KANDASAMY AND OTHERS
SHARVANANDA, C.J., COUN-THOME. J. AND ATUKORALE, J.
S.C. APPEAL 1 & 2/85-C.A. 517/78.
JANUARY 29, 1986 AND FEBRUARY 6, 1986.
Thediathetam-Matrimonial Rights and inheritance (Jaffna) Ordinance No. 11 of 1911as amended by Ordinance No. 58 of 1947 (ss. 19 and 20)-Separate estate-Burdenof proof-Ownership and devolution of thediathetam-Succession.
Only property acquired by a spouse during the subsistence of the marriage for valuableconsideration, such consideration not forming or representing any part of the separateestate of that spouse, and profits arising during the subsistence of the marriage fromthe separate estate of that spouse should be categorised as thediathetam. Theseparate property of a spouse is that which he or she had brought to the marriage oracquired during the marriage by conversion, inheritance or donation made to him or her.Property purchased out of moneys of the separate estate of the spouse (mudusom ordowry) would continue to be part of such .separate estate.
The burden of proving that property acquired during wedlock is thediathetam is on theparty asserting it. Such party must prove that the consideration for the acquisition didnot form any part of the separate estate of the acquiring spouse.
Money paid on a life insurance policy on death is not thediathetam because themarriage had ceased to exist when the right to the money arose. The money has to bepaid in terms of the policy to the heirs of the insured or the nominee of the insured, asthe case may be.
Neither under Thesawalamai nor under the Matrimonial Rights and InheritanceOrdinance No. 11 of 1911, as amended by Ordinance No. 58 of 1947, is the survivingspouse an heir of the deceased spouse. However, the amending Ordinance No. 58 of1947 provides statutorily that half of the undisposed thediathetam belonging to thedeceased spouse will devolve on the surviving spouse.
Section 20 of the Jaffna Matrimonial Rights and Inheritance Ordinance of 1911, whichsets out the incidents of thediathetam. was declaratory of the Law of Thesawalamai.Since that section has been repealed by amending Ordinance No. 58 of 1947, one hasto look for the incidents of 'thediathetam' to the Thesawalamai.
It is basic to the concept of "thediathetam" that both spouses are equally entitled to itfrom the moment of the acquisition. An undivided half of the "thediathetam" vestsautomatically by operation of law on the non-acquiring spouse from the moment ofacquisition. Under no circumstances can a husband donate the wife's half share of the
"thediathetam". However the half share of thediathetam to which a wife is entitled issubject to the marital power of the husband to sell or mortgage it for a consideration,such power being referable to his status as manager or sole or irremovable attorney ofthe wife. On the death intestate of either spouse one half of the "thediathetam", whichbelonged to the surviving spouse and which had not been disposed of remains theproperty of the survivor and the other half belonging to the deceased spouse devolveson the heirs of the deceased spouse. In terms of section 20 of the amending OrdinanceNo. 58 of 1947 half of this half will in the event of the deceased spouse dying intestatedevolve on the surviving spouse so that the surviving spouse will then become entitledto 3/4th share of the thediathetam.
Observations of Gratian, J. in Kumaraswamy v. Subramaniam .56 N.L.R. 44 at 47dissented from.
Cases referred to:
Jivaratnam v. Murukesu-(1815l 1 N.L.R. 251.
Avitchy Chettiar v. Rasamma-(1933) 35 N.L.R, 313.
Nalliah v. Ponnammah-(1920) 22 N.L.R. 198.
Akilandanayaki v. Sothinagaratnam-( 1952) 53 N.L.R. 385, 397 (DB).
Ponnammah v. Kanagasuriyam-(1916) 19 N.L.R. 257.
Poothuthamby v. Valupillai-2 Times 95.
Shanmugalingam v. Amirthalingam-41 C.L.W. 59.
Parasathy Ammah v. Setupulle-(1872) 3 N.L.R.271.
Seelachchy v. Visuvanathan Chetty-(1922) 23 N.L.R. 97, 121, 122.
Sampasivam v. Manikkam-) 1921) 23 N.L.R. 257.
Ponnachchy v. Vallipuram-(1923) 25 N.L.R. 151.
lya Mattayer v. Kanapathipillai-11928) 29 N.L.R. 302.
Seenivasagam v. Vaithylingam-( 1944) 45 N.L.R. 409.
Kumaraswamy v. Subramaniam-) 1954) 56 N.L.R. 44. 47.
Sangarapillai v. Devaraja Mudaliyar-(1936) 38 N.L.R. 1 (F.B).
Attorney-General v. Hatford- 12 Q.B.D. 224.
Murugesu v. Kasinathec-f 1923) 25 N.L.R. 201.
Subramaniam v. Kadirgamam-(1969) 72 N.L.R. 284 PC.
Murugiah v. Jainudeen-(1954) 56 N.L.R. 176, 181 PC.
Arunasalam v. Ayadurai-(1967) 70 N.L.R. 165.
