( 251 )
JIVARATNAM v. MURUKESU et al.D. C., Jaffna, 25,089.
Th&awajamai—Husband, and wife—Muthusam—Thediathettura—Land boughtby husband with money inherited by him—Separate property of husband.
According to the Thisawalamai of Jaffna, money inherited by ahusband and converted into land does not form part of the thedia-thettum. Such land should be treated as his separate property, if themoney can be ear-marked.
T was alleged in the plaint that upon the death of cneTamotharam, his executor, Selvanayagam, Bold the land
1 belonging to the deceased to one Suppramanian Chetty, and thatthe latter re-sold it to Selvanayagam in his private capacity ; thatthe price paid for it hy Selvanayagam was part of money whichhe inherited from his mother ; that he possessed the land till hisdeath in June, 1894, and that thereupon his executor sold it tothe plaintiff. Plaintiff now complained that defendant hadunlawfully ousted him, and he prayed for a declaration of title,restoration of possession, and damages.
The defendant admitted the sale of land by SuppramanianChetty to Selvanayagam, but denied that he bought the propertyout of muthusam inherited from his mother.
He pleaded that Selvanayagam bought it out of money acquiredby him and his first wife Tangamuttu, a daughter of one AppaChetty ; that when Appa Chetty died intestate, his heir leased hisshare to the first and third defendants (the second defendantbeing the wife of the first). The defendants denied havingousted plaintiff from the half share to which Selvanayagam wasentitled.
The District Judge framed the following issues :—Was this landsold on the 15th of June, 1883, to the late Selvanayagam duringthe lifetime of his wife Tangamuttu, or after her death.
And he refused to accept another issue suggested by plaintiff'scounsel, viz., whether the land in question was purchased frommoney inherited by Selvanayagam from his mother or withmoney belonging to the joint acquired estate of Selvanayagamand his wife Tangamuttu.
He made order as follows :—“ I refuse to add this issue. There“ is no provision of the Thisawalamai known to me, providing“ that if a person inherit cash or movable property, and after*“ wards purchase a land with the cash or price of the movable“ property, such acquired land becomes part of the muthusam, or
( 252 )
1896.“ inherited estate. I hold that the muthusam is the property*
September JO.««jn the state in which it is inherited, and that the profits, &c.,Withkbs, J. “ realized and re-invested cannot be held to create a new class of“ muthusam, and so on indefinitely.
“ This land, it is admitted, never formed part of Selvanayagam’s“ parent’s estate, but was bought by him during his wife’s life.“ He may, or he may not, have had a right to set-off when“ dividing the estate of himself and wife against the wife’s share“ a sum of money brought into their joint account as muthusam“ cash. The fact that he called this muthusam money in the deed“ of purchase, to which the wife is not a party, will not affect the“ right of the wife’s heirs to have this land treated as a joint asset.
“ It strikes at the root of the Thesawalamai to suppose that a“ man or woman can after marriage go on trading without i“ community in the proceeds of their muthusam property The“rights in those original properties remain sole rights, but all“ acquired property derived from them, by re-investment,“ exchange, accumulation, &c., pass into the joint account, subject“ as already remarked, to the original claim for the muthusam,“ as it was when the joint partnership as man and wife was“ undertaken.”
Plaintiff appealed against this order refusing the suggestedissue.
26th August, 1895. Ramanathan, S.-O., appeared for appellantand cited Mutukistna’s Thesawalamai, pp. 33,130,182, 260, 325.
Sampayo, for respondent.
Cur. adv. vult.
10th September, 1895. Withers, J.—
We have to decide an interesting point in the customary lawof Jaffnapatam, and it is this. Is land which has been acquiredby one of the spouses during wedlock with money bequeathedunder a will and received during wedlock to be regarded at thedeath of that spouse as his or her separate and exclusive propertydevolving on his or her heirs at customary law ? The differentkinds of property when speaking of married persons are wellknown. What is brought into the marriage by the husband iscalled muthusam property, what is brought in by the wife iscalled chidanam (stri-dhanam) translated dowry property.
The one is the husband’s separate property, to which the sonssucceed; the other the wife’s, to which the daughters succeed.What is acquired (thedapatta) during wedlock is called (thedia•thettum) acquired property. Acquired property is not further
( 253 )
defined in the Thesawalamai. It is regarded as joint estateof the spouses, and is divided among the sons and daughterson the death of the surviving parent.
