GARVIN A.C.J.—Avitchy Chettiar v. Rasamma.
[Dalton J.—If a person has money before marriage and converts itinto property during marriage he loses it?]
That is so. Even under the Marriage Ordinance the immovableproperty of the wife is hers while the movables belong to the husband.But if a wife during marriage sells her property the money will vest inthe husband. Every acquisition must be out of the funds of one or otheror both of the spouses. The character of such property will be thecharacter of the fund with which it was acquired. If the character of theproperty acquired depends on the source of the consideration there wouldbe no thediathetam at all. There is no common property at the time ofmarriage.
[Dalton J.—The thediathetam of the old law is defined in section 1.]That does not correspond with the definition in section 21. Thedia-thetam there includes only profits arising out of property. Freedom ofalienation is essential to property.
R. L. Pereira, K.C. (with him Soertsz, K.C., and Chelvanayagam), fordefendant, respondent.—Section 21 must be read with the earlier sections.These rules are merely for the purpose of ascertaining how the propertyis to be inherited. Property is placed within three categories, i.e., fromthe father, from the mother and common or thediathetam property, for thepurpose of showing how property is to devolve on the heirs. The issuein this case was whether the property was bought out of the dowry moneyof the defendant. This issue of law was not raised in the lower Court.The point is not taken in the petition of appeal. The law was taken forgranted by the parties.
Section 21 does not contain an exhaustive definition of thediathetamproperty. It is not even a definition at all. It is for the limited purposeof inheritance and that only. Property is divided into property from thefather’s side and property from the mother’s side. All other property iscaught up by thediathetam. It can include all earnings and all savingsmade by either husband or wife. The purpose of the law is to conservefor the males what comes from the paternal side and for the females whatcomes from the maternal side. The legislature here intended to conserveproperty in the same manner as it devolved. Section 21 means propertyacquired for valuable consideration by either husband or wife other thanproperty referred to in sections 19 and 20, i.e., mudusam and urumai ordowry. This interpretation gives effect to the custom prevailing in theNorthern Province of preserving paternal property among the sons andtheir descendants and maternal property among the daughters and theirdescendants. Property acquired from dowry money cannot be calledthediathetam because that would be to make the three classes alreadymentioned interchangeable. See the judgment of Sir A. Kanagasabai inNalliah v. PonnammahThe valuable consideration must itself bethediathetam.
Cur. adv. vult.
December 20, 1933. Garvin A.C.J.—
In execution of a decree against the intestate estate of one V. C. Kanaga-sabai, deceased, the Fiscal seized an estate called Mahawatte, situated atGiriulla. The premises were claimed by Rasamma, the widow of the
1 22 N. L. R., at 300.
GARVIN A.C.J.—Avitchy Chettiar v. Rasamma.
deceased, as being her separate property purchased by her upon a deedbearing No. 1,669 of November 3, 1924. In due course her claim wasupheld. The plaintiff then brought the present action under the provi-sions of section 247 to have the premises declared liable to be seized andsold in execution of the decree above referred to. Several issues wereframed and among these the principal was based upon the plaintiff’scontention that the premises in question notwithstanding that they stoodin the name of Rasamma, formed part of the thediathetam of the spousesand was therefore liable to be taken in execution for the debts of either ofthe spouses. The learned District Judge has found on all these issuesand has as a result dismissed the plaintiff’s action. We see no reason todisturb the learned District Judge’s findings on the facts nor to differfrom him on the decisions he has taken save on the question whether thepremises formed part'of the thediathetam of the spouses.
Kanagasabai and Rasamma were natives of Jaffna and were personsto whom the customary law known as the Thesawalamai applied. Theywere married on September 10, 1919, after Ordinance No. 1 of 1919 cameinto operation. Their respective matrimonial rights must therefore beascertained in accordance with the provisions of that Ordinance. Thesepremises were clearly acquired during the subsistence of the marriagesince Kanagasabai died in May, 1926, nearly two years after the acqui-sition. But it has been found as a fact that the sum of Rs. 25,000being the consideration for the transfer was paid by Rasamma out ofmoney which formed part of her separate estate, that money being thecash dowry which was given to her by her parents. Under the law as itobtained prior to the enactment of Ordinance No. 1 of 1911 propertyacquired during the subsistence of such a marriage by one of thespouses and paid for with money which formed part of his orher separate estate was regarded as the property of the spouse whopurchased it and did not form part of the thediathetam property—seeJivaratnam v. Murukesu'. But inasmuch as Kanagasabai and Rasammawere married subsequent to the date when Ordinance No. 1 of 1911came into operation the question must be determined with reference tothe laws enacted therein.
