1929   Present: Lyall Grant J. and Maartensz A.J.

ELIYAVAN v. VELAN et al.

136-D. C. (Inty.) Jaffna, 22,812.

Tesawalamai-Daughter downed by brother after death of father- Acceptance of dowry-Renunciation of parental estate.

Where, under the Tesawalamai, after the death of the father, a daughter was downed by the brother, the acceptance of the dowry by the daughter operates as a renunciation of her rights to the paternal estate.

THIS was an appeal from a judgment of the District Judge of Jaffna. The plaintiffs sued for the partition of a land belonging to the estate of one Vellan Suppan, whose daughter was the second plaintiff. The defendants, who were the sons and the widow of Suppan, contended that the second plaintiff had been dowried by her, brother the ninth defendant, and that she was not entitled to any further claim on the parental estate. The learned District Judge dismissed the plaintiffs' action.

Croos Dabrera, for plaintiffs, appellants.

Subramaniam, for defendants, respondents.

November 11, 1929. LYALL GRANT J.-

The first and second plaintiffs are husband and wife and they instituted this action in the District Court of Jaffna to Partition a certain land. The plaintiffs claimed in right of the second plaintiff being the daughter of Vellan Suppan and his wife Nagamutty, and they called as defendants the widow Nagamutty (eleventh defendant) and the remaining children of Vellan Suppan and Nagamutty.

The ninth, tenth, and eleventh defendants (ninth and tenth being eons of Vellan Suppan) asserted that all the female children of Vellan Suppan had been dowried.

The fourteenth defendant (wife of the ninth) supported this averment but alleged that the whole land had been transferred to her by deed for valuable consideration.

The plaintiffs' right to partition the land obviously depended on whether the second plaintiff had been dowried. The case went to trial on the following issues:-

(1) Was she dowried by the ninth defendant and her parents ?

(2) Was she dowried by the ninth and fourteenth defendants at the request of the eleventh defendant?

(3) Were all the daughters of Vellan Suppan dowried ? It is common ground that if the second plaintiff has been dowried the case is at an end, as she would then have no right to institute this action.

The learned District Judge came to the conclusion that all the daughters of Vellan Suppan had been dowried and that the second plaintiff received a dowry from her eldest brother (the ninth defendant) and his wife (the fourteenth defendant).

He accepted the evidence furnished by various receipts in the case of the other daughters, and in the case of the second plaintiff the evidence furnished by a formal deed of dowry dated September 16, 1925. The facts were not seriously disputed, but it was contested that it was only a daughter who was dowried by her parents who was debarred from the inheritance and that a daughter dowried by her brother was not so debarred.

This argument was rejected by the learned District Judge, who found .against the plaintiffs. From this judgment the plaintiffs and the first to the eighth defendants appealed.

It was argued before us that on .the death of Vellan Suppan, the widow had by the Tesawalamai no more than a life interest in the estate and that the fee vested absolutely in the children pro rata at the death of the father.

Reference was made to the Jaffna Matrimonial Eights and Inheritance Ordinance, No. 1 of 1911, section 22, and to the case of Murugesu v. Kasinathar ,[1 25 .N. L. R. 201]  where it was held that on the death of a wife before her husband a half share vests in the heirs of the deceased wife subject to the Tesawalamai relating to its liability to be applied to the payment of debts. The other half remains the property of the surviving husband.

The judgment merely restates the provisions made by Ordinance No. 1 of 1911, section 22.

Section 16 of that Ordinanc