In re the Estate of SIVAPAKIAM. THEAGARAJAH v. PARANCHOTHIPILLAI et al.

 

Present: The Hon., Sir Joseph T. Hutchinson, Chief Justice,

and Mr. Justice Middleton.

 

In re the Estate of SIVAPAKIAM.

THEAGARAJAH v. PARANCHOTHIPILLAI et al.

 

D.C., Jaffna (Testamentary),  1,798.

 

    Tesawalamai-Property inherited by child from mother-Death of child- Inheritance rights of father-Rights of the heirs of the mother- Roman-Dutch    Law-Applicability.

 

According to the principles laid down in the Tesawalamai, property inherited by a child from its deceased mother goes, on the death of the child, intestate, without brothers or sisters, but leaving its father surviving, to the mother's next of kin and not to the father.

 

THE petitioner Theagarajah applied for letters of administration to the estate of his deceased minor daughter Sivapakiam, who was his only daughter by his deceased wife Teyvanapillai. The petitioner claimed to be the sole heir of his deceased daughter. The application was opposed by the children of Teyvanapillai's sisters, who contended that, as the deceased had inherited the property from her mother, the mother's next of kin were the legal heirs.

 

 

 

The District Judge (W. R. B. Sanders, Esq.), being of opinion that the Tesawalamai, which governed the parties, was silent on the point, applied the principles of the Roman-Dutch Law, and held that the petitioner was the sole heir of his deceased child, and ordered letters of administration to be issued to him.

 

The opponents appealed.

 

Walter Pereira, K.C., Acting A.-G. (with him Sampayo, K.C.), for the appellants.

 

Bawa, Acting S.-G. (with him the Hon. Mr. Kanagasabai), for the petitioner, respondent.

 

Cur. adv. vult.

 

December 17, 1907,    MIDDLETON J.-

 

This was an appeal against an order holding that the father of a daughter dying after her mother, intestate and without issue or brothers or sisters, is entitled as sole heir of the deceased to obtain letters of administration to her estate as against the next of kin, who are the children of two sisters of the deceased's mother who predeceased the mother.

 

Counsel for both parties agree that the property of the deceased was  inherited from the deceased's mother, but how it came to the mother they are not prepared to state.

 

It is admitted by both sides also that, according to the Tesawalamai, if the deceased's mother had been survived by her two sisters, her property would have devolved on them to the exclusion of the deceased's father.

 

The appellants rely on the principle extracted by Mr. Katiresu in his handbook (p. 29) on the Tesawalamai from sub-section 15 of section 1 of the Tesawalamai of the return of the property to the source of its origin, paternally derived property to the paternal next of kin, and maternally derived property to the maternal next of kin, and support their contentions by quoting the case reported at page 652 of Mutukisna, where the maternal aunt of two minor children, who had died shortly after their mother, leaving one parent only, their father surviving them, was held entitled to inherit in preference to their father, which ruling in appeal was supported by the Supreme Court. The report treats the estate as that of the wife and not as that of the minor children, who seem to be ignored.,

 

 The Attorney-General also quoted the judgment of Mr. Sanders, District Judge of Jaffna, in D. C., Jaffna, 3,004 dated July 3, 1903, in which the learned Judge followed the case reported at page 652 of Mutukisna, and referred also to case No. 4,365 on page 26 of the same authority, holding that the sister of a mother, who had predeceased her deceased child, was entitled to inherit as heir of the child. The Judge also referred to a case No. 1,209, Testamentary, Jaffna, which is not particularly helpful.

 

As regards the case at page 628 of Mutukisna relied on by the respondents,   where   the   Distric

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