028-NLR-NLR-V-69-S.-VIJAYARATNAM-Appellant-and-S.-RAJADURAI-and-others-Respondents.pdf
TAMBIAH, J.—Vijayaratnam v. Rajadurai
145
1968 Present: SansonI, C.J., H. N. C-. Fernando, S.P.J., and Tambiah, J.S. VIJAYARATNAM, Appellant, and S. RAJADURAI and 2 others,
Respondents
S. C. 32311963—D. G. Jaffna, 1404/L
2'hesavalamai—Husband's ‘power over his wife's separate property—Scope—Sale ofimmovable property by wife without husband's consent—Sanction of Courtobtained—Contravention of terms of sanction—Effect—Jaffna MatrimonialRights and Inheritance Ordinance (Cap. 58), ss. 6, 8,19 (b), 20, 37.
A married woman governed by the Thesavalamai is not a femme sole ; she issubjoct to the marital power of her husband. The right- of the husband to givehis consent to the alienation or mortgage of his wife’s separate immovableproperty is an incidence of his marital power.
Tho plaintiff and the 3rd defendant, are husband and wife who are governedby the Thesavalamai and were married after 1011 and before 1947. The 3rddefendant, who was living in separation since 1951, obtained permission fromCourt in action No. 32C to sell, without tho husband's consent, certain immovableproperty which belonged to her. Although the Court, authorised her to sell theproperty at a price not less than Rs. 2,500 per lacham, she sold certain lots atRs. 500 per lacham to the 1st and 2nd defendants. In the present action theplaintiff claimed that the sale should therefore be set aside and declared nulland void.
Held, that, inasmuch as the sale by the wife was not in accordance with theterms of the sanction given by Court in action No. 326, the husband hadsufficient status to maintain this action.
Appeal from a judgment of the District Court, Jaffna.
C. Ranganathan, Q.G., with K. Sivananthan, for the plaintiff-appellant.
S. Sharvananda, with P. Thuraiappah and C. Chakradaran, for the 1stand 2nd defendants-respondents.
Cur. adv. vudl.
September 17, 1966. Tambiah, J.—
The plaintiff, who is the husband of the third defendant, brought thisaction against the first and the second defendants who are the purchasersof certain lands described in deed No. 4349 dated 26th June, 1960, attestedby S. Kanagaratnam, Notary Public. The parties are governed by theThesavalamai and were married after 1911 and before 1947.
The plaintiff averred in his plaint that the third defendant and himselfwere living in separation from 1951 onwards and the third defendant filedapplication No. 326/Misc. D. C. Jaffna, in which she prayed for permissionof court to sell her land without the written consent of her husband,
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TAMBIAH, J.— Vijayaralnam v. Rajadurai
for the purpose of settling her debts. It is further stated in the plaintthat the plaintiff did not contest the said application as the defendant wasreally in need of money and the Court authorised her to sell this propertyat a price not less than Rs. 2,500 per lacham but the third defendant soldcertain lots of lands described in paragraph 9 of the amended plaint at aprice of Rs. 500 per lacham to the second defendant in contravention ofthe order of Court. He therefore prayed to set aside the said deed andfor a declaration that the said sale was null and void.
At the trial, on a preliminary issue raised as to whether theplaintiff has a status to maintain the action, the learned District Judgedismissed the action and the plaintiff has appealed against this order.
In the course of his order the learned District Judge stated as follows :—
“ It appears to be that once the Court has permitted the wife todeal with the property without her husband’s consent and the husbandhas not canvassed the correctness of that order in an appropriate form,the Court has deprived the husband of any rights he has in respect ofthat property qua husband and if it is factually correct that the wifeto whom permission was given to sell subject to a restriction has notobserved that restriction, it is only a matter affecting the title whichpurchasers get on the deed—a matter in regard to which the husbandhas no concern and it is a matter which affects the vendor vicariously inregard to whether she is not liable to be reported for a contempt ofCourt—a matter in regard to which the husband who has displayed acontemptuous disregard for his wife’s welfare should have no concern.In other words the plaintiff has no cause of action in this case.”
The learned District Judge has erroneously taken the view that theplaintiff has no interest in his wife’s separate immovable property andhas penalised him for disregarding his wife’s welfare.
The Counsel for the respondent contended that the plaintiff has nointerest either in the separate property of the wife or in the profitsarising out of it and therefore has no interest to maintain this action.He urged that after the Matrimonial Rights and Inheritance (Jaffna)Ordinance had been amended by Ordinance 58 of 1947, even the profitsarising during the subsistence of the marriage from the separate estate ofthe wife is her separate property over which the husband has no interestwhatsoever. For this proposition he relied on section 19 (6) of theMatrimonial Rights and Inheritance (Jaffna) Ordinance (Cap. 58); therelevant part of it is as follows :—:
“No property other than the following shall be deemed to be theihediatheddam of a spouse :
(<*)••••
(6) Profits arising during the subsistence of the marriage from theseparate estate of that spouse.”
TAMBIAH, J.—Vtjayaratnam v. Rajudurai
147
The Counsel for the appellant contended that although this sectionregards the profits arising from the separate estates of a wife as herthediatheddam property, yet the title to half of it vests in her husband.It is not necessary to decide this question in view of the fact that thehusband still has certain other interests over the thediatheddam and theseparate property of his wife, in addition to the marital right over her.
