Chelliah v.' Sinnatamby.
Present: Moseley J. and Keuneman A.J.
CHELLIAH et al. v. SINNATAMBY et al.
114—D. C. Jaffna, 10J26
Thesawalamai—Thediatetam property—Death of one spouse—Right of adminis-trator to sue for the property—Assignment by surviving spouse of chose-in-action after death of other spouse.
Where one of two spouses subject to the Thesawalamai dies, the wholeof. the thediatetam property vests in the administrator for purposes ofadministratioriT(.
Where a person obtains from a surviving spouse an assignment of his -share of a chose-in-action, the assignment is subject to the right of theadministrator to claim the whole of the chose-in-action for purposes ofadministration._
Velupillai v. Arumugam (8 Times of Ceylon L. R. 18) followed.
^^PPEAL from a judgment of the District Judge of Jaffna.
N. Nadarajah (with him S. Soorasangaran), for third defendant andadded-defendants, appellants.
P.Navaratnarajah, for plaintiffs, respondents:
KEUNEMAN AJ.—Chelliah v. Sinnatamby.578
December 21, 1937. Kexjneman A.J.—
The plaintiffs in this case were the administrators of the estate ofThangamuttu, who had been married to the third defendant. By bond13,294 of January 13, 1931, the first and second defendants boundthemselves to pay to Thangamuttu and her husband the third defendantthe sum of Rs. 500 and hypothecated certain properties for securing thatsum. Incidentally, the translation of this document is not accurate in sofar as it suggests that the first and second defendants undertook to pay“to him”. The deed has been read by the Supreme Court Interpreterl^udaliyar, and it seems clear, and is admitted that the undertaking wasto pay “ to them ”. Nothing however turns upon this error, as all partiesappear to have accepted the position that the bond was in favour ofThangamuttu and the third defendant her husband. It was held in thecase and it is not disputed in appeal that Thangamuttu and the thirddefendant were subject to the Thesawalamai and that this bond wasthediatetam or acquired property of the spouses. '
The plaintiffs sued the first and second defendants on this bond in thisaction. They also joined the third defendant, averring that the amountadvanced on the said bond was money belonging to Thangamuttu, whichhad been raised on the said date by mortgaging her dowry property.They stated that the debts still remained unpaid and the amount due onthe bond was required for discharging this debt. The first and seconddefendants did not deny their liability on the. bond and did not file answer.The third defendant alone filed answer, averring that h§ was entitled toone-half of the amount due on the bond and that he had assigned hisinterest to the added defendants on a bond 664 of July 13, 1935. It isadmitted that this bond was executed after the death of Thangamuttu.
On the trial date, only the plaintiffs and the third defendant and addeddefendants appeared. It was agreed that added defendants be added asparties because they had obtained an assignment of whatever interestthe third defendant had in the bond before action was filed and the learnedDistrict Judge allowed this and the case went to trial on the followingissues:—
Was the entire sum lent on the bond the property of the deceased?,
*Even if not, and the property, is property earned during the
marriage as the defendants say, did the assignees derive anyright by obtaining an assignment after the death of deceased?
In any event, are the plaintiffs in their representative character
-entitled to recover the entirety for distribution in the adminis-• tration case? .
Was the money received as a loan on bbnd 13,292 of January 13,
1931, obtained by the deceased for payment to the third defend-ant ■ for money which the third defendant had spent on herfather’s account at her request?
Apart from the third issue, it is difficult to understand how the mattersraised in these issues came to be tried in this action and at this stage.Neither Counsel for appellant nor Counsel for respondent could supportthe relevancy of these issues. But a great deal of time has been spent onthe examination and determination, of these issues. The positionfinally arrived at was that the bond sued upon was thediatetam. . I
KEUNEMAN A.J.—Chelliah v. Sinnatamby.
-consider the first, second and fourth issues irrelevant at this stage of thecase and hold accordingly. The questions decided under those issuesmay be raised on any subsequent proceedings. The only real questionwhich could be determined was whether the plaintiffs were entitled tobring this action. The learned District Judge in the result gave judgmentfor plaintiffs with costs, subject to the rider that the amount of the decreebe primarily appropriated for the payment of the joint bond given byThangamuttu and her husband, third cjefendant.
