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Present: Porter J. and Garvin A; J.
PONNACHCHY v. VALLIPURAM et al.
94—D. C. Jaffna, 15,869.
Tesawalamai—Property acquired by wife in her name—Right of husband
to donate half share of same.
Where property is “acquired” by a wife during marriage anddeed is executed in her favour, it vests by law in both the spouses.
Where a wife acquired a property during marriage and the deedwas in her name only, and where subsequent to the purchase thehusband lived in separation from his wife, and donated a halfshare of the property to the plaintiff,—•
Held, that the donation was valid though the conveyance wasin the name of the wife only.
ANTHAPPAR and his wife Letchimippillai, the third addedparty, purchased by deed, which was in the name of the third
added party alone, dated December 28,1881 (marked PI), one-fourthshare of the land sought to be partitioned in this action. Kanthap-par who has been living in separation from his wife, the third addedparty, donated one-eighth share of this land as his share of thediathe-torn to the plaintiff-appellant by deed No. 2,466. dated September29,1918 (marked'P 2), and the third added party sold her one-eighthshare to the defendant. The plaintiff-appellant brought thisaction to partition her one-eighth share, and the Counsel for third
added party took objection -in limine on the date of trial to theplaintiff’s maintaining this action, on the ground that the legal titlefor one-eighth share still vested with the third added party, and theplaintiff-appellant derived no title by the donation P 2 in her favour,and the learned District Judge held as follows :—
I agree that as the conveyance of an undivided one-fourth of thisland was in favour of Ledchumy, the legal title is in her subject nodoubt to certain equitable rights which Kanthappar would have underthe Tesaivalamai and by our law of trusts.
Both spouses being alive, I am oi opinion that the conveyance of one-eighth of the land by K&nthappar who has not got the legal title to theplaintiff, did not pass the legal title. (See judgment of Bertram C.J. inSellachchy v. Visuvanathan Chettyx, and unless the party who asks for apartition has the legal title to the share he claims he cannot maintain asuit for that purpose (Silva v. Silva1).
I therefore dismiss plaintiff's action, with costs of the third addedparty.
Balasingham, for .the plaintiff, appellant.—The right of thehusband to donate a half of the acquired property was neverquestioned in Sellachchyv. Visuvanathan Chetty (supra). The passagein. the judgment of Bertram C.J. relied on by the District Judgerefers to property situated outside the Northern Province. Theprinciple of the Roman-Dutch law that whether a property isacquired by the wife or husband it still becomes common propertyand can be dealt with by the husband applies to acquired propertyunder the Tesawcdamai. The only difference is that under the Tern-walamai spouse can give a donation of only one-half of the commonproperty. Even if the wife acquires property in her name, it isstill liable for the husband’s debts both under the Roman-Dutch lawand the Tesawalamai.
Joseph, for the defendant, respondent.—It has been held in a
series of cases that without a notarial conveyance no title passes.
Here the deed was in favour of the wife alone. Bertram C.J. has*
held in the Full Court case referred to that where a husband boughta property in his name* the wife hasonly a right to call upon him orhis heirs for a transfer of one-half. Here the parties lived in separa-tion, and therefore the husband cannot deal with the wife’s property.See 60—D. C. Jaffna, 16,171, S. C. Min., July 11,1923.
[Garvin J.—That case refers to property acquired after separa-tion.
Cur. adv. wit.
August 2, 1923. Porter J.—
This is an appeal from a judgment in a partition action. In thisappeal it would appear that a certain Ambalavar Kanthappar andhis wife Letchimippillai, the third added party, purchased by deedwhich was in the name of the third added party alone, bearing
» (1922) 23 N. L. R. 97.* (1918) 19 N. L. R. 47.
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No. 910 and dated December 28, 1881 (marked P 1), a one-fourthshare of the land sought to be partitioned in this action. The saidAmbalavar Kanthappar, who has been living in separation fromhis wife, donated one-eighth share of this land to the plaintiff-appellant by deed No. 2,456 dated September 29,1918 (marked P 2)and the third added party sold her one-eighth share to the defendant.The plaintiff-appellant brought this action to partition her one-eighth share, and the learned District Judge dismissed the plaintiff’saction with costs on the ground that the plaintiff has no legal title,inasmuch as the conveyance by the said Kanthappar did not passthe legal title to the plaintiff. It will be noted that Kanthapparby the conveyance to the plaintiff merely donated his own share,half, which vested in him by operation of law. The whole matteris fully discussed in Sedachchy v. Visuvanathan Cketty (supra), whichlaid it down that the husband had no power to gift more than a halfshare of acquired property, and by Garvin A.J. that at thetime the property was acquired, it vested by law in both the spouses.I would, therefore, allow this appeal, and set aside the judgment,and send the record back to the District Court. . The appellant isto have the costs of this appeal and of the Court below.
Gakvtn A.J.—I agree.
PONNACHCHY v. VALLIPURAM et al