ANNAPILLAI, Appellant, and ESWARALINGAM et al , Respondent

052-NLR-NLR-V-62-ANNAPILLAI-Appellant-and-ESWARALINGAM-et-al-Respondent.pdf


224
TT. N. G. EERNANDO, J.—Annapillai v. Eswaralingam
Present : K. D. de Silva, J., and H. N. G. Fernando, J.AjSTNAPILLAI, Appellant, and ES WARAXJ1SIGAM et al., Respondents
S. G. 471—D. C. Point Pedro, 5,279/L
Thesavalamai—Tediatetam acquired before 1947—Donation by husband of wife'a' share—Right of xvife to sue in her own right—Pre-emption Ordinance, No. 59 of
1947—Jaffna Matrimonial Rights and Inheritance (Amendment) Ordinance,
No. 58 of 1947.
A husband to whom the Thesavalamai applied purported to donate not nnl^his own share but hlso his wife’s half share of the Tediatetam before the date ofoperation of the Jaffna Matrimonial Rights and Inheritance (Amendment)Ordinance, No. 58 of 1947. Subsequently, in October 1955, the donee sold theproperty to' the 3rd defendant.
Held, (i) that the donation was invalid as to the wife’s share.
that the wife, by reason of the donation, became co-owner with the donee.
that the wife’s legal relationship to the donee was such as to confer onher the right of pre-emption of the share held by the donee.
that the wife was entitled, in her own right, to maintain an action forpre-emption during the subsistence of her marriage with her husband. In sucha case, the husband, if he chooses to remain inactive, may be joined as adefendant.
Held further, that the question whether the 3rd defendant had any knowledgeor notice of the donee’s right to a half-share was of no relovance.
^^-PPEAX from a judgment of the District Court, Point Pedro.
J. V. Chelvanayakam, Q.G., with S. Sharvanarida, for the plaintiff-appellant.
H. W. J a yewarden e, Q.C., with T. Arulanandan and L. C. Seneviratne,for the substituted defendants-respondents.
Cur. adv. vult.
July 18, 1960. H. N. G. Fesnamio, J.—
The plaintiff and the 4th defendant are wife and husband, and personsto whom the Tesawalamai applies. The action is one for pre-emption ofa share in a certain land which has been the subject of threetransactions :—(1) By the deed 3D2 of 19th October, 1943, the 4th‘ defendant.obtained a transfer in his name of a land described as being10£ 1ms. v. c. in extent from one Vyramuttu Nagalingam and his wife,Alankaran. The description in the schedule to the deed indicates thatthe 10£ 1ms. of land transferred was part of a larger divided extent of 16lms. and 9 kulies. (2) On 21st June, 1944,’ the 4th defendant joined with
H. N. G. FERNANDO, J.—Annapillai v. Eatvaralirtgam
225
Vyramuttu Nagalingam and Alankaran in executing the deed 3D1, bywhich those three persons donated to the 2nd defendant an extent ofabout 14£ kns., comprising the 10£ 1ms. dealt with by 3D2 and a furtherextent which had formed part of the larger divided extent of 16 1ms.and 9 kulies. (3) On 26th October, 1955, the 2nd defendant (joiningwith her husband the 1st defendant) by 3D3 sold to the 3rd defendanteither the whole or a part of the corpus which the 2nd defendant hadreceived on 3D1, but clearly including the 10J 1ms. originally transferredto the 4th defendant by 3D2 of 1943.
The case for the plaintiff has been that the 10£ 1ms. transferred to herhusband by 3D2 of 1943 was •property acquired by the husband duringthe subsistenc.e_Qf their marriage, and therefore tediatetam, and thataccordingly the plaintiff became entitled to a half-share or 5-J 1ms. of theland, and her husband the 4th defendant to the remaining 5& 1ms. Onthe assumption that the husband had no power to donate his wife’s shareand that the plaintiff remains entitled to her share; the plaintiff claimsthat the donation 3D1 was'only effective to convey to the 2nd defendantthe husband’s half-share, and that, since the entire extent donated by3D1 remained undivided, the plaintiff and the 2nd defendant had becomeco-owners of that extent. On this basis the plaintiff claims that she wasentitled to notice of the prospective sale of the 2nd defendant’s share,and for default of such notice that she is now entitled to pre-empt theshare to which the 2nd defendant had title by virtue of 3D1.