APPEAL from judgment of the Court of Appeal.
R. Manickavasagar with N. Mahehdran for petitioner-appellant in S.C. 1/85 andrespondent-respondent in S.C. 2/85.
A. Mahendrarajah. P.C. with S. Mahenthiran for respondent-appellant in S.C. 2/85 andrespondents-respondents in S.C. 1/85.
March 13, 1986.
SHARVANANDA, C. J.
One Ramanathan Thuraiappah died on 29,6.1973, intestate andissueless and leaving his widow, the petitioner-appellant in S.C.Appeal No. 1/85 (hereinafter referred to as petitioner). The 1 — 6threspondents-appellants in S.C. appeal 2/8b (hereinafter referred to asrespondents), are his sisters and brothers and his deceased brother'stwo children. All parties in this case are persons governed by theThesavalamai.
The question that arises for determination in this appeal is the modeof devolution of the estate of the deceased in terms of the MatrimonialRights & Inheritance Ordinance (Jaffna) No. 1 of 1911. as amendedby Ordinance No. 58 of 1957.
The petitioner applied f.or and was granted Letters ofAdministration. According to the petition filed the estate of thedeceased consisted of the following movable and immovableproperties
An allotment of land at Clifford Place, valued at Rs. 19,000.00.
A motor car valued at Rs. 10,000.00.
A savings deposit in the Bank in a sum of Rs. 10,572.87.
A life insurance policy of Rsr 10,000.00.
A current account in the bank in a sum of Rs. 227.24.
The petitioner married the deceased on 21.1.1961. She claimedthat the entire estate of her husband was thediathetam or acquiredproperty, and that she was entitled to 3/4th share of the same. Sheconceded the balance 1 /4th to the respondents, who are the intestateheirs of her deceased husband. The respondents on the other handclaimed that the entirety of the deceased's property was "separateproperty" of the deceased and hence the entirety of it devolved on therespondent-appellants as intestate heirs and that no portion of theproperty devolved on the petitioner:appellant. After inquiry the DistrictJudge held that all the assets disclosed in the petition were'thediathetam' and that the petitioner was entitled to 3/4th share ofthe same whilst the respondents were entitled to the balance 1 /4thshare. From this order the respondents appealed to the Court ofAppeal. The Court of Appeal held that the District Judge was in error inholding that the petitioner was entitled to 3/4th share of the estate ofthe deceased and that the respondents only to a 1 /4th share of it. TheCourt of Appeal concluded that 1/2 share of the estate of thedeceased devolved on the respondents. From the judgment of theCourt of Appeal both petitioner and the respondents have appealed tothis court and both their appeals were heard together.
At the hearing of the appeal both in this court and in the Court ofAppeal the respondents did not contest that the motor car, thesavings deposit and the money in the current account could beconsidered thediathetam property. but maintained that the CliffordPlace property and the money payable on the Insurance Policy formedthe deceased s separate property which according to them; devolvedon them without any co-sharing with the petitioner. Counsel for therespondents also contended that in any event the widow was entitledto only a 1 /2 share of the thediathetam property and not to 3/4 shareas held by the District Judge.
The first question that arises for consideration is whether theClifford Place property and the proceeds of insurance arethe diathetam property. Thediathetam has been defined differentlyfrom time to time.
Under the old Thesawalamai property acquired during the marriagewas denominated thediathetam or acquired'property. Thediathetamunder the Thesawalamai consisted of the profits arising from themudusam property of the husband and from the dowry of the wifeand all properties acquired by either of the spouses by their earningsduring marriage. It was only profits derived from,the property of thespouses or property acquired by the earnings of either spouse duringmarriage that could come within the concept of thediathetam. TheThesawalamai. restrict^ thediathetam to what was acquired duringwedlock. But property acquired subsequent to the marriage by one ofthe spouses and paid for with money which formed part of his or herseparate estate, was regarded as a property of the spouse whopurchased it and did not constitute thediathetam .property. Theseparate property of the spouse was that which he or she had broughtto the marriage or acquired during the marriage by inheritance ordonation made to him or her. If properties were purchased out ofmoneys inherited by the, husband, -they did not form thediathetamproperty. It was held in Jivaratnam v. Murukesu (1) that moneyinherited by a husband and invested by him in land did not form part of
thediathetam. Thus properly acquired by a spouse out of funds whichformed part-of his or her separate estate retained the character of themoney invested and was not regarded as thediathetam.
Thesawalamai also obligated the sons to bring into the commonestate (and there to let remain) all that they have gained or earnedduring the whole time of their bachelorship; so that all the earningsthat the sons had made prior to their marriage were not regarded astheir separate property but were regarded as part of the thediathetamof their parents. It is only earnings or profits made by them aftermarriage that would become their thediathetamproperty-Thesawalamai 1.1.7.