Section 21 of that Ordinance is as follows:—“The following propertyshall be known as the thediathetam of any husband or wife :
(o)Property acquired for valuable consideration by either husband orwife during the subsistence of marriage.
(b) Profits arising during the subsistence of marriage from the propertyof any husband or wife ”.
It -is then provided in section 22 that “ .the thediathetam of each spouseshall be property common to the two spouses, that is to say, although it isacquired by either spouse and retained in his or her name, both shall beequally entitled thereto. Subject to the provisions of the Thesawalamairelating to liability to be applied for payment or liquidation of debtscontracted by the spouses or either of them on the death intestate ofeither spouse, one-half of this joint property shall remain the property ofthe 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
> 1 K. L. II. 351.
GARVIN A.C.J.—Avitchy Cliettiar t>. Rasamma.
spouse shall take for his or her own separate use one-half of the jointproperty aforesaid”. If this property falls within either of the twoheads (a) or (b) of section 21, then clearly it would be liable to be takenin execution in this case since it is liable “ to be applied for payment orliquidation of debts contracted by the spouses or either of them”. Noquestion arises here as to profits arising during the subsistence of themarriage. The sole question is whether the premises in question are ofthe character of the property which is declared by section 21 (a) to bethediathetam. Now if the words of that sub-section be given their ordinaryeffect it would seem that there were two conditions which propertyclaimed to be thediathetam must satisfy, first that it was acquired forvaluable consideration by husband or wife, and secondly that it shouldhave been acquired during the subsistence of the marriage.
The property which is claimed in this case by Rasamma by virtue ofthe deed No. 1,669 of November 3, 1924, was acquired for valuableconsideration and it was acquired during the subsistence of the marriage.It was urged, however, that notwithstanding the provisions of this sectionproperty acquired for valuable consideration provided by the spouse whohad acquired it out of funds which formed part of his or her separateestate was not thediathetam but remained his or her separate property.Counsel relied strongly upon the case of Nalliah v. Ponnammah,' in whicha Bench of two Judges (De Sampayo J. and Schneider A.J.) upheld asimilar contention and expressed themselves in language which indicatesthat they held the view that property acquired by a spouse out of fundswhich formed part of his separate estate “would receive the character ofthe money invested and would not be regarded as thediathetam”. Inview of this judgment it became necessary to have the matter arguedbefore a larger Bench.
The question before us must, it seems to me, be settled by the inter-pretation of the language of the legislature. So far as it relates to thematter now before us these words are as follows: —“ Property acquiredfor valuable consideration by either husband or wife during the sub-sistence of marriage ”. These very general words are followed by nowords of limitation nor of exception. Indeed, very similar words appearin the very next section which declares that “ the thediathetam of eachspouse shall be property common to the two spouses ”—and then by wayof explanation,—“ although it is acquired by either spouse and retainedin his or her name ”. Once again emphasis is laid upon the fact thatproperty acquired for valuable consideration during the subsistence ofthe marriage is thediathetam, notwithstanding that “it is acquired byeither spouse and retained in his or her name ”. Indeed, if any questionof ascertaining the intention of the legislature arises, the words of section22 would seem to indicate the intention that notwithstanding that theproperty was the separate acquisition of one of the spouses it came withinthe definition of “thediathetam” so long as it was an acquisition forvaluable consideration made during the subsistence of the marriage.
Whatever the law may have been prior to this enactment it is beyondquestion that where a matter has to be determined in accordance with itsprovisions the law prior thereto must be treated as repealed. Section 2
' 22 .V. L. li. 19*.
