Chelliah V. Kadiravelu Et Al.,

1931  Present: Lyall Grant and Drieberg JJ.

CHELLIAH v. KADIRAVELU et al.

29-D. C. (Inty.) Jaffna, 7,238.

Thesawalamai-Illegitimate woman-Intestacy-Dowry property-Contest between heirs of mother and husband.

Where a woman of illegitimate birth, subject to the Thesawalamai, died intestate leaving her husband and no issue,-

Held, that the legitimate issue of the mother of the intestate was entitled to succeed to her dowry property to the exclusion of her husband.

APPEAL from an order of the District Judge of Jaffna.

H. V. Perera (with him Supramaniam), for administrator, appellant.

Hayley, K.C. (with him Thillainathan), for respondents.

October 14, 1931. LYALL GRANT J.-

The question here is whether according to the Thesawalamai as amended by Ordinance No. 1 of 1911 the husband of a bastard succeeds to her dowry property in preference to the children of her mother or vice versa.

The answer depends primarily on the construction of section 37 of Ordinance No. 1 of 1911. The learned District Judge has confessed that he cannot understand the section and he falls back on {he well-known principle of Thesawalamai that dowry property of a wife reverts in the absence of children to her own family. The husband has no rights of inheritance to the dowry property of the widow or indeed to any of her property except on failure of all other heirs.

Section 37 of Ordinance No. 1 of 1911 provides that-

" When an illegitimate person leaves no surviving spouse or descendants, his or her property will go to the mother, and then to the heirs of the mother so as to exclude the Crown."

Section 38 may conveniently be considered here.

It runs:-

" In all questions relating to the distribution of the property of an intestate where this Ordinance is silent, the provisions of the ' Matrimonial Eights and Inheritance Ordinance, 1876 ', and such laws as apply to the Tamil inhabitants of the Western Province shall apply."

Admittedly, the common law of the Island, i.e., the Roman-Dutch, applies to Tamils of the Western Province.

The Matrimonial Eights and Inheritance Ordinance, No. 15 of 1876, provides as follows: -

" Section 37. Illegitimate children inherit the property of their intestate mother, but not that of their father or that of the relatives of their mother. Where an illegitimate person leaves no surviving spouse or descendants, his or her property will go to the heirs of the mother, so as to exclude the Crown."

It will be noted that this Ordinance makes no provision for what happens when the illegitimate person leaves a mother alive and in this respect differs from the Ordinance of 1911.

The 1876 Ordinance refers one to the rules of Roman-Dutch law as it prevailed in North Holland, and Walter Pereira in his Laws of Ceylon, page 481, says that in North Holland all the property went to the relatives of the maternal line. This has to be considered in conjunction with the rule prevalent in Zealand which is set out immediately before at page 480.

The Zealand law allowed the relatives of the maternal line to take one-half only, the remainder going to the Crown. If the mother was alive all went to the Crown and Van der Keesel, 308, from whom Pereira quoted, does not say that in North and South Holland the rule was different in this respect.

The law regard Zealand is taken from Grotius II; 31, 4.

It may be mentioned that the South African law, founded on the Political Ordinance of 1580; on the States General Edict of 1594, and

on the modification contained in the Dutch East India Company's Charter of 1661 allows succession by the mother, whom failing, by her children, in preference to the husband.

I do not think it is necessary to consider further in the present case the question of whether the mother of an illegitimate child can by our law succeed in any event.

The mother is dead and the question we have to decide is, not whether she can succeed, but whet

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