Section 19 of the Matrimonial Rights & Inheritance (Jaffna)Ordinance No. 11 of 1911, defined thediathetam of any husband orwife as follows:
"The following property may be known as thediathetam of any
husband or wife-
fa) Property acquired for valuable consideration by eitherhusband or wife during the subsistence of marriage;
(£>) Profits arising during the subsistence of marriage from theproperty of any husband or wife."
The above section 1 9 defined what property should constitutethediathetam of each spouse. This section included, in the category ofthediathetam property which was not designated thediathetam underthe law of Thesawalamai.
In Avitchy Chettiar v. Rasamma (2) a Divisional Bench of theSupreme Court ruled that in terms of the definition of thediathetam,property acquired by a wife during the subsistence of the marriage outof money which formed part of her dowry or separate estate isthediathetam property.
Thus while under the law as it obtained prior .to the enactment of theOrdinance No. 1 of 1911, property acquired during subsistence ofsuch m'arriage by one of the spouses and paid for with money whichformed part of his or her separate estate was regarded as property ofthe spouse who purchased it and did not become thediathetamproperty, in view of the construction placed on the statutory definitionset out in section 19 of Ordinance No. 1 of 1911 by the SupremeCourt in Avitchy Chettiar's case (supra), the law after theenactment was declared to be that in the case of parties marriedsubsequent to the coming into operation of Ordinance No. 1 of 1911,even though the land is purchased in the name of the wife with herdowry money, yet as the land had been acquired for valuableconsideration during the subsistence of the marriage, it would bestamped as thediathetam of the spouse, common to both parties.This view of the law was alien to the concept of thediathetam asconceived by the customary law of the Tamils and there was agitationfor the restoration of the old concept of the lavy. as expounded bySampayo. J. in Nalliah v. Ponnammah (3).
In this case Sampayo, ,J. stated that-
"It is well settled, I think that if the money by which acquisitionsare made during marriage can be earmarked or traced back to themudusom of the husband or the wife, the acquisition should not beconsidered part of the common property, but would partake of the
nature of the source from which they sprang I think,
therefore,that the money which the husband had saved out of hisearnings before his marriage belonged to him for his separateestate, whether it is strictly called mudusom or not. Thecircumstance that it was invested during marriage does not changeits character. Even if he invested it in the purchase of.propertyduring marriage and not on mere loans I think, in view of theprinciple of the decision on this point, the property would receive thecharacter of the money invested and would not be regarded asthediathetam." (pp. 198 and 204).
The amending Ordinance No. 58 of 1947 was enacted to restorethe old concept of thediathetam. The new definition of thediathetam-"restores for the future the more traditional conception ofthediathetam, which had unmistakably, even though carelessly,been altered by legislative intervention in 1911Akila'nadanayaki v.Sothinagaratnam (4)-per Gratiaen, J.
The new section brought the concept of thediathetam in line withSampayo's exposition.
Section 5 of the Matrimonial Rights & Inheritance AmendingOrdinance No. 58 of 1947, repealed section 19 of the principalordinance and substituted the following definition of thediathetam:
"No property other than the following shall be deemed to be_thediathetam of a spouse-
fa) Property acquired by that spouse during the subsistence ofthe marriage for valuable consideration, such considerationnot forming or representing any part of the separate estateof that spouse;
(b) Profits arising during the subsistence of the marriage fromthe separate estate of that spouse."
, See the Matrimonial Rights & Inheritance (Jaffna) OrdinanceChap. 58 of Vol. 3 of the Legislative Enactments.
The new section 19 involved an amendment of the concept of"separate estate" of husband or wife as defined in sections 6 and 7 ofthe Matrimonial Rights & Inheritance (Jaffna) Ordinance No. 1 of1911. They were.also amended by Ordinance No. 58 of 1947. Theamended sections read as follows
"All movable or immovable property to which any woman married• after the commencement of this Ordinance may be entitled at thetime-of her marriage, of which she may during the subsistence ofthe marriage acquire or become entitled to by way of gift orinheritance Or by conversion of any property to which she may havebeen so entitled'or which she may so acquire or become entitled to,shall, subject and1 without prejudice to the trusts' of any vyill or' settlement affecting the same, belong to the woman for herseparate estate, and shall not be liable for the debts orengagements of her,husband, unless incurred, for, or in respect ofthe cultivation, upkeep, repairs, management, or improvement of. such property or for or in regard, to .any charges, rates or taxesimposed by law in respect thereof"
. "All movable or immovable property to which any husbandmarried after the commencement of this ordinance may be entitledat the'time of his marriage, or. which he may during the subsistenceof the marriage acquire or become entitled to by way of gift orinheritance of by conversion of any property to which he may havebeen so entitled or which, he may so acquire or become entitled to.
