Present; Schneider A.J.
SAMPASIVAM v. MANIKKAM ei al.26—G. It. Jaffna,14,083.
Tesawalainai—Right of husband to donate property acquired duringmarriage
A husband can give a donation of only one-half of the propertyacquired by him during marriage.
K mortgaged a piece of land acquired during his marriage to thesecond defendant, and subsequently executed a secondary mortgageof the land in favour of the plaintiff. K then donated it to his son,the first defendant. The plaintiff after the death of K sued the firstdefendant and seized and sold the land, and the proceeds weredeposited in Court. The second defendant (primary mortgagee)applied to draw the balance in Court after satisfying plaintiff’swrit. The claimants, who disputed the right of K to donate morethan half the land to first defendant, objected.
Held, that the primary mortgagee was not entitled to draw thebalance in Court.
HHHE facts appear from the judgment of the District Judge-L (6. W. Woodhouse, Esq.), and the Supremff Court.
After satisfaction of the decree in this case (which is one in favour ofthe secondary mortgagee against the mortgagor) by the seizure and saleof the land mortgaged, there is a balance over, which is deposited to thecredit of this case.
The question is whether the money should be drawn by the mortgagoror the primary mortgagee or certain parties who claim right by theoperation of the rules of the Tesawalamai to a half share of the land sold.
It should be observed here that it is “ the right, title, and interest ” ofthe mortgagor that has been sold under the plaintiff’s 'writ, and theamount realized is Rs. 460.
It is admitted by Mr. Niles, on behalf of his clients who claim a shareof the land, that the mortgagor had a right to mortgage the entire land.His clients’ wish to forego their rights to a share of the land and draw thesurplus in deposit. But I am satisfied they cannot do so until all themortgages on the land have been paid. They would have, therefore,to come in after the otti holder, and possibly after the mortgagor. I donot agree that the sum realized by the sale represents the true value ofthe entire land.
As regards Mr. Taxnbyah’s client, the otti holder, he has, in my opinion,the first right to any surplus that remains over after the secondarymortgage is paid off.
The decree is wrongly entered in the case. Second defendant wasmade defendant, not as debtor cm the secondary mortgage, but as ottiholder, who should have notice. (Plaintiff’s proctor will take steps tosee that the decree is amended.) Mr. Tambyah says that at the time of
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1921thesalebythe Fiscal, his clients’ writ was in the Fiscal’s hands, and that
*the Fiscal’s officer, who sold, made people at the sale understand that he
Sampaaivam was selling under both writs. But we can only go by the report of thev. Manikkam Fiscal that the sale was under this plaintiff’s writ. It may be that thesecond defendant’s writs was in the hands of the Fiscal, and this officersimply informed purchasers that there was second defendant’s writ inhis hands. It amounts simply to notice that the land was encumberedwith cm otti.
The second defendant’s writ should now be executed and the landsold, any balance over should come out of the surplus in deposit in thiscase. Anything over should go to the mortgagor.
The application of Mr. Niles’ clients, who really have no status in thiscase, is dismissed with the costs of the first defendant. The moneywill remain in deposit until Mr. Tambyah’s client has discussed the"mortgaged property. If the full amount of that decree is recovered bythe sale, the plaintiff in this case is at liberty to draw the amount indeposit, otherwise it will go in liquidation of the otti holder’s decree, andany balance over may be drawn by the mortgagor.
I make no order as to costs between the first and second defendants.
The claimants appealed.
Arulanandan (with him Joseph), for claimants, appellants.
Balasingham, for first defendant, respondent..
No appearance|or plaintiff or second defendant, respondent.
July 27,1921. Sghneedeb A.J.—
Kasinather, in 1874, during the subsistence of his marriage withone Parupathipillai, acquired title to an undivided half share of anallotment of land of 7£ lachams.
The whole of this land was subject to an otti in favour of the seconddefendant. In 1902 the land was partitioned by a deed executedby the owners, and a divided extent of 3f lachams was allottedto Kasinather. In September, 1917, he mortgaged this dividedportion to the plaintiff, subject*to the otti already mentioned, andthereafter donated it to the first defendant, his son. In July, 1918,Parupathipillai, acting without the authority of her husband, donateda half share of the said 3f lachams to her son, Ampalavanar, who, *by his last will, devised the same to the second claimant, who is thewife of the first claimant. Kasinather died on November 7, 1918.In September, 1919, Parapathipillai confirmed her donation to herdeceased son, recitingthat she did this as her husband had not joinedher making the original donation.
The plaintiff instituted this action in December, 1919, againstthe first defendant upon the allegation that the land had beendonated to him by the deceased mortgagor and against the seconddefendant as the otti holder. He prayed for judgment against thefirst defendant personally, and in default of payment that the land
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be sold. As regards this part of his prayer, he omitted to stateexpressly that the land should be sold subject to the otii. But therecan be no question that he intended to so pray, and that all theparties to the action understood that to be the case. Here I shouldpause to remark that the prayer of the plaint is not legally framedfora hypothecary action. The draughtsman of the plaint appears tohave followed slavishly the faulty form given in the schedule to theCivil Procedure Code. The plaintiff in a hypothecary action shouldpray that the land mortgaged be declared bound and executableupon the footing of the bond for the amount decreed to be paid,and that in default of payment that the land be-sold.