A number of issues were framed at the trial, one of which raised thequestion whether the deed 3D2 of 1943 in favour of the plaintiff’s husband,the 4th defendant, had been executed without consideration and in trust' for the 2nd defendant. An affirmative answer to this issue would havedisposed conclusively of the plaintiff’s claims, for if the 4th defendanthad been merely a trustee the land conveyed to him could not haveformed part of the tediatetam of himself and his wife. It was also contendedon behalf of the 3rd defendant (the ultimate purchaser on 3D3) that hewas a bona fide purchaser without notice of the plaintiff’s interests, al-though no issue on this question was framed. Ho evidence was led inregard to either of these two matters, nor was the trial judge invited todecide upon certain fundamental issues framed on behalf of the plaintiff,for the reason apparently that counsel on both sides were (understandably,I may say) eager to enter into the disputation of the interesting pointsof law which arise upon the transactions which I have mentioned. Inthe result, the judgment under appeal dealt only with what were re-garded as preliminary issues of law, which, together with the answersgiven by the trial judge, are set out below :—
“ lasue 9 Is the plaintiff co-owner of the land described in theSchedule to the plaint within the meaning of the Pre-emption Act,No. 59 of 1947 ? Answer : No.
Issue 10 If not, can the plaintiff maintain this action ? Answer :No.
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H. N. G- FERNANDO, J.—Annajrillai v. EswaraZingam
Issue 13 Can the plaintiff maintain • this action for pre-emptionduring the subsistence of her mafriage with her husband the 4thdefendant ? Answer :No.
r
Issue 14 Does deed No. 19378 of 21.6.1944 executed by the 4th.defendant convey title to the entirety of the extent dealt with by thesaid deed in favour of the 2nd defendant ? Answer : Yes.
Issue 15 If the above issues are answered in the affirmative, is theplaintiff entitled to maintain this action 'i Answer : No.”
The answer to issue No. 9 depends mainly on the acceptance by thetrial judge of the opinion expressed by De Sampayo J., in Seelachchy v.Visuvanathan Ghettyx that “ a husband may, under the Tesawalamai,make a donation of the entirety of the acquired property just as much as-admittedly he may sell or mortgage the same ”. That opinion, if cor-rect, would mean that the plaintiff’s interest in the land ceased entirelyupon the execution of 3D1, in which event she was never a co-owner withthe 2nd defendant and therefore without status to seek pre-emption ofthe latter’s share in the land.
De Sampayo J., did not follow the contrary decision in the muchearlier case of Parasathy Ammal v. Sethupulle2, although Garvin A. J.,regarded that decision as express authority for the contention that underthe Tamil customary law a husband could only donate half the acquiredproperty, and although Bertram C.J., accepted the same decision ascorrectly stating the law. The same statement of the law had beenaccepted by Schneider A.J., in the case of Sampasivam v. Mannikam*■which had been decided prior to Seelachchy v.' Visuvanathan Chetty1.Indeed it is interesting to find that De Sampayo J., did not subsequently >press his own former opinion, for he appears in his judgment in Tanka-rriuttu v. Kanapathipillai4 implicitly to accept the limitation of the hus-band’s power to donate only his own half-share. For completeness, Ishould mention also the judgment to the same effect in lya Mattayar v.Kanapathipillai5 where Dalton J., carefully considered the earlier de-cisions, and Gratiaen J.’s clear statement in Kumaraswamy v. Subrama-niam6 that “ an undivided half-share … had automatically
vested in (the wife) the non-acquiring spouse, by operation of law ”.
I am satisfied, therefore, that there is no longer any basis, in the de-cisions of this Court, for the view that a husband can under theTesawalamai validly dispose by donation of his wife’s share ofthe tediatetam, if the acquisition took place before the date ofoperation of the Jaffna Matrimonial Rights and Inheritance(Amendment) Ordinance, No. 58 of 1947.The question whether
that Ordinance has resulted in a change in the law regarding thehusband’s powers was given an answer by way of an obiter dictum in thejudgment of Gratiaen J., mentioned above, but it does not arise for con-sideration on the facts of the present case. The learned District Judge
— .1 {1922)23 N. L. R. 97.* (1923)25 N.L.R. 153.