shall, subject and without prejudice to the,trusts or any Will orsettlement affecting the same, belong to the husband for hisseparate estate"
In the present case the land at Clifford Place was purchased by thedeceased on Deed of Transfer No. 1290 of 11th June 1973 (P3), fora sum of Rs. 28,875. The deed says that the money was paid by thedeceased Thuraiappah and that the property was conveyed to him. In1the attestation clause the notary certifies that the consideration waspaid 'in cash in his presence by the purchaser to the vendor. Apart fromthe production of the Deed of Transfer (P3) no evidence has been ledby the petitioner or by the respondents as to how the considerationcame to be provided: whether the consideration came from theseparate estate of the deceased or from savings after his nharriage.The petitioner was the best person who could have testified to thesource of the consideration. Be that as it may, the question arises onwhom the burden of proof lies to establish that this land was or wasnot the thediathetam of the deceased. The petitioner contendedsuccessfully in the lower courts that the burden of proof rested on therespondents to prove that the consideration formed or representedpart of the separate estate of the deceased and that it was notthediathetam. The respondents, on the other hand contend that theburden lies on the petitioner to establish that the consideration for thepurchase of the land did not form or represent any part of the separateestate of the deceased. The Court of Appeal states in its judgmentthat:. ,
"the petitioner-respondent has proved by the production of deedNo, 1290 dated 10.3.73 that the Clifford Place property waspurchased for valuable consideration and that by the production ofthe marriage certificate of the deceased and death certificate of thedeceased, that this acquisition was during the subsistence of theirmarriage. The respondents have not adduced any evidence that theconsideration for this purchase came from the separate estate ofthe decease^. Further in the case of Ponnammah v. Kanagasuriyam(5) it has been held that all property purchased’during subsistenceof the marriage is presumed to be acquired property until thecontrary is proved. Therefore I hold that the Clifford Place propertywas thediathetam property."
I do not agree with this process of reasoning. The Court of Appealwas in error in applying the ruling re burden of proof in Ponnammah v.Kanagasuriyam (supra) to the facts of the present case. That was acase decided under the original Thesawalamai. An analysis ot therelevant sections of Thesawalamai tends to show that propertypurchased after the date of marriage could be presumed to beacquired property until the contrary is proved. This presumption stemsfrom the provision in the Thesawalamai (Art. 1. Section 1. Clause 7).that a son before marriage and during the lifetime of the parents couldnot hold for himself any property gained or earned during the time ofhis bachelorhood; it formed part of the common estate of his parents.So that at the time of marriage a husband would commence marriedlife only with mudusom as his separate property without being entitledto the moneys earned by him prior to the marriage. Hence apart fromwhat could be identified as such separate property, all that is acquiredduring the pendency of the marriage could legitimately be presumedto have been bought out of the profits of his separate property orearnings after marriage (In that era there was no question ol a womanearning prior to her marriage). The Jaffna Matrimonial Rights &Inheritance Ordinance has by its definition of thediathetam impliedlyabrogated that provision of Thesawalamai. viz. Part I. Section 1.Clause 7, which was the basis for such presumption. The son'searnings during his bachelorhood formed no more his parents'thediathetam but remained his separate property. Sections 6 & 7 ofthe Ordinance include in the concept of separate property-
"all movable and immovable property to which any husband orwoman married after the commencement of this ordinance may beentitled at the time of his or her marriage."
So that under the present law it is possible for a spouse to enter onhis/her married life while being entitled to movable or immovableproperty by way of mudusom/dowry and his/her earnings prior tomarriage. In Nalliah v. Ponnammah (supra) it was held that moneywhich a husband had saved out of his earnings before his marriagebelonged to him for his separate estate.
According to the definition of thediathetam. in the new section 19,only such property which has been established to have been acquiredby the deceased spouse during the subsistence of the marriage forvaluable consideration, such consideration not forming or representingany part of the separate estate of the spouse, can be deemed to bethediathetam. Any person who claims any property to bethediathetam has to establish that the property was acquired for thekind of consideration which would qualify it to be categorised asthediathetam property-such consideration not forming orrepresenting any part of the separate estate of that spouse-thenegative allegation forms an essential part of the petitioner's case.Hence the burden of proving that the land is thediathetam rested onthe petitioner who asserts it to be so. She had to prove as part of theprobanda that the consideration did not form or represent any part ofthe separate estate of the deceased spouse who acquired it in hisname.
Section. 101 of the Evidence Ordinance provides that-"whoever desires any court to give judgment as to any legal rightdependant on the existence of facts which he asserts, must provethat those facts exist."
In my view the Court of Appeal has misdirected itself in holding thatthe burden of establishing that the land at Clifford Place, was not thethediathetam of the deceased rested on the respondents. It was thepetitioner who asserted that the said land was thediathetam of thedeceased. And it was for her, in terms of section 101 of the EvidenceOrdinance, to establish all the elements of thediathetam to succeed inher claim. The petitioner has failed to show that the land at CliffordPlace was thediathetam property. Hence in my view, it has to be heldthat it was part of the separate estate of the deceased and as such thepetitioner will not be entitled to any share therein. The respondentsinherit the entire land in accordance with the rules of inheritance inpart III of the Ordinance.
