Chanmugam Et Al., V. Kandiah Et Al.,

Present : Ennis J. and Schneider A J.

CHANMUGAM et al. v. KANDIAH et al.

8-D. C .Jaffna, 4,260.

Tesawalamai- What law to be applied when Tesawalamai is silent-Mother living in concubinage, with two men, one after the other- Daughters by each bed-Death of one daughter issueless-Extent to which Roman-Dutch law applies-" Mother makes no bastard." -Property devolves on step-sister and not on mother-

V, who was subject to the Tesawalamai, lived in concubinage with two men, one after the other, and had two daughters, N and M. N married before 1911, and died intestate.

Held, that N's estate devolved on her stepsister M, and not her mother V.

The Roman-Dutch law, being the law applicable to the whole Island, applies where the Tesawalamai is silent. But the Roman-Dutch law does not apply even where the Tesawalamai has no express provision if a question can be decided by general principles deduced from the Tesawalamai.

" It is not a sound argument to say that when a contest involves several matters, in regard to some of which a special law has provisions and in regard to others it has not, that because the general law must be resorted to to decide the former matters, the latter should also be decided by that general law. The aid of the general law is invoked to fill in the omissions of the special law, and no more."

THE second respondent, Valliammai, was the mother of two illegitimate children, viz., the deceased Nagamuttu and the second (added respondent) appellant, Marimuttu. The deceased Nagamuttu was married to the first respondent before Ordinance No. l of 1911 came into force, and died intestate in May, 1920,leaving behind, besides her husband (the first respondent), her mother (second respondent), and her half-sister, second (added respondent) appellant.

The first respondent, who was administering the estate of the deceased Nagamuttu, filed a paper of consent from the second respondent, stating that she, as sole heiress, consented to dispense with security for purpose of administration. The added respondents, appellants, objected, and an inquiry was held as to who is the heiress of the deceased, i.e., whether the mother, the second respondent, or the half-sister, the second appellant, was the heiress.

 The District Judge (G. W. Woodhouse, Esq.) delivered the following judgment:-

This is a question whether the half-sister of the intestate or their mother should succeed to the estate of the intestate where both sisters were born out of wedlock to different fathers.

By section 37 of Ordinance No. 1 of 1911: " Where an illegitimate person leaves no surviving spouse or descendant, his or her property will go to the mother, and then to the heirs of the mother so as to exclude the Crown."

It is admitted that this provision does not apply to this particular case, because the intestate was married before that Ordinance came into force ; but the fact that the Legislature has adopted such a provision from the Roman-Dutch law and grafted it to the Tesawalamai indicates that) as there is no provision in the Tesawalamai for cases of this nature, resource must be paid to the Roman-Dutch law rather than that a rule be evolved from the general principles deducible from the Tesawalamai.

It is true that it is a fundamental rule of succession in Tamil law that collaterals have precedence over ascendants ; but it is a question whether, for purposes of succession to intestate's estate, a half-sister, born to the same mother by another father, could be called a collateral I think not. The case would be different if, for instance, the mother's estate is involved.

I hold that this is a case where the Roman-Dutch law must be applied, and dismiss the application of the added respondents, with costs.

Balasingham, for the appellants. - Valliammai lived with two men in Concubinage, and has by each a child, namely, Nagamuttu and Marimuttu. Nagamuttu, who ma

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