GARVIN A.C.J.—Avitchy Chettiar v. Rasamma.317
states that “so much of the provisions of the collection of customarylaw known as the Thesawalamai …. as are inconsistent with theprovisions of this Ordinance are hereby repealed ”, and moreover theOrdinance itself purports to be an Ordinance “ to amend the law relatingto the Matrimonial Rights of the Tamils who are now governed by theThesawalamai with regard to property and the law of Inheritance”.If regard be had to the scheme of the Ordinance it is clear that in respectof the matters dealt with therein it was intended to be complete andexhaustive. The principal matters which are dealt with by the Ordi-nance, are (a) Matrimonial rights of husband and wife with reference toproperty, and (b) Inheritance. Sections 6 to 10 are concerned with thematrimonial rights of spouses. Section 6 defines the matrimonial rightsof spouses with regard to property solemnized before the commencementof the Ordinance. Section 7 expressly declares that the rights of thosemarried after the Ordinance must be governed by the Ordinance. Sec-tion 8 states what property is to be deemed the separate property of thewife and defines her rights in respect of this property. Similarly section 9relates to the separate property of the husband. Then follow certainother provisions relating to the powers of the husband and wife and thespecial powers vested in District Courts to supply consent where consentis necessary in certain cases and to settle disputes between husband andwife. Then follow provisions relating to the succession to the estates bythe persons affected by the provisions of the Ordinance. For the purposesof inheritance there is a different classification of property embodied insections 17, 18, 19, 20, 21, and 22.
Now it has been urged that section 21 is not a definition of “thedia-thetam, and alternatively that if it be a definition it is a definition purelyand simply for the purposes of inheritance. Section 22, in so far as itspecially declares property known as thediathetam liable for the debts ofeither spouse, sufficiently indicates that what is to be known as thediathe-tam is not indicated solely for the purposes of inheritance. But sections8 and 9 and in particular section 8 provide a complete answer to thiscontention. In the first place when enumerating those subjects ofproperty which are to be regarded as the separate estate of the wife thereis included property to which she was entitled at the time of her marriageand also property to -which she became entitled during her marriage“ except by way of thediathetam as hereinafter defined ”. There is herea statement by the legislature that section 21 embodies a definition of" thediathetam. ” In the next place it is clear that it was so defined notonly for the purposes of inheritance but also for the purpose of ascertainingat any given time of what the separate property of a wife or husbandconsisted, for that could only be definitely ascertained after the propertywhich formed the thediathetam had been excluded from the property towhich the husband or wife became entitled during marriage. It ismanifest that for both these purposes it is necessary that there shouldbe a definition of what is to be deemed thediathetam if the scheme of theOrdinance is to be carried into effect. If regard be paid to the schemeand purposes of the Ordinance it seems to me that it has provided such adefinition in section 21, and it has done so not only for the purposes ofinheritance but generally for the purposes of the Ordinance. The
de Zoysa v. Bour & Co.
scheme of the Ordinance is thus complete. The classification of propertyfor the purposes of inheritance is followed by rules which regulate thedevolution of that property. In respect of any property which does notfall within any of those classifications it is declared that the provisions of“ The Matrimonial Rights and Inheritance Ordinance, 1876 ”, shall apply.Whatever the law may have been prior to the enactment of this Ordinancethere seems to be no room for any doubt that in respect of the mattersspecially dealt with by the Ordinance it is the Ordinance alone which isdecisive.
It only remains therefore to interpret the language of the legislatureas it appears in section 21. The meaning of the words used is clear andthere is no reason to suppose that the legislature did not intend that thesewords should be interpreted in their plain and ordinary sense. Indeed,it is quite impossible to find any justification for expanding the sectionby the addition of words which would exclude from the subjects ofproperty which appear to be caught up by the section all property acquiredby either spouse for consideration provided by him or her from a separateestate.
In Hie case before us the premises were acquired for valuable consider-ation during the subsistence of the marriage and therefore falls withinthe definition of thediathetam.
The judgment under appeal must be set aside and decree entered interms of the prayer of the plaint. The appellant is entitled to his costsboth here and below.
Dalton J.—I agree.
Drieberg J.—I agree.
Appeal allowed.