. The second point to be' decided is whether the proceeds ofinsurance amounting to Rs. 10,000 was thediathetam property orseparate property of the deceased. The policy has not been produced,but it has been described as a Life Insurance Policy and hence themoney on the policy would have become payable either on maturity oron surrender or on the death of'the insured. In this case, as the moneywas paid into the estate,of the deceased, it would appear that themoney did not become payable during the lifetime of the deceased.The money on the Insurance Policy was not acquired by the deceasedduring the subsistence of the marriage with the petitioner as themarriage had ceased to exist with the death of the insured and henceit could not-be deemed to be thediathetam.
The Court of Appeal has held that the premium paid on theinsurance comprises valuable consideration and therefore the moneypayable under the policy became property acquired for valuable
consideration. I cannot agree. Life Insurance is a contract by which theinsurer agrees to pay a given amount upon the death of the personwhose life is insured or upon the maturity of the policy in considerationof the payment of certain sums called premia. In terms of this contracta sum of Rs. 10,000 became payable to the deceased's estate underthe insurance policy. Since it had not become payable during thelifetime of the deceased but became payable on the event of the deathof the insured, it was not acquired by the deceased during his lifetime.
I hold that the sum of Rs. 10,000 representing the proceeds of the lifeinsurance was not thediathetam of the deceased.
I do not agree with the view of the law expressed in Ponnammah v.Kanagasuriyam (supra) and Poothuthamby v. Valupillai (6) that thepremium paid on insurance policies should be consideredthediathetam. Since insurance is a matter of contract the destinationof the proceeds of the insurance will have to be decided in terms ofthe policy of insurance. The insurance monies were paid on his deathand form an asset of the estate of the deceased. Since the policy didnot mature in thp lifetime of the deceased the moneys due on thepolicy became payable to the heirs of the deceased on the death ofihe deceased. The judgment- in Ponnammah's case (supra) andValupillai's case (supra) were based on the concession of parties thatthe totality of premium paid should be regarded as thediathetam.These cases cannot be considered authority for the contention thatthe premium paid should be considered thediathetam. The insurancemoney is payable in terms of the policy to the administrator on behalfof the heirs in proportion1 to their entitlement. (See Shanmugalingam v..Amirthalingam (7)). I therefore hold that the money payable under thejpolicy would not constitute thediathetam and the petitioner will not beentitled to any share thereof on that basis. Then the question ariseswhether she can claim a pro rata share as an intestate heir of thedeceased. Neither under the Thesawalamai nor under the Jaffna-Matrimonial Rights and Inheritance Ordinance No. 1 of 1911 is thesurviving spouse an intestate heir of the deceased. The AmendingOrdinance No. 5-8 of 1947 though it provides that half of theundisposed of thediathetam belonging to the deceased spouse willdevolve on the surviving spouse, purposefully avoids describing thatspouse as an heir of the, deceased. It is significant that it states thatthe other half shall devolve on the heirs of the. deceased spouse. Thesurviving spouse is not granted the status of an heir of the deceased'by the law and hence the petitioner cannot claim to come into thecategory of heirs entitled to share in the proceeds,of ..the insurancepolicy.
For the determination of the claims of the petitioner on one' handand of the respondents On the other hand, as to their share in thethediathetam property of the deceased consisting of the motor car.savings deposit arid money iri the current account,'one has toconsider the legal incidents attaching to thediathetam'and thedevolution of thediathetam. According to the customary law ofThesawalamai, thediathetam is common to both spouses;, they areboth co-owners of the thediathetam. The concept that thediathetam iscommon estate of the spouses to which both are equally entitled'isbasic to the customary law of Thesawalamai. An undivided half of theproperty vests automatically by operation of law on the non-acquiringspouse and under no circumstances'can a husband donate more thanhalf the land acquired during the marriage-Parasathy Ammah v.Setupulle (8). In Seelachchy v. Visuvanathan Che tty (-9) Garvin. J..who was in a minority held that thediathetam property, at the time ofacquisition by the husband vested by operation of law. equally oh hiswife. He followed Parasathy Ammah v. Setupulle (supra), and heldthat —
"that the donor-husband would not have the right to gift theentirety of the acquired property and the wife was not legallydivested of her title to half share of the thediathetam by herhusband's death or gift."
This view of Garvin, J.. that a husband could nobdonate more thanhis 1 /2 share of the property acquired during the subsistence of hismarriage has been followed in Sampasivam v. Manikkam, (10).
In Ponnachchy v. Vallipuram (1 1) it was held that even though theproperty is acquired by a, wife during the marriage and the deed isexecuted in her favour it vests by law in both spouses and that thehusband as the non-acquiring spouse could donate 1/2 share of theproperty.