It is an incidence of his marital right to manage the thediatheddamof his wife during the subsistence of the marriage. This view has beenexpressed in a number of cases. Referring to this interest Bertram C.J.in Seelachchy v. Visuvanathan Chetty 1 said—“ It is an essential featureof the community in almost all its forms that the husband should be themanager of the common property. There is no question that this is soin the Thesavalamai. He can freely sell (Katharuvaloe v. Menaihchipille(1892) 2 C. L. R. 132) and mortgage (Muttukrishna 124) the commonproperty without the consent of his wife.”
In Sangarapillai v. Devaraja Mudaliyar 2 a Divisional Court took theview that under the Thesavalamai, the husband has the right to mortgageproperty, which forms part of the thediatheddam property, even afterOrdinance 1 of 1911 as he had before, this Ordinance was enacted.Macdonell C.J. said; “ When a husband sells or mortgages part of thethediatheddam property he does so as acting for and with his wife, andthe question of her being a ‘party ’ to such transact ion docs not, it wouldseem, arise . . . For those purposes the husband is the person towhom alone the law looks. He is, if wo care to put it that way, thesole and irremovable attorney of his wife with regard to alienations ofthat property by sale or mortgage.”
The marital power of the husband to alienate or mortgage the.thediatheddam property of his wife is referable to the husband’s status assole and irremovable attorney of the wife (vide the dictum of Gratiaen J.in Kumaraswamy v. Subramaniam3). ' The right of the husband to givehis consent to the alienation or mortgage of his wife’s separate immovableproperty is an incidence of his marital power, (vide also Naganathan v.Vdautham 4; Chellappa v. Kuniarasamy 5 ; Muttukrishna, p. 268). Theamending Ordinance No. 58 of 1947 makes no alteration on this matter.
Apart from the status the husband has as “ irremovable attorney ”of his w’ife over her thediatheddam property and his marital power overher separate property, he is also an heir to half of it as a result of theoperation of the amending Ordinance of 1947 which introduced certainchanges. (Vide section 20 of the Matrimonial Rights and InheritanceOrdinance, Cap. 58.)
In the event of the wife dying leaving a minor child, the husbandis also empowered to continue to possess not only the thediatheddamproperty but even her separate property and enjoy the revenue thereof
1 {1922) 23 N. L. R. 97 at 108.3 {1954) 56 N. L. R. 44 at 46.
{1936) 38 N. L. R. 1.* (19.53) 55 N. L. R. 319 at 320.
* {1915) 18 N. L. R. 435 at 437.
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TAMB1AH, J.— Vijayaratnam c. Rajadurai
until their child marries or attains majority (vide section 37 of Cap. G8).Apart from these interests which the husband has over the thediatheddamand her separate property he has also the right to manage the thediathed-dam property. The rights of management have been recognised in thecases referred to earlier. It appears to be impliedly recognised by section6 of the Matrimonial Rights and Inheritance Ordinance (Cap. 58) whichmakes the wife’s separate property liable for the debts or engagementsof her husband, if incurred in respect of the cultivation, upkeep, repairs,management or improvement of her property. He has also the maritalright, to refuse to give his written consent for the sale, alienation ormortgage of the wife’s property. Although a married woman, under thegeneral law of the land, the Kandyan and Muslim law, is a femme sole, themarried woman governed by Thesavalamai is still under the maritalpower of her husband. For these reasons the husband has sufficientstatus to maintain this action.
The plaintiff averred that the property had been sold for a sum ofRs. 600 per lacham in contravention of the order of the court whichauthorised the third defendant to sell it at a price of Rs. 2,500 or more.If these facts are true, then the sale is not in accordance with the orderof the learned District Judge.
The ambit and scope of a court’s power to interpose its authority, whenthe husband unreasonably withholds his consent on an application madeunder the provisions of the Matrimonial Rights and Inheritance Ordin-ance, is set out clearly in Ponnwpillai v. Kumaravetpillai1. In thecourse of his opinion, referring to section 8 of the Jaffna MatrimonialRights and Inheritance Ordinance, Viscount Radcliffe states (at page 251)as follows :—
“ What the section envisages in its opening is a case in which acontemplated disposition of a particular piece of property is held upthrough the absence of a husband’s consent, and what is to followis an application for leave to deal w'ith that property without havingto obtain the consent. The Court’s order if made, ‘ dispenses with ’ hisconsent and, if it is made, his consent is no longer necessary for ‘ the validdisposition of or dealing with such property ’. All this seems to tiethe Court’s order very closely to the husband’s consent. If then theconsent in his case would have to be ad hoc and related to a specificand particular transaction it looks very much as if the Court’s consent,given in his place, would have to be of the same order …. Itwould seem curious jurisdiction to confer on the Court as arisingout of those circumstances that it should be able, on proof of them,to emancipate the wife permanently from her husband’s right or dutyof protection with regard to her immovables generally.”
The ratio decidendi of this case shows that the Court could only give• sanction to a proposed ad hoc sale of the property and cannot give anorder to sell generally. In these circumstances a question does arise
1 {1963) 65 N. L. R. 241 P. O.
SANSONI, C.J.—Load Government Service Commission a. Nagendran
149
as to whether the order given by the Court in Application No. 326/Misc.
C. Jaffna is an order which comes within the ambit of section 8 of theJaffna Matrimonial Rights and Inheritance Ordinance (Cap. 58). On thismatter however, I express no opinion.
I set aside the order of the learned District Judge dismissing theplaintiff’s action, and remit the case for trial in due course. Theappellant is entitled to costs of appeal but the other costs will abide theevent.
Sansoni, C.J.—I agree.
H. N. G. Fernando, S.P.J.—I agree.
Order set aside.