Murugupillai V. Poothatamby

Present : Shaw J.

MURUGUPILLAI v. POOTHATAMBY.

358-C. R. Point Pedro, 17,231.

    Tesawalamai-Father leaving children by two bed and One-half ancestral property inherited by children of first bed and one-half by children of second bed.

Under the Tesawalamai, upon the death of a father who has married a second time, his ancestral property goes one-half to the issue of the first bed and one-half to the issue of the second bed, whatever may be the number of children of the different unions.

In two partition suits in the District Court, A was allotted one sixth share. In the present case A claimed half share as the sole child by the first bed of his father.

Held, that as the question whether A was entitled to one-sixth or half of his father's property was never put in issue in the former partition suits, A was not estopped from claiming a half share in the present case.

THE facts are set out in the judgment.

Balasingham for the appellant.-The children of Valliar take per capita. All the children are the children of Valliar, and there is no reason for giving the only child of the first wife half and all the five children of the second wife the other half. Ordinance No. 1 of 1911 is in many respects a codification of the Tesawalamai, and section 24 enacts that the children should take per capita. Unless there is a clear provision of the Tesawalamai to the contrary, we must take it that section 24 re-enacts the old law on the subject.

In cases of doubt the Roman-Dutch law, should be followed. See Puthatamby v. Mailvaganam.1[1 (1897) 3 N. L. R. 42.] Under Ordinance No. 15 of 1876 and the Roman-Dutch law the children take per capita. It is clear that even before Ordinance No. 1 of 1911 it was understood that the children succeeded to equal shares of the father's inheritance, as the respondent took a one-sixth share when two other lands
were partitioned in the District Court. The cases from Mutukisna cited by the Commissioner of Requests were not judgments of the
Supreme Court.

In any case the respondent is barred from claiming more than one-sixth share, by reason of the decrees in the two partition cases in the District Court. He was allotted one-sixth in those cases. The shares of all co-owners are put in issue in the partition cases. The Court has to investigate into the title of all the co-owners. Even if

the respondent's share was not actually put in issue, he was a party, and he could have put it in issue. He did not do so. He is barred from raising the issue again between the same parties, not only as to  the lands partitioned in those cases, but as to all lands claimed by him as his share of inheritance from Valliar. Counsel cited Dingiri Menika v. Punehi Mahatmaya;1 Samichi v. Pieris;* Civil Procedure Code, section 207, explanation.

No appearance for the respondent.

Cur. adv. vult.

December 14, 1917. SHAW J.-

This is a dispute between certain parties to a partition suit regarding one-fourth share of the land to be partitioned, which formerly belonged to one Valliar. The parties are Jaffna Tamils, to whom the Tesawalamai applies, and Valliar having died before Ordinance No. 1 of 1911 came into operation, their rights of inheritance are governed by section 1 of the Tesawalamai.

Two questions arise: (1) Whether the respondent, who is the only son of Valliar by his first wife, is entitled to one-half of his father's interest in the land, the other half going between the five appellants, who are children of Valliar's second marriage, or whether the children of Roth Reds take equally per capita? (2) Is the respondent estopped from claiming more than a one-sixth share of Valliar's interest by reason of two previous partition suits relating to other lands, in which he was allotted one-sixth only of Valliar's interest, having rendered the subject-matter of his present claim res judicata ?

The Commissioner of Requests has determined Roth questi

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