Dalton,- J. in lya Mattayer v.-Kanapathipillai (1 2) expressly adoptedwith approval the reasoning and conclusion of the dissenting judgmentof Garvin. J., Seelachchy's case (supra): Again in Seenivasagam v.Vaithyalingam (13). the Supreme Court held that under theThesawalamai the husband is not entitled to donate more than 1/2 thethediathetam property. The view that the non-acquiring spouseautomatically becomes entitled to 1/2 share of thediathetam wasaccepted in Kumaraswamy v. Subramaniam (14). This view is foundedon the basis that both spouses are equally entitled to the thediathetamfrom the moment at which it was acquired even though it wasacquired by one spouse only.
The other legal incident of thediathetam is that the 1/2 share ofthediathetam to which a wife was entitled was subject to the maritalpower of her husband to sell or mortgage it for consideration. Thismarital power is referable to his status as the Manager or "sole orirremovable" attorney of the wife-Per MacDonald, C. J. inSangarapillai v. Devaraja Mudliyar (1 5). It is not correct to state thatthis power of the husband proceeds from the enjoyment of dominiumof the wife's half share.
The Jaffna Matrimonial Rights & Inheritance Ordinance No. 1 of1911, "which represents the conclusions formed by the Committeespecially appointed to inquire jnto the body of customary law known asThesawalamai" (Vide Garvin, A. J., in Seelachchy v. VisuvanathanChetty (supra)) declares the law relating to thediathetam in section 20as follows:
Section 20 (1) "The thediathetam of each spouse shall be propertyCommon to the two spouses; that is to say, although it is acquiredby either spouse and retained in his or her name, both shall beequally entitled thereto."
Section 20 (2) "Subject to the provisions of the Thesawalamairelating to liability to be applied for payment or liquidation of debtscontracted by the spouses or either of them on the death intestateof either spouse one half of the joint property shall remain theproperty of the survivor and the other half shall vest in the heirs ofthe deceased; and on the dissolution of marriage or separation amensa et thoro, each shall take for his or her own separate use onehalf of the joint property aforesaid."I
Counsel for the petitioner submitted that the aforesaid section 20 isdeclaratory of the customary law of Thesawalamai and that thissection enacted in statutory language the fundamental concept ofThesawalamai* that thediathetam of each spouse shall be propertycommon to. the spouses and they both shall be equally entitledthereto. This section does not change or alter the incidents attachingto thediathetam as found in the Thesawalamai.
An Aci is said by Blackstone to be declaratory-
"wliere the old custom of the realm is almost fallen into disuse orbecome disputable, in which case Parliament has thought proper, inperpetuum rei testimonium and for avoiding all doubts anddifficulties to declare what the law is and ever hath been (1 cumm.86)."
It was held in the case of Attorney General v. Hatford (16), that ifan Act is m its nature a declaratory Act. the argument that it must notbe construed, so as to take away previous right is not applicable.Where an Act is in its nature declaratory, the presumption againstconstruing it retrospectively is inapplicable foMhe reason that the Actdoes not create a new right or obligation or alter existing rights orobligations. The Act states what the law has always been.
I agree with Counsel for the petitioner that on this test, section 20does not enact any new law: it renders in a statutory form what hasalways been conceived to be the customary law. It re-states the lawrelating to thediathetam. It does not effect any alteration oramendment respecting the nature ol thediathetam.
Garvin, J. in Seelachchy v. Visuvanathan Chetty (supra) describedthe aforesaid section 20 as-
"An explicit declaration of the law in the sense in which it was, solar as I ani able to judge, always understood,"
In Murugesu v. Kasinather (17) Garvin, A. J. with whomJayawardena. A. J. "entirely agreed" applied the provisions ol section20 to determine the rights of parties where property was acquired bythe husband prior to the death of the wife, in 1908 prior to theenactment of the Jaffna Matrimonial Rights & Inheritance Ordinanceof 1911. He held that by operation of law the title to one half of theproperty became vested in her heirs. This course was adopted assection 20 was declaratory of existing customary law and hence wasretrospective in operation.
The Amending Ordinance No. 48 of 1947 repealed the aforesaidsection 20 and substituted a new section in its place iri the followingterms-
Section 20; "On the death of either spouse one half ol thethediathetam belonging to the deceased spouse and has not beendisposed of by Last Will or otherwise shall devolve on the survivingspouse and the other half shall devolve on the heirs of thedeceased."
