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NACHIPILLAI v. VELUPILLAI et al.
NLR34V216
1932 Present :
Garvin S.P.J. and Akbar J.
NACHIPILLAI v. VELUPILLAI et al.
152-D. C. (Inty.) Jaffna, 7,774.
Thesavalamai-Agreement by
child of first bed to abandon claim-Renunciation of inheritance-Validity.
Where, under the Thesavalamai, the respondent, who was the daughter of X by the
first bed, gave him a document, signed by herself and her husband in the
following terms: -
" Whereas, he (X), having conveyed as " Nintham " all the properties derived
from the mother (of the respondent) absolutely, has given jewellery to the value
of Rs. 300 for the share which ought to devolve on her out of his properties; we
have received the same and have executed and granted this deed of release,
declaring that we have no further right or claim over the properties movable and
immovable in his possession ". Held, that the respondent had not abandoned her
claim to a share in the intestate estate of X.
THIS
was an application for the administration
of the estate of one Kandar Murugesu. The appellant, as widow of the intestate,
applied for letters of administration, but in her application she omitted to
include the respondent, who was a daughter of the deceased by the first bed,
among the heirs and to give her notice. The respondent intervened and claimed a
share of the estate according to the Thesavalamai. The appellant contended that
she had surrendered her rights to the estate by the deed in question.
De Zoysa, K.C. (with him
Weerasooria and Thillainathan), for appellant.- There are two facts in the
recital of the deed. First, the respondent had received all that she was
entitled to receive from her mother. Secondly, she received jewellery to the
value of Rs. 300. She took the jewels in lieu of the share which ought to
devolve on her out of his properties. If the document is treated as an
agreement, it is a good act enforceable at law (Godfrey v. Godfrey 1[3
Moore Privy Council cases 316].). If it is contended as being obnoxious to
public morality as the surrender of a future inheritance, it is submitted that
the receipt of Rs. 300 as dowry estopped the respondent from repudiating the
agreement.
H. V. Per era (with him Nadarajah), for first respondent.-An agreement not to
claim a future inheritance is prohibited under Roman-Dutch law as being contra
bonos mores. A spec successionis cannot be surrendered, ; (Burge, Volume IV.
236). The sum of Rs. 300 was given to compound for a larger sum due to the
respondent in the administration case and not as a consideration for the
release.
March 16, 1932. AKBAR J.-
In this testamentary case for the administration of the estate of Kandar
Murugesu, the appellant, as the widow of the intestate, applied for letters of
administration, but in her application she only made her children, who were
children by the second bed of the intestate, respondents and omitted to include
the respondent to this appeal, who is a daughter of the deceased by his first
bed as an heiress, and to notice her as a respondent to the application. The
respondent intervened and claimed a share of the estate according to the
Thesavalamai, but the appellant contended that she had forfeited such rights by
signing document " X " (see translation X1 and X2), whereby the appellant urged
she had given up all her rights to a share in the intestate estate and had
surrendered those rights. This is the sole question that has to be decided in
this appeal, namely, whether the respondent had given up all her rights to a
share of her father's intestate estate by document " X " or not. If she had
given up such rights, the respondent would fail in this appeal; and if she had
not, the appeal would have to be dismissed with costs, leaving it to the
respondent to make her claim with regard to specific properties belonging to the
intestate at the time of his death according to the Thesavalamai, on the footing
that she is a daughter of the intestate by the
