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Sept. ut mo
Present: Hutchinson C.J. and Middleton J.UMA1TA1 v. THAMOTHARAMPILLAI.
98, D. C., Trincomaleey 217.
ftlamaye in community of property—Donation between husband and wifeafter Ordinance No. 15 of 1876—Donation by husband of all hisundivided half share to his wife—Wife takes aU husband's interest.
Where a husband married in community of property donated tohis wife, after the Matrimonial Rights Ordinance came into opera*tion, “ ‘ the exact half* of all the specified community propertiesbelonging to him (me), exclusive of the other half belonging to(my) his wife by law,’* it was—
Held, that the husband had conveyed to his wife all his interest *in the community property, although his interest, was inaccuratelydescribed os an undivided half.
“ Where community of goods exists all property is joint propertybetween husband and wife. As a partner can give all his interestin any of the partnership property to his co-partner, so a husbandcan, since the Ordinance of 1876, give to his wife married incommunity of property all his interest in any of the commonproperty. The deed should be construed, if its language willallow of it, so as to have Some effect; no effect can be given to itexcept by construing it as a gift of all the husband’s interest;that was its obvious intention.
PPEAL from a judgment of the District Judge of Trinco-malcc.
The appellant is a nephew and one of the heirs of one VelautherSupper, who died intestate and without issue on December 29, 1904.
' The respondent, who is the widow of the intestate, obtained lettersof administration to the estate of the deceased • she filed finalaccount on August. 19, 1909. The appellant filed objections to theaccounts and prayed for a judicial settlement. The learned DistrictJudge allowed some 9bjections arid disallowed others. This is an; appeal against the .disallowance of certain objections.
Satnpayo, K.C.y for appellant.—The husband had the right tomake a gift under section 13 of Ordinance No. 15 of 1876. He had .only made a gift of one-half the property of the community. Theother half, therefore, remains in. the community. The husband had,after the donation, still power to deal with the other half; a creditorcOuld have seized a half against the husband even after the donation.
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[Chief Justice.—Could not the husband have given all his interests. Sept. 14,loiOto his wife?] He did not give all his interests to his wife ; he may Umaitai v.have had the intention, but he did not do so. He expressly says inthe deed that he is not dealing with one half share of the properties.
[Middleton J.—By the terms of his deed the husband seems tohave repudiated his right in favour of his wife. By a mere declara-tion of a mistaken view of the law in a deed a man does not cease tobe the owner.
Van Langcnberg (with him Tambyali), for the respondents.—Thedeed would operate as an estoppel as against the husband’s heir,the appellant. Where parties are married in community half theproperty vests in the husband and half in the wife ; tlie husband has,all the same, a right of disposal over the whole. The husband, afterthe gift, may have had only a right to dispose of the other half;but he did not exercise the right. The intention of the husband isquite apparent from the terms of the deed. Counsel cited 1 Nathan394, 397, 404.
Sampayoy K.C., in reply.—There is no estoppel here ; the deedcould not be pleaded as an estoppel under section 115 of theEvidence Ordinance or under any other law. The communityproperty is common property of both spouses; only on the dissolutionof marriage would half the property vest in the surviving spouse.
Even if the other half belongs to the wife, it is still in the community ;it is as if she had purchased it subsequent to the gift. Counsel cited2 Walter Pereira''s Lam of Ceylon, 174.
Cur. adv. vult.
September 14, 1910. Hutchinson C.J.—
His Lordship, after discussing other points raised by appellant’scounsel, continued :—
The last and most important matter relates to some lands whichthe appellant alleges to belong to the intestate’s estate. It wasadmitted that the administratrix was married to the intestate in1863 in community of property. By deed 3,699, dated September28, 1895, written in Tamil, the intestate conveyed to his wife(subject to the conditions thereinafter set forth) ” the exact half”of ail the properties therein described “ belonging to me, the saidV. Suppar Udaiyar exclusive of the other half belonging to her bylaw, she being my lawful wife, and the properties having beenacquired by her and myself by our joint labour.” Then, afterdescribing the properties, the deed goes on : “ my wife (subject tothe conditions hereinbelow written) shall take over charge after mylife of the hereinbefore mentioned undivided right (or exact, orfull) half share of the properties to the value of Rs. 6,030 ; .and
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Se.pi. 14,1010 she, her heirs, executors, and administrators, shall enjoy the same
Hutchinson for ever as their own.” Then come the conditions :—
-7-u (1) Although it is my intention and the true intent and purpose
VThamo^^is instrument are to hereby give to my wife the undivided half
tharampiiiui share of the properties belonging to me, so that they may becomeher property after my death, I reserve to myself the independentright and power of selling or mortgaging all or any of the propertiesat my will, with the consent and signature of my wife, should thereoccur until my death from this date any want, pressure, or difficulty.