The Privy Council in Subramaniam v. Kadirgamam (18) observed ai291 :
"The new section 20. in contrast to the former section 20 of thePrincipal Ordinance does' not deal with any legal incidents whichwere thereafter to attach to thediathetam as newly defined, otherthan us devolution upon the death of a spouse intestate "
Since section 20 of the principal ordinance has been repealed andthe new substituted section does not deal with the incidents ofthediathetam. one has to look for the incidents which attach tothediathetam outside the amended Ordinance. It was contended byCounsel for the respondents that since the original section 20 hasbeen repealed one carinot look back into the customary law ofThesawalamai or to the repealed section 20 for the nature ofthediathetam but one has to decide the rights of parties on the basisthat the new section 20 is exhaustive of the law relating tothediathetam. His process of reasoning was based on the assumptionthat the original section 20 repealed the relevant provisions of theThesawalamai and that, since that section 20 has now been repealedby the amending. ordinance, section 6(1) of the InterpretationOrdinance stood in the way of revival of the customary law. Section6(1) of the Interpretation Ordinance (Cap. 2) provides:
Section 6(1): "Whenever any written law repealing either in wholeor part a former written law is itself repealed, such repeal shall not.
, m the absence of any express provision to that effect, revive or bedeemed .-to. have revived the repealed written law."
Counsel urged that in view of the rule of interpretation contained insection 6(1), one cannot fall back on the Thesawalamai and apply therule of equal entitlement of the spouses to the thediathetam. I cannotagree witlv this submission that the repeal of the original section 20has the effect of Obliterating the customary law of Thesawalamai.
I agree with the Counsel for the petitioner that the original section20' was declaratory of the law. It had not enacted a new law norrepealed the' relevant provisions of the Thesawalamai. It onlyelucidated or clarified the law relating to thediathetam.
Section 6(1) of the Interpretation Ordinance to which Counsel forthe respondent made reference would apply only if the said section 20had repealed the relevant- provisions of Thesawalamai and that
section, in turn, is repealed.
Since, m my view, the original section. 20 which has been repealedby the amending ordinance did not repeal the Thesawalamai butdeclared the customary law and did not change'or alter the law, therule of interpretation contained in the aforesaid'section 6(1) will notapply.'
"While the repeal of a statute which abrogates the former statutedoes not revive thpe former statute, the repeal of a statute that wasdeclaratory of the common law does not necessarily abolish, thecommon- law." Crawford-Statutory Construction at page 655-footnote.
In this perspective the customary law'survives the repeal of thedeclaratory provision.
Section 40 of the Jaffna Matrimonial Rights and InheritanceOrdinance No. 1 of 1911 provides-
"So. much of the provisions of the. collection of customary law
known as Thesawalamai….;.as are.-.inconsistent with the
provisions of the ordinance are hererby, repealed."
Thus provisions of the Thesawalamai.as,are not inconsistent withthe provisions of the Ordinance survive to supplement the latter.
Since the new section 20 has not .referred to or dealt, with theincidents of thediathetam) the’provision of Thesawalamai whichpostulated that thediathetam of teach spouse, shall be propertycommon to the two spouses, both being equally e.rntitied theretotherefore continues to be operative in spite of,the repeal of the oldsection 20, as it is not inconsistent with the provisions of the amendedMatrimonial Rights and Inheritance Ordinance of Jaffna.
Old section 20 is not inconsistent with any provisions ofThesawalamai. In fact, if adopts and incorporates the relevant rule ofThesawalamai.
Though original section 20 has been repealed by the amendingordinance, it has not been substituted theretofore by some newprovision dealing with the subject matter of the repealed section. Thenew section 20 provides for the devolution of thediathetam whichbelonged to the deceased spouse. It does not declare and regulatethe rights inter vivos of the spouses in regard to thediathetam. It states
Sri Lanka Law Reports
that “one half of the thediathetam belonging to the deceased spouseand has not been disposed of by Last Will or otherwise, shall devolveon the surviving spouse and the other half shall devolve on the heirs ofthe deceased spouse". It does not demarcate what is thethediathetam which belonged to the deceased spouse. Under the lawof Thesawalamai the surviving spouse was not an intestate heir of thedeceased spouse. The new section 20 represents a departure in thisrespect from the customary law of Thesawalamai. It expresslyprovides that one half of the thediathetam belonging to the deceasedspouse "shall devolve" on the surviving spouse.
Though the hew section 19 substitutes a new definition of the"thediathetam of a spouse" for the definition of "thediathetam of anyhusband or wife" in the repealed section 1-9. like the repealed sectionit does not spell the rights of the spouses in relation to thethediathetam. The repealed section 20 meted the entitlement, of thespouses to the thediathetam defined by old section 19. The newsection 20, without apportioning the shares of the spouses to thethediathetam as defined by section 19, deals with the devolution ofthe thediathetam which belonged to the deceased spouse. It is to benoted that while section 19 refers to "thediathetam of a spouse"section 20 speaks of "thediathetam belonging to a deceased spouse."'The distinction in.language is significant. It reflects a conceptualdifference. It supports the argument that the basic attribute ofthediathetam, viz: common ownership of the spouses inheres in thethediathetam as defined by new section 19. "Belonging" denotesentitlement. Under Thesawalamai, as stated earlier thediathetam of aspouse meant thediathetam acquired by the spouse to which byoperation of law both spouses became equally entitied — half share ofit belonging to the acquiring spouse and the other half belonging to thenon-acquiring spouse-from the moment of acquisition. Even thoughthe property was acquired by one spouse one half of it vestedautomatically on the other spouse. In my view, though the old section■20 has been repealed, the incidents of thediathetam referred totherein have not been abrogated but continue to attach to”thethediathetam as defined by new section 19. That part of thecustomary law of Thesawalamai dealing with the incidents ofthediathetam are not affected by the repeal of old section 20.