From this finding the third defendant and the added defendants appeal.
A preliminary objection has been taken to the appeal on the ground thatalthough the petition of appeal was stamped on the footing that therewere two distinct appeals, stamps were supplied for the certificate ofappeal and the Supreme Court decree on the footing of only one appeal.It was argued that in reality there should have been two distinct appeals.
I cannot agree w.ith this contention. The third defendant and theadded defendants had the same Proctor appearing for them in the DistrictCourt. The grounds on which they base their appeal, and the relief theyask for is the same. I think that they are entitled to join in the oneappeal.
The substantial point taken in the appeal was that as the bond suedupon was in the names of both Thangamuttu and the third defendant,the plaintiffs as administrators, were only entitled to sue for the recoveryof half the amount or alternatively, that-the decree for the whole amountshould be not in' favour of the plaintiffs only but in favour of the plaintiffsand the'added-defendants.
The learned District Judge in giving judgment for the plaintiffsdepended on the case of Velupillai v. Arumugam In this caseBertram C.J. considered the effect of section 22 of Ordinance No. 1 of 1911which applies to the present case also and stated: —
“ Under the Thesawalamai there arises between the husband andwife in all property acquired during the marriage of partnership byoperation of law. All such property from the moment of its acquisitionis the common property of the two spouses. On the death of either ofthe spouses one half remains the property of the survivor and the otherhalf vests in the heirs of the deceased, subject to its liability to beapplied for payment of debts contracted by the spouses or either ofthem
The learned C.J. went on to consider the English law of partnership anddoub.ted whether there is any material difference between a surviving-partner under the English law and a surviving spouse under the Thesa-walamai and thought that prima jacie under the Thesawalamai a survivingspouse might be considered competent to sue or give a discharge for thejoint debt. He was of opinion, however, that section 38 of OrdinanceNo. 1 of 1911, had affected the situation and that in consequence the lawapplicable to this point was the Roman-Dutch law. He added:—
“ I take it under the pure Roman-Dutch law half of the chose-in-action would vest immediately in the wife. She ceuld sue for and givea discharge in respect of her half share of the debt, though she wouldno doubt be accountable to any creditor of the estate.
1 3 T. L. R: 18.
KEUNEMAN A.J.—Chelliah v. SiHnatamby.
“ But this position is modified in two ways: firstly, by a series ofcases culminating in the decision of the Full Court in Cantlay v. Elking-ton It was there held that when one of two spouses died, marriedin community, the entirety of the common estate vests in the adminis-trator of such deceased spouse for purposes of administration ….When the estate exceeds Rs. 1,000 in value …. the situationis further modified by the operation of section 547 of the Civil ProcedureCode, which bars an action for the recovery of any debt due to anestate which exceeds in value the sum of Rs. 1,000 unless grant ofprobate or letters of administration shall have been issued.
“ If the law thus developed be applied to the present case it becomesclear that for the jpurposes of administration the whole of the thedia-tetam would vest in any administrator ultimately appointed and thatthe wife as a person on whom a share of the thediatetam devolves at herhusband’s death could not, at any rate in a case where the entire estateexceeds Rs. 1,000 sue for the recovery of her interest from the debtorunless probate or letters of administration had been' issued ”.
It should be noticed in the present case thatf the subject of the suit isalso a chose-in-action. It is clear that the estate was of such value thatletters of administration should have been obtained. In the casereported in Velupillai v. Arumugam (supra) a debtor who claimed that hehad paid a half share to r surviving spouse was held not to have been dis-charged, but was compelled to pay the whole amount of the bond to theadministrator of the deceased spouse. I am of opinion that any personWho obtains an assignment from a surviving spouse, after the death ofthe deceased spouse, as in the present case, is also subject to the right ofthe administrator to claim the whole of the chose-in-action for thepurposes of administration.