“ (2) I shall enjoy the whole rents and profits of these propertiestill my death, and after my death my wife and her heirs shall takeover and enjoy the profits thereof for ever as their own.”
The first condition has no effect, so far as I can see ; the effect- of the deed would be just the same without it. And the wholedeed is an immediate gift to the wife, with a reservation to thehusband of the right to take all the rents and profits during his life.
By another deed, No. 3,000 of December 17, 1891, the husbandconveyed to his wife, by way of gift, certain other lands to be takenand enjoyed by her after his death. And by another deed, 372 ofOctober 20, 1888, he conveyed to her by way of gift a'half share ofsome other land (that half being apparently all the interest in thatland to which he was, or he and his wife together were, entitled),reserving to himself the income and profits during his life.
Section 13 of Ordinance No. 15 of 1876 enacts that a husband orwife, whether married before or after the commencement of theOrdinance, and notwithstanding the existence of any communityof goods between them, may make any gift of any property to theother. The gifts made by the two last-mentioned deeds weretherefore valid. But the appellant contends that deed 3,699 onlydisposed of onc-half of the lands mentioned in it, and that the othc. half remained in the community ; that the husband expressly saysin the deed that he does not deal with the other half, because italready belonged to his wife ; that it is not the law that a husbandand wife married in community of property are each entitled to anundivided half of the common property ; that although the husbandmay have intended to make his wife the sole owner, he or thedraughtsman of the deed made a mistake, and that he did in factonly make her at most the owner of an undivided half of the lands.
The husband made a mistake in supposing that he was entitledto an undivided half and his wife to the other half. And as he wasnot entitled to an undivided half, either the deed conveyed nothingand had no effect at all, or else it conveyed all the husband’sinterest ; and the Ordinance empowered him to convey all hisinterest to his wife. I cannot read the Ordinance as only authorizinga gift of property which is not part of the joint property of thehusband and wife ; for where the community of goods exists all
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I have had the advantage of reading my Lord’s judgment, anddo not propose to go into the facts.
On the question of the amount incurred for funeral expenses,and the disallowance of the claim that certain paddy and jewelleryshould be included in the inventory of the deceased, I agree thereis no reason to interfere with the Judge’s decision.
On the third and most important question of the constructionof the deed No. 3,699 dated September 28, 1895, I am inclined tothink the argument for the appellant is underlaid by the fallacy inthe deed that, when property goes into community, each spouse isentitled to an undivided half during the existence of the marriage.As 1 understand the Roman-Dutch Law, communio bonorum meanta sort of partnership in common, which arose ipso jure on themarriage or its consummation.
It is only on the dissolution of a marriage that a division musttake place (Voet, book 23, tit. 11, section 68 ; Grotius, book 2,chapter XL, section 13 ; Sande, CCXXII., 77). During the partner-ship of marriage the property was held in common, indivisiblysubject to the husband’s paramount rights as guardian of his wifeand power of alienation and its liability for the debts of thecommunity. If this is so, I see no reason why an apparent attemptby a husband to deal with his whole interest in the commixtionshould not be given effect to if the law now allows it in his lifetime.
I agree, therefore, that the deed must be taken to mean that thedeceased conveyed his entire interest in the property dealt with tohis wife. This he was entitled to convey under section 13 ofOrdinance No. 15 of 1876, while the deed, I think, assuredlyshows his intention to convey it. I agree, therefore, to dismiss theappeal with costs.
fheir property is joint property. And as a partner can give all hisinterest A? any of the partnership property to his co-partner, so ahusband can, the Ordinance, give to his wife married incommunity all his intef“5t in <t/?Y of the common property. Thedeed should be construed, if ns language will allow of it, so as tohave some effect; no effect can be given i<? it except by construingit as a gift of all the husband’s* interest 1 jiiat was its obviousintention ; it says that after the husband’s death the wife is tohave these properties and the whole of th& profits .as her own (seecondition 2) j and when in the earlier part of the c?£ed he saysthat he conveys to her his half, that must be taken to m&an hisinterest, although his interest was not accurately described as £nundivided half.
In .my opinion, therefore, this appeal should be dismissed withCosts,
UMAITAI v. THAMOTHARAMPILLAI