The presumption against radical alteration of the law also militatesagainst theproposition contended for by counsel for the respondents.The concept that thediathetam of a spouse is property common to
both spouses is far too firmly entrenched in the jurisprudence of thelaw of Thesawalamai to be jettisoned except by unequivocal expresslegislation and not’by a side wind. The following passage in Maxwell'sInterpretation of Statutes, 12th Ed. page 78-79, which was quotedwith approval by the Privy Council in Murugiah v. Jainudeen (T9),tends to support the submission that the new sections 1 9' and 20were not intended to make and do not make the fundamentalalteration in the customary law of Thesawalamai that would beinvolved in the acceptance of the proposition that under the newsections 19 and 20 the thediathetam vvould belong in its entirety tothe acquiring spouse.
"One of these presumptions is that the legislature does not intendto make any substantial alteration in the law beyond what it explicitly
declares either in express terms or by clear implicationIt is in the
last degree improbable that the legislature would overthrowfundamental principles, infringe rights or depart from the generalsystem of law, without expressing its intention, with irresistibleclearness."
I do not agree with the following obiter dictum of Gratiaen, J. inKumaraswamy v. Subramaniam (supra) that-
"The repeal of the old section and the substitution of the newsection 20 have the following effect
If either spouse acquires thediathetam on or after the 4th July1947, no share in its vests by pperation of law in thenon-acquiring spouse during the subsistence of the marriage.
If the acquiring spouse predeceases the non-acquiring spousewithout having previously disposed of such property, the newsection 20 applies; accordingly, half the property devolves onthe survivor and the other half on the deceased's heirs.
If the non-acquiring spouse predeceases the acquiring spouse,the thediathetam property of the acquiring spouse continues tovest exclusively in the acquiring spouse; the new section 20
r has no application because the thediathetam of the acquiringspouse never belonged to the non-acquiring spouse."
This enunciation was not necessary for the decision oi the case asGratiaen. J., himself states "the new sections 19 and 20 have nobearing on the present problem.” With all respect to that eminentJudge. I would state that the above propositions do not represent thelaw. In that case Gratiaen, J. had no occasion to examine the law onthe question in issue in the present case.
Thus on the above construction of the law a non-acquiring spousebecomes vested with title to half the acquisition from the moment ofthe acquisition and also inherits half of the other half which belongedto the deceased spouse if the latter dies intestate, without havingdisposed of his or her half share. On the basis of the above analysis ofthe law it has to be held that half of the items of the deceased'sthediathetam i.e.. motor car. savings deposit of Rs. 10,572.87 andhalf of Rs. 227.24 lying in the current account, did not fall into theestate of the deceased, as they belonged by operation of law to thepetitioner, the widow, and of the half that belonged to the deceased,half of it devolved on the surviving spouse. Accordingly the petitioneris entitled to half of the deceased husband s half share in addition toher own half-share of the above items of thediathetam. I note thatSivasubramaniam, J., in Arunaslam v. Ayadurat (20). has held thatafter the amendment of 1947, title to 3/4th share of thediathetamproperty was in the surviving spouse and title to the balance quarterwas in the intestate heirs of the deceased spouse. He appears to havecomputed the extent of shares in the thediathetam belonging to thespouses on the same basis as I have done.
I therefore, declare that the petitioner is entitled to three fourth ofthe items, viz. the motor car. savings deposit and money lying incurrent account, and that the 1st. 2nd and 3rd respondents who arethe sisters of the deceased and the 4th respondent who is the brotherof the deceased and the 5th and 6th respondents who are the childrenof the deceased brother Poothathamby Thuraippa. inherit the balancequarter share of the said items. I also declare that the respondents areentitled by way of inheritance of the separate estate of the deceasedto the entirety of the land No. 37. Clifford Place to which the deceasedbecame entitled on Deed No. 1290 dated 1 1.6.1973 and that thepetitioner is-not entitled to any share therein. The respondents are alsoentitled to the’sum of Rs. 10,000 representing the proceeds ofinsurance.. Though the 2nd respondent has not appealed from thejudgment of the District Court she will be entitled to the benefit ofthese declarations.
I set aside the judgment of the Court of Appeal and of the District,Court and allow the appeals of both petitioner-appellant in S.C. No.1/85 and of the respondent-appellants in S.C. No. 2/85 to the extentinvolved in the above declaration.
In the circumstances of this case parties will bear their own costs inall the courts.
COLIN-THOME, J.-l agree.
ATUKORALE, J.-l agree.
Appeals allowed as indicated in judgment.