060-NLR-NLR-V-37-AMBALAVANAR-v.-KURUNATHAN.pdf
286
Ambalavanar v. Kurunathan.
1935
Present: Poyser and Koch JJ.
AMBALAVANAR v. KURUNATHAN.
125—D. C. Jaffna, 4,808.
Thesawalamai—Mortgage of tediatetam property by husband—Mortgage suitafter death of wife—Heirs of wife not made parties—Decree not binding
Jaffna Matrimonial Rights and Inheritance Ordinance, No. 1 of 1911.
Where, after the Jaffna Matrimonial Rights and Inheritance Ordinance,No. 1 of 1911, a husband mortgaged tediatetam property and the mort-gagee, after the death of the wife, put the bond in suit, without makingthe minor heirs of the wife, who were in possession, parties to the action,—
Held, that the heirs were not bound by the mortgage decree,i 2 C. L. W. 122.
KOCH J.—Ambalavanar v. Kurunathan.
287
PPEAL from a judgment of the District Judge of Jaffna.
H. V. Perera (with him T. Nadarajah), for defendants, appellants.
L. A. Rajapakse (with him D. J. R. Gunawardene), for plaintiff,respondent.
September 10, 1935. Koch J.—
This appeal raises a somewhat interesting point under the law ofThesawalamai.
The facts, which are admitted, briefly are that one Nagamuttu wasmarried to a woman called Sinnapillai, and that during the subsistence ofthe marriage Nagamuttu acquired the property in question under deedNo. 149 of 1924. Sinnapillai died in April, 1926, but before her demiseNagamuttu mortgaged the entirety of this property in April, 1925. Themortgagee on May 18, 1927, put his bond in suit against the mortgagor,and having obtained his decree had the property sold. The purchaser isthe plaintiff in this action. The claim of the plaintiff, however, is confinedto 3 lachams and 13£ kulies, as he had sold away the balance interests toa third party. The action is one rei vindicatio and the first four defend-ants are the minor children of the deceased Sinnapillai. The fifthdefendant is their guardian ad litem. These minors have been in possessionof an undivided half share of this land ever since their mother’s death.They were not joined as parties in possession in the mortgage action. Itis admitted that the law of Thesawalamai applies.
Nine issues were framed, the majority involving questions of law. Itwas agreed that the issues of law be first decided and the issues of factlater, if necessary. The District Judge on the law held that the minordefendants who are the appellants were bound by the decree in themortgage action and gave judgment for the plaintiff who is the respondentto this appeal.
Whatever doubt or confusion there may have been in the law ofThesawalamai up to the year 1910, regarding the precise legal positionof the children of a deceased spouse in relation to a mortgage that hadbeen effected during marriage by the surviving spouse of the entirety ofproperty acquired by him during its subsistence, the law makes thatposition definite and certain after the coming into operation of OrdinanceNo. 1 of 1911. This Ordinance is an amendment to the matrimonialrights of Tamils governed by the Thesawalamai with regard to propertyand the law of inheritance. The relevant section is No. 22. That sectionlays down that the tediatetam (acquired property) of each spouse shall beproperty common to the two spouses, and although it is acquired byeither spouse and retained in his or her own name, both shall be equallyentitled thereto. It further provides that on the death intestate ofeither spouse, one-half of this joint property shall remain the property ofthe survivor and the other half shall vest in the heirs of the deceased.Language cannot be clearer. All acts material to this action have takenplace after 1911, and it is common ground that under Thesawalamai likethe Roman-Dutch law the husband has the right during the lifetime of his
288
KOCH J.—Ambalavanar v. Kurunathan.
wife to mortgage property acquired during marriage even without theconsent of his spouse. The mortgage referred to qua mortgage wouldtherefore be valid and would bind the half share of the wife. Whatwould happen, however, if before the mortgage bond is sought to beenforced the wife died? Under the section I have referred to, her halfshare would devolve on her heirs, viz., the minor defendants, for, differentfrom an absolute alienation, the ownership of the property had not passedto the mortgagee by reason of the mortgage. In the hypothecary actionthat succeeded it was necessary therefore for the mortgagee to make allpersons who had vested interests parties to that action in order to obtaina binding decree against them. The minor defendants not only hadvested interests to a half share but also were in actual possession of thoseinterests.
In Sabapathy v. Mohamed Yoosoof et al1 my brother Akbar J. andI held that once it was clear that there were persons in possession of thehypothecated property claiming to be there against the rights of themortgagee, the mortgagee was bound to make them parties defendantto the action before he could obtain a binding decree against them,■and this whether these persons claimed under a derivative or independenttitle. The principles set out in this decision applies to mortgage actions,whether instituted before or after the passing of our new MortgageOrdinance, No. 21 of 1927.
The minor defendants (appellants) therefore not having been madeparties are not bound by the mortgage decree. It follows that theplaintiff’s (respondent’s) title is not superior to that of the minor defend-ants and his action against these defendants must be dismissed. Theone or two issues of fact left over are unnecessary to decide.
The Divisional Bench decision in Seelachchy v. Visuvanathan Chetty2was stressed by the respondent’s Counsel as supportive of his argumentthat the children of Sinnapillai did not on the death of the latter succeedto rights, as the legal title was in their father under the deed in his favour.The ruling in this case does not, in my opinion, assist the respondentfirstly, because the conclusion arrived at by Bertram C..J. was based onthe law of Thesawalamai as it prevailed before 1911, secondly, becausethe point considered was as to the superiority of the title of a bona fidepurchaser from the alienee of the husband as against that of the wife.The matter of the bona fides of the purchaser concluded that action.Thirdly, the majority of the Court, Bertram C.J. and de Sampayo J.,were not at one in the reasons upon which they decided in the defendant’sfavour. ' This circumstance was strongly availed of by Dalton J. in lyaMattayar v. Kanapathipillai * to assist him in not following this decision.Fourthly, Garvin J. disagreed and his views were adopted by Dalton J.in the case above referred to.
The appeal succeeds. The respondent will pay the appellants’ costsin this Court and the Court below.
Poyser J.—I agree.
Appeal allowed.
= 23 N. L. R. 97.
■3 29 N. L: R. 301 '
i 37 N. L. R. TO.