The decision in the case of Velupillai v. Arumugam would accordinglyapply to the present case. Counsel for appellants seeks to differentiatethat case and the earlier cases on which it depends. In the first place itis argued that this rule is applicable where the chose-in-action wasoriginally only in the name of the deceased spouse, and that it has noapplication where the chose-in-action was in the name of the survivingspouse, or in the names of. both the deceased and the surviving spouse.We are not immediately concerned with the case where the chose-in-actionstood in the name of the surviving spouse alone at the termination of thecommunity or partnership and that case may well be left for determinationwhen it arises. In the present case, the mortgage bond was in the nameof both spouses. If we compare the case of Velupillai v. Arumugam wefind that the facts are stated thus by Bertram C.J.: “In this case ahusband and wife in the Jaffna Peninsula acquired as part of their thedia-tetam a mortgage bond for Rs. 500 ”. This is compatible with the spouseshaving either obtained a mortgage bond in their names or with theirhaving obtained an assignment of a bond in their names.
Again in none of the cases cited is any point made of the fact that theproperty was actually in the name of one spouse or the other; or in thenames of both. Bertram C.J. rested his decision on the broad propositionthat when one of two spouses dies married in community, the entirety of
1 9 N. L. B. 168.
KKUNEMAN AJ.—Chelliah v. Sinnatamby.
the. common estate vests in the administrator of such deceased spousefor purposes of administration. This proposition he took over from thelanguage of the Judges in Cantlay v. Elkington (supra):In this case the
proposition in similar language appears to have been adopted byLasceUes C.J., Middleton and Wood Renton JJ. In fact these Judgesthemselves take this proposition over from two earlier cases, Perera v.Silva1 and Nonohamy v. Perera As regards Perera v. Silva the broadproposition was accepted by Burnside C.J., but Lawrie J. may be regardedaS' not having given his assent to the proposition. In Nonohamy v.Perera, however, both Judges, Burnside C.J. and Withers J., accepted this,and it was subsequently endorsed in the. case of Cantlay v. Elkington. I.think it is too late' now for USf even if we had the power to do so, tobase our decision on a narrower ground.
Emphasis was also laid on the language of Burnside C.J. in Nonohamyv. Perera: “ I am of opinion that administration is necessary on the wholeestate of which an intestate may die possessed and not simply on the valueof the deceased’s share of the community ”. At any rate, in a case likethe present where the bond stood in the names of both spouses, I thinkit is not possible to argue that the deceased spouse was not possessed ofthe assets at the/time of her death.
It was also argued that under the Roman-Dutch law the position of ahusband was very different from that of the wife, and that the rulepropounded only applied to the case of the devolution of the Commonestate on the death of the husband. On this point, again, the languageof the decisions does not1 support the proposition.' The only Judge inthis series of cases who comments on this difference is Wood Renton J. inCantlay v. Elkington (supra). The language of the other Judges coversthe case of any spouse dying possessed of a common estate. I do hot my-self think that the point argued has force.
In substance then, the judgment of the learned District Judge is rightand I affirm it and dismiss the appeal. I have already held that thefindings on issues 1, 2 and 4 are irrelevant at this stage of :.ne proceedings,and have reserved to the parties, the right to make any claims they mayhave in a proper proceeding. It follows that the- rider is also necessary.Undoubtedly, however, the administrator' will have in a proper proceedingto account for all moneys recovered him.
As regards costs, the respondents are entitled to the costs of this appeal.The order for costs in the Court below as against the first and seconddefendants is not involved in this appeal and will stand. The learnedDistrict Judge h'as awarded to plaintiffs* the costs of the contest againstthe third defendant: I thing a good deal of time has been unnecessarilyspent in the case on issues-1, 2 aricl^4 and .that the plaintiffs and the thirddefendant were equally to blame for- jliis. In the circumstances I orderthat the plaintiffs should bo . ntitl*/ only to half the costs of the contestin the Court below against the tHr * ’efeudarift
Moseley J.—I agree» a c. L. R. 150.
* SC. h. R. 153.
PRpfran AT TUB OBSL0N GOVERNMENT PBBfiS. COLOMBO
CHELLIAH et al. v. SINNATAMBY et al