The defendants were in default of appearance, and the. Judgedirected that judgment be entered by default. Upon this ordersome officer of the Court appears to have entered up a decree, whichis at variance with the prayer of the plaint and the order of theJudge. The decree directed that the defendants'were jointly andseverally to pay the plaintiff’s claim, and that the title of the “ saiddefendant ” (meaning defendants) to the property mortgaged wasto be sold, and the deficiency, if any, recovered from the saiddefendants. The decree is dated January 7,1920. The plaintiff’sproctor submitted an application for the execution of this decreewith all its errors. He has not filled in the date of his application,but from the journal it appears to have been made on January 20,1920. In this application he prayed for execution against bothdefendants jointly and severally, and actually asked that the amountdecreed be realized by the sale of the “defendants’ propertyjointly and severally.” His application, therefore, was not forrealization of any property upon a mortgage decree, but upon amoney decree purely. I should have- expected him to rectify the'errors committed in the decree, but, instead, he not only adoptedthoseerrors, but misled the Court further by his careless application.Upon this application writ issued on January 23, 1920, in terms ofthe application. The copy decree attached to the writ appears tohave guided the Fiscal in seizing the land which had been mort-gaged. It was sold for Rs. 460 to one Katheievelu Somasunderamon May 5, 1920. The whole of the purchase money was recoveredand deposited on June 2, 1920. In the meantime the second'defendant had sued the first defendant in action No. 14,036 of theCourt of Requests of Jaffna upon the otti, and on June 7, throughthe Fiscal, seized a sum of Rs. 128 49 out of the Bum depositedin this action to the credit of the first defendant. This seizureobviously was of the surplus left over after satisfaction of the claimof the plaintiff. On June 14,1920, the claimant filed an affidavit,and moved that as a half share of this surplus belonged to them,that this share be not paid out. The sale was confirmed on August17, and an order for the payment of the whole of the plaintiff’sclaim amounting to Rs. 167*46 was entered on August 17, 1920.
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1921. Ths contest between the claimants and the first and second'7 defendants to the surplus In Court was then decided upon the factsSo^DBE which I have mentioned.
The learned Commissioner dismissed the application of the
claimants, with costs, payable to the first defendant. The onlyreason given is that they have no status in this case. I am unableto regard that as a good reason for this holding.
He holds, rightly in my opinion, that the land was sold only underthe writ in this action, and that therefore it is still liable to be soldunder the decree in favour of the second defendant, the otti holder.But, quite inconsistently, he holds that if the second defendant’sclaim is not satisfied by the sale of the land, he should have firstclaim upon the surplus in deposit.
I am unable to see any reason for this order. It is clearly wrong.The sale under the writ issued in this case was of that interest of theowner of the land which would be left over after the primary mort-gage was satisfied. The purchaser valued this interest at Bs. 460.The primary mortgagee has no claim upon this sum. To him thereis still the land available for execution just the same as if it had notbeen sold at all. His rights have not been affected in any way bythe sale, which has not prejudiced him at all. He had no right to‘ seize any portion of the surplus purchase price in Court. Hisclaim to levy execution upon the land is still intact. If the landfails to realize a sum sufficient to satisfy his claim, it will not bebecause the land has been sold under writ in the action upon thesecondary mortgage, but for some other reason.
The contest for the surplus proceeds therefore must be confinedto the plaintiff and the first defendant on the one tide and theclaimants on the other. I will regard the claimants as having madetheir claim tinder the provisions of section 350 of the Civil ProcedureCode. There is no other section under which they could have comein. It was admitted by both parties that Kasinather had the rightto create the mortgages in favour of the defendants. .The questionis, Did he have a right to donate more than a half of the land to thefirst defendant according to the Tesawalamai ? I am unable to findanything in point in the provisions of that, system of law as theyappear in volume I. of the Ordinances. It would appear that theproposition that a husband could not donate more than his half shareof the property acquired during the subsistence of his marriage wasnot challenged in the lower Court, nor the correctness of the lawon this point laid down in the case of Ammak v. SettupuUe.1 Thatcase was decided in 1872 by a Bench of this Court consisting of twoor perhaps three Judges.
I am bound by it. It lays down as if it were well-settled lawthat a husband can dispose of only half the property acquiredduring marriage. I can find no case .where the law as stated there
1 (2872) $ N. L. B. 271.
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has been disputed, although the decision has stood for nearly fiftyyean. I would, therefore, follow it, and hold that the surplus inCourt belongs one-half of it to the first defendant and the other tothe second claimant or to the first claimant as executor.
The second defendant must pay the costs of the first defendantand of the claimants both of the lower and of this Court.
SAMPASIVAM v. MANIKKAM et al