Chapter IV., section 8, of the above Code declares that a gift ofland to either spouse is to be regarded as separate property of thespouse who has received the gift, though if alienated during themarriage no compensation is to be made out of the other spouse’sestate. Only the proceeds (? profits) of the land are to swell thethediathettum. The same rule is applied to slaves and cattleor anything else which may be increased by procreation, withthis difference, that the progeny remains the property of thespouse presented with the original slave or animal.
Were donated land, slaves, and cattle excluded from thethediathettum because of the importance of such kinds of propertyto the fortunate owner of them ?
But what of a bequest of money converted into land by thedonee ?
Is this within the principle of that rnle ?
In Toussaint v. Vesentipulle and others (1856), reported inMutukistna, p. 325, the then District Judge held that a bequest ofmoney came within the principle of the section just referred to.
This was (apparently) an action by a creditor of a husbandto recover a debt contracted by the latter during coverture, and hesought to levy a sum of money as assets of the thediathettum,and so available for his writ.
It was contended that this was not a pure bequest of money, butpayment for services rendered by the wife, who however claimedit as separate property by donation.
The Supreme Court set the judgment aside, being of opinionthat the creditor appellant was entitled to draw the money for hisjudgment debt. No reason was given in the judgment.
It may have been that the Supreme Court considered the moneyto'be compensation, and therefore money acquired by the wife fordomestic services rendered by her, and not to be a free unearnedgift. The distinction is important in view of the opinion of JudgeWood, given in 1848, that “the only property in which both“ spouses have a material interest and is in common is the“ property (? rents, incomes, and profits) arising from each of their“ respective properties ” (the muthueam and chidanam), or “ what“ is acquired by their own exertions during their marriage.”This opinion received the sanction of Sir Anthony Oliphant, C.J.,in Valliama v. Loopen (Mutukistna, p. 260).
It was held by Judge Price in the case of Sanmogam v. Sinne-cooty (Mutukistna, p. 33) that a parcel of land “ bought with
BtftemUr 10.Wxmaa, J.
( 254 )
1IH. “ money hereditary property of the deceased,” one SangarapillaiSeptember 10. during his marriage with his first wife, did not form part of theirBaown, J- ihediathettum, but was his separate property devolving accordingto the country law. ThiB was affirmed in appeal by Sir CharlesMarshall, C.J.
It does not appear from the report what was meant by “ heredi-“ tary property,” whether muthusam, oddly enough translated“ hereditary property ” in Mutufcistna, p. 1 (in which case therecould be no doubt that the land if acquired by capital moneywould be regarded as muthasam and separate estate), or money towhich the husband succeeded as next of kin. If the latter, thedecision seems to me to be in favour of the Solicitor-General, whocited it. If it was acquired during marriage by descent, why didit not fall into the thediathettum ?
It could be excluded only because it was a free gift and notacquired by the executors of either spouse, or the production ofthe profits, or income, or revenue of the separate property ofeither spouse.
It really comes to this, that according to the Thdsavalamai asinterpreted by decisions, the separate property of spouses is thatwhich either party brings to the marriage or acquires during themarriage by inheritance or donation made to him or her particularly,while common property is restricted to the rents, revenue, andincome of their separate estate, and what is acquired by theexertions of the spouses.
The Solicitor-General, if I understood him rightly, carried hisargument to this length; and though at the time I was not preparedto assent to that view of the law, I am inclined to do so now, inview of the second case above mentioned. As, however, it wasassumed for the purposes of argument, and for that purpose only,that plaintiff’s predecessor in title bought the land in questionwith .his mother’s legacy, the case must go back for that questionof fact, inter alia, to be determined, for unless the money can beear-marked, so to speak, the plaintiff’s case on that point fails.
Set aside and send the case back for trial, with the opinion ofthis Court that the land is to be treated as the separate property ofthe purchaser if he purchased it with money specially donated tohim by his mother, but not otherwise.
I agree. Some previous owner of my copy of Mutukistna’swork has corrected the text on page 261 into, “is the profit*“ arising from each of their respective properties,” which wouldseem to be more in accordance with the sense and principle.
( 255 )
The precedents cited by the Solicitor-General from pages 1821895.
and 267 certainly show that investments or transmutation of the September to.character of the property will not affect the rights which belonged bkowkb, J.to it in its original character, and the decision on page 130 wouldappear to have proceeded upon the consideration that the fundout of which the lands were purchased was not ear-marked.
JIVARATNAM v. MURUKESU et al