(1872)3 N. I/. R. 271.5 (1928)29N.L.R. 301.
(1921)23 N. L. R. 257.6 (1954)& N. L.R. 44.
H. 1ST. G. FERNAMDO, J.—A.nnapUlai v. Eswaralingam
227
has held that the 3rd defendant was a bona fide purchaser for value ;this finding is unwarranted because no evidence was led at the trial andthe point was not conceded by counsel who appeared on behalf of theplaintiff. It was however submitted to us that even if the plaintiff issuccessful in this appeal, the case will have to be remitted to the DistrictCourt, where it will be open for the 3rd defendant to establish this pointby evidence. I shall therefore proceed to consider whether the plaintiff’sclaim can in law be met by a finding that the 3rd defendant had in factpurchased the property without notice of the plaintiff’s interests.
In SeelacJtchy v. Visuvanathan Ghetty1 the husband had donated-theacquired-property to his-saw- After the husband’s death, the propertywas mortgaged b}' the son and sold .in execution of a mortgage decreeto one of the mortgagees who was held to be a bona fide purchaser. Thewidow instituted her action against the purchaser to vindicate her halfof the property. In the course of his judgment, holding against thewidow. Bertram C.J., makes certain observations which, for purposesof the present appeal, it is useful to set out in seme detail. The obser-vations were to the following effect :—
A Tesawalamai husband is restricted from disposing of the commonproperty by donation to the extent of more than one half.
The wife has a vested right to a share in each property as it isacquired, and not merely a share in the totality of the acquisitions at thedissolution of the marriage. “ The idea of a community in all systemsseems to be to import an ipso facto co-proprietorship in all properties whichfall into the community.”
The husband is the absolute manager of the ooin»imt<yr If heignores the limitation of Iris powers of donation and purports to makea gift of the whole of one of the acquired properties, his act is probabljr notipso facto null so far as relates to the wife’s share. “ I am inclined tobelieve that the balance of authority is in favour of the proposition thatthe wife’s remedy arises onty on the dissolution of the marriage by way ofcompensation, and that at any rate, in the absence of express provisionin the Tesawalamai, the principles of the Roman-Dutch law might wellbe adopted by analogy. The question, however, has not been verycarefully examined, and it appears to me that it might well be left to befurther elucidated in some subsequent case by evidence of local customsuch as appears to have been frequently tendered in old Tesawalamaieases. It is not necessary to decide the case upon this ground, for, asI will proceed to show, even if the alienation by the husband within thelocal realm of the Tesawalamai would have been ipso facto void, and eventhough within those limits a rei vindicatio action from the beginning wouldhave lain for the recovery of the property, no such action lies in thepresent case on grounds quite independently of the question just dis-cussed.”
(<£)“ I hold that when the plaintiff’s husband purchased the property
now under consideration, he acquired it, in consequence of bis marriage
1 (1922) 23 N. L. Jt. 97, : •
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TT- N. G-. FERNANDO, J.—Annapillai v. JEswaralingam
contract, subject to a constructive trust in favour of his wife, and thathis wife was entitled- to sue him for a formal conveyance of her interest,or, as Voet puts it, subject to a necessitas communicandi.
But the right so acquired by the wife could not prejudice any bona fidepurchaser claiming from the donee of her husband, even though the giftto this donee was a breach of this constructive trust.”
It is on the last of these observations that counsel for the 3rd defendantnow relies for his contention that, if the 3rd defendant is shown to havepurchased the property by 3D3 of 1955 in good faith and for value, theplaintiff’s title to a share must be held to have passed absolutely to the3rd defendant; if this contention be correct then the plaintiff is not ashareholder and therefore has no status to maintain an action forpr e- emption.
The application by Bertram C. J., of principles derived from the .English"law of Trusts to the case of an alienation by a Tesawalarnai husband ofthe entirety of a land forming part of the tediatetam has not apparentlybeen considered in subsequent judgments of this Court ; our notice wasnot drawn during the argument of this appeal to any later opinion inagreement with the view taken by Bertram C. J. In these circumstancesI feel myself entitled to reconsider that view.
