Nagaretnam V. Alagaretnam Et Al.,

Feb.20,1911   Present: Hutchinson C.J. and Van Langenberg, A.J.

NAGARETNAM v. ALAGARETNAM et al.

330-D. C. Jaffna, 7,262.

Tesawalamai-Daughters inherit deceased mother's dowry property to the exclusion- of sons-Right of fathers to apportion dowry property among daughters.

Where a woman dies leaving sons and unmarried daughters, her dowry property in respect of which she died intestate is inherited by the daughters to the exclusion of the sons.

The husband has a right to allot as dowry to his daughters such portions of the dowry property of his deceased wife as he may think fit.

THE facts are set out in the judgment.

Wadsworth, for the plaintiff, appellant.

Bawa (with him Balasingham), for the defendants, respondents.

The following authorities were cited at the argument: - Valliammaipillai v. Ponnampalam; 1 Murugesu v. Vairavan; 2 Theagaraja v. Paranchothipillai; 3 Theagaraja v.Paranchothipillai;4 Tambyah v. Sinnatankam and another (see footnote, page 63); Chapapathy Kurukal v. Sivaprakasapillai et al,;5 Muttukisna's Tesawalamai, pp. 112, 147, 157, 89, 87; Silva v. Silva.6

Cur. adv. vult.

February 20, 1911. Hutchinson C.J.-

Savuntharypillai, the wife of Edward Spaulding, died in 1885, leaving two daughters, Alagamma and Chellam, and two sons, Rajaratnam and Thambiraja. This action is brought to recover a share in her chidenam property, the plaintiff claiming as the purchaser of their rights from the two sons. The parties are persons to whom the Tesawalamai apply, and the defendants claim the whole property under dowry deeds executed by the father, Edward Spaulding, after his wife's death and after he had married again, whereby he gave one-half in 1889 to Alagamma (through whom the first defendant claims) on her marriage, and the other half in 1901 to the other daughter Chellam, who is the third defendant, on her marriage with the second defendant.

The main issue was whether the dowry deeds to Alagamma and Chellam conveyed title to the shares which they purported to grant. The District Court has held that they did. The plaintiff appeals, and contends that on the mother's death her four children became entitled to the property in equal shares, and that the father had no right to give the whole of it in dowry to the daughters, and that, moreover, he had (under clause 11 of section 1 of the Tesawalamai) no power to dowry his daughters without the consent of their maternal grandparents or guardians. He contends that when the father marries again after his wife's death, it is his duty to find a suitable husband for the daughters, and then to confer with the guardians in giving the dowry; that these dowry deeds made without their concurrence are therefore invalid, and that the law of the Tesawalamai is that, where no dowry is given, all the children share equally in their mother's chidenam property.

The Tesawalamai, as they are set out in our authorized edition of the Laws of Ceylon, are far from clear. But I think that they say that the ancient law was that the property brought in by the husband always remained with the male heirs, and the chidenam

1 (1901) 2 Br. 234.                                                             4(1908) 11 N. L.. R. 345.

2 (1904) 2 Bal. 141.                                                                               5 (1905) 8 N. L. R. 62; 1 Bal. 108.

3(1907) 11 N. L. R.46.                                                       6 (1907) 40 N. L. R.234.

with the female heirs, and that when a daughter, having received her dowry, dies without issue, her dowry (chidenam) devolves on her sisters and their daughters and granddaughters, to the exclusion of her brothers. And clause 11 says that where a mother dies and her husband marries again, the mother-in-law or nearest relation generally takes the children, if they are still young, to bring them up, and in such case the father must hand over at the same time with the childr

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