1963 Present : Basnayake, C. J., and Abeyesundere, J.

MURUGESAPILLAI and another, Appellants, and MUTTIAH and others,
Respondents

S. C. 134 of 1961 (Inty.)-D. C. Chavakachcheri, 2095/P

Thesavalamai-Thediatheddam-Immovable property acquired during subsistence of marriage-Subsequent death of wife-Marriage of daughter thereafter- Acceptance of dowry-Sight of the daughter to inherit share of the acquired property of her deceased mother-Thesavalamai Regulation, s. 3, Part I, s. 3- Jaffna Matrimonial Rights and Inheritance Ordinance (prior to amendment by s. 6 of Ordinance No. 58 of 1947), s. 20 (2).

Under the Thesavalamai, a daughter who was given a dowry on her marriage that took place after the death of her mother did not, by accepting the dowry, lose her right to her share of her deceased mother's thediatheddam which vested in her by operation of section 20 (2) of the Jaffna Matrimonial Rights and Inheritance Ordinance in the form in which it stood prior to its amendment by section 6 of Ordinance No. 58 of 1947.

APPEAL from a judgment of the District Court, Chavakachcheri.

H. V. Perera, Q.C., with M. Shanmugalingam, for Plaintiff-Appellant.

C. Ranganathan, for the 1st Defendant-Respondent and for those substituted in place of the 2nd Defendant-Respondent.

April 5, 1963. BASNAYAKE, C.J.-

This is an action for partition of the land known as Innasimanalkadu situated at Thampakamam in Palai in the Pachchilaippali division in Jaffna District in extent twenty-five lachohams and twelve and one-fourth kulies of varaku culture with plantations thereon. The 1st plaintiff is the husband of the 2nd plaintiff. The 2nd plaintiff and the 2nd defendant are sister and brother. The 1st defendant is their father. Their mother, Mary Packiam, died on or about the 21st April, 1929. The subject matter of the suit is the acquired property of the wife of the 1st defendant and the mother of the 2nd plaintiff and the 2nd defendant. The question for decision is whether by accepting a dowry a child in whom property has, prior to the acceptance of the dowry, vested by operation of section 20 (2) of the Jaffna Matrimonial Rights and Inheritance Ordinance in the form in which it stood before its amendment by section 6 of Ordinance No. 58 of 1947, loses her right to the property so vested.

The plaintiffs prayed that this land be declared the common property of the 2nd plaintiff and the 1st and 2nd defendants and that it be partitioned and divided as follows :-

The defendants averred in their answer that by accepting the deed of dowry P3 No. 606 dated 26th October 1945 attested by notary Charles Rajakone Thambiah the 2nd plaintiff must be taken to have renounced her rights to any share in her deceased mother's acquired property including the land in question, and that she is therefore estopped in law from claiming a one-fourth share in the land which is the subject-matter of the suit. The land was purchased on deed P1 in 1925 during the subsistence of the marriage of the 1st defendant with the deceased Mary Pakiam. Upon Pakiam's death in 1929 a half share of this property vested in the two children, the 2nd plaintiff and the 2nd defendant, by virtue of section 20 (2) of the Jaffna Matrimonial Rights and Inheritance Ordinance. That provision read-

" Subject to the provisions of the Tesawalamai relating to liability to be applied for payment or liquidation of debts contracted by the spouses or either of them on the death intestate of either spouse, one half of this joint property shall remain the property of the survivor and the other half shall vest in the heirs of the deceased ; and on the dissolution of a marriage or a separation a mensa et thoro, each spouse shall take for his or her own separate use one half of the joint property aforesaid. "