A “ constructive trust ” of the nature contemplated in the relevantpart of Bertram C.J.’s judgment is one where the person holding thelegal title or dominium is bound by trust law to hold the property for thebenefit of another. In such a case, unless of course the express or impliedterms of the trust prevent alienation, the trustee has an undoubted rightto convey the legal title to a third party, who will then become theholder of the legal title, although he will himself ordinarily be boundto hold the property for the benefit of the beneficiary. The principlethat a bona fide purchaser for value without notice of a trust will holdthe legal title absolutely and free of the trust is the recognised exceptionto the general rule. The point which I wish to emphasise for presentpurposes is that a conveyance by a trustee can undoubtedly vest in atransferee either the same legal title held by him, or sometimes evena title freed from the trust. In the case of tediatetam the husband has,like a trustee usually has, unqualified power to convey the legal titleby a sale. But (as indicated in the first part of this judgment) he hashot the power to donate anything more than a half-share of tediatetamproperly. A purported donation of the remaining half-share cannot, ininy opinion, be equated to a conveyance by a trustee for the reason thatthe husband does not hold the legal title to that half-share. In thecase of a sale, the conveyance is fully effective, but only because (in theforceful language of Macdonell C.J., in Sanaarapillai v. Devaraja Muda-HyQr1-), “ the husband is the sole and irremovable attorney of his wife withregard to alienations by sale or mortgage ”, and “ for purposes of suchalienation, the wife’s persona is merged in that of the husband.” If ahusband’s right to sell his wrrfe’s share flows from his possession of a
1 {1936) 38 N, L. JR. 1.
H. N. G. FERNANDO, J–—A-nnapillai v. Eswaralingam
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status equivalent to that of an attorney in the modem law, then clearlyhe cannot be regarded as the holder of the legal title to the wife’s share.The purpose of a power of attorney to sell is to confer a power of saleupon a person who has not the legal title, so that the status of an attorneyis quite inconsistent with the status of an owner. In JLwmaraswamyv. Subramaniamx Gratiaen J., pointed out that it was quite wrong tosuggest that the husband’s power of alienation proceeds from the enjoy-ment of any dominium over the wife’s share. Both Bertram C.J., (inhis observations set out at (6) above) and Macdonell C.J., appear to ack-nowledge that by operation of law a Tesawalamai wife acquires a title totediatetam property. Section 20 of Chapter ,48 expressly provided(prior to 1947) that the tediatetam shall be property common to the twospouses, both of whom shall be equally entitled thereto. This conceptof community of property, where the husband as the manager and headof the community has the power to sell his wife’s interests, cannot in myopinion fairly be equated to that of a trust, where the title is vestedsolely in a trustee subject to obligations existing in favour of otherpersons.
It seems to me, therefore, that where tediatetam property is donatedby a husband, the donee acquires legal title only to the husband’s half-share and the wife continues to remain vested with her half-share, theeffect of the conveyance being to constitute as between the donee and thewife the relationship of co-owners, and not the relationship of trusteeand beneficiary. Indeed this proposition was implicit in Bertram C-J.’sown observation that a husband can validly donate only a half-share.Since the donee has title only to a half-share, it is in my view unreasonableto hold that, if the donee subsequently purports to sell the entirety ofthe property, he is a trustee of the other half-share. If the donee him-self is not a trustee of the wife’s share, no question can subsequently ariseas to whether a purchaser from him is or is not bound by the trust.
Bertram C.J.’s opinion (though not acted upon in Seelachchy v. Visu-•vanathan Chetty2) that “ the wife’s remedy arises only on the dissolutionof the marriage by way of compensation ” is also adverse to the plaintiff’sease. In this view the wife would not have the right to vindicate her half-share even from a donee to whom her husband has transferred the entiretyof an acquired property ; and if her only right is to seek compensationfrom her husband or his legal representative after the marriage is dis-solved by death or divorce, then clearly the wife could not be regarded asa co-owner with the donee for the purposes of the law of pre-emption.In his judgment in Tankamuttu v. Kanapathipillai3 Be Sampayo J.,regarded Seelachchy v. Visuvanathan Chetty2 as having decided that thisright to compensation is the only remedy available to the wife. Butas Balton J. pointed out in lya Mattayer v. KaTiapathipillai4, the opinionof Bertram C.J., now under consideration, was expressed only by him,and was not utilised even by him to decide Seelachchy v. Visuvanathan•Chetty2. Garvin J., obviously disagreed with that opinion while
(1954) 56 N. L. R. 44.* (1923) 25 N. L. R. 153.
(1922) 23 N. L. R. 97.* (1928) 29 N. L. R. 301.
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H. N. Gr. FERNANDO, J.—Annapillai v. Eswaralinganx
De Sampayo Jdid not refer bo it. With great respect, I am in agreement-with the reasons stated by Dalton J., for his conclusion against the viewthat an unauthorised donation of acquired property by the husband cangive rise only to a claim for compensation.
In Jya Mattayer v. Kanapathipillaix the husband on 7th August, 1921,had purported to sell all the tediatetam lands to his brother. The transferwas obviously designed to deprive the wife’s heirs of the right to inherither half-share, for it was executed only two days before the death of thewife. It therefore amounted to a conveyance without valuable consi-deration, and was fairly equated to a donation to the brother. The wife’sheir, her daughter, thereafter claimed the wife’s share or, in the alternative,a sum of Rs 750/- (being half the value of the land) as compensation.After examining the earlier decisions, Dalton J., held that the husband. had no right to donate more than one half of the property, and that thedaughter was entitled to a declaration of title (as against the donee) to theother one half. We see here that although the husband had purportedto alienate full title before his wife’s death, the wife’s heir was heldentitled to vindicate a half-share after her death. This could only beon the basis, firstly, that the wife was entitled to the half-share at thetime of her death, and secondly, that immediately prior to her death shehad the right to vindicate that share in an action against the donee :
. unless she had enjoyed both these rights, the right of vindication couldnot have been transmitted to her heir. It is clear to me that the judg-ment of Dalton J., expressly decided in favour of tire wife the questionwhich I am now considering. The only difference in the present case isthat here there has been a further purported alienation by the donee.But if, as I hold, the alienee eannot claim the benefit of the privilegewhich the Trust law affords to a bona fide purchaser without notice of atrust, that difference does not affect the wife’s right to vindicate hershare.
The following questions arise on issue. No. 9 : firstly, was the donationinvalid as to the wife’s share, secondly, did the wife by reason of thedonation become a co-owner with the donee, and thirdly, was her legalrelationship to the donee such as to confer on her the right of pre-emption“of the share held by the donee ? For the reasons stated above, thesequestions have all to be answered in favour of the plaintiff. I wouldfurther hold that the fact that the 3rd defendant may have had noknowledge or notice of the plaintiff’s right to a half-share is of norelevance.
The next problem for consideration upon the issues decided by thetrial judge is presented by Issue No. 13, and it is two-fold in nature.In so far as this issue raises the question whether the wife’s remedy isrestricted to a claim for compensation and does not include a right tovindicate her share from the donee or a subsequent alienee, I have alreadydecided the question in favour of the plaintiff. But Mr. Jayewardenehas argued another question which seems also to arise on the same issue,
1 (1928)-29 N. L. It. 301.
H- N. G. FERNAISHDO, J-—A.nnapiUa.i v. Eswaralingamx
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namely, the question whether the wife can sue in her own right, or whetheron the other hand her claim to pre-empt the outstanding share should notbe preferred by her husband on her behalf, or else by both husband andwife as joint plaintiffs. Here again Mr. Jayewardene has relied on therights of management conferred on the husband by the customary law,in virtue of which he has been described as the “ irremovable attorney ”.Mr. Jayewardene referred to two decisions noted in Muttukrishna’s Noteson the Tesawalamai. The decision noted at page 263 is not relevant,for what was decided was that a wife cannot maintain an action againstthe husband to recover her dowry property unless she first obtains adivorce. The decision noted at page 264 was in a case where the acquiredproperty apparently consisted of an otty mortgage and the wife sued thehusