weregood. This decision was based on the ruling of the SupremeCourt in Karoncki Hami v. Ango Hami, reported in 2 N. L. R.276. As the children were the result of neither an incestuousnor an adulterine union, they could take under the will. Againstthis order the plaintiffs appealed.
The case came on for argument on 10th February, 1904, beforeLayard, C.J., and Moncreiff, J.
Dornhorst, K.G.,,for appellants.—The Judge was wrong in sayingthat wills were unknown in the Tesavalamai, as there is a numberof decisions which recognize their existence {Sec. I, ck. 18, p. 175).But these wills cannot break the customary law (Muttuk., pp. 15*nd 17).
The following references were ‘ also made by the learnedcounsel:Vanderlinden, 2,7, 353; Voet, 48, 5,7; Censura
Forensis, 3, 4, 39 and 5 (Pt. /.), 26, 2.r'
Sampayo, K.G. (with him Wadsworth), for respondents.
( m )10th February, 1904. Layard, C.J.—
It appears to me that this judgment should be affirmed. TheLegislature in 1044 rendered it competent to any person in thisIsland to make a will in respect of property which at the timeof his death belonged to him, or which he might be entitled toof whatsoever nature or description, in favour of any person orpersons whatsoever, subject, however, to the proviso that suchpersoi; or persons were not legally incapacitated from taking thesame.
Now, at the time the Ordinance No. 21 of 1844 was passed theTesavalamai was recognized as existing law, and was bindingon*the parties to this suit. No provision has been cited to usfrom the Tesavalamai which incapacitated persons from takingunder a will. It is suggested, however, that the persons to whomthe properties in this case were devised were prohibited fromtaking under the will, in view of the provisions of the Roman-Dutch Law, and that as the Tesavalamai did not incapacitatepersons, situate as these were, from taking under a will, we mustapply the Roman-Dutch Law in this case. Under the Roman*Dutch Law illegitimate children did not inherit the property oftheir father, but the Tesavalamai nowhere provided that thefather should not donate or give property to any one or mere ofhis illegitimate children, neither did it provide, as the Roman-Dutch Law does in certain cases, that an adulterine child isincapacitated from receiving property' under, his parents’ will.Under these circumstances it appears to me that, althoughan illegitimate child under the Tesavalamai does not inherit hisfather’s property, there is no provision in the Tesavalamaiwhich legally incapacitates him from taking property willed tohim by his parents.
For these reasons I think that the judgment of the DistrictJudge should be affirmed.
Moncreiff , J. —Agreed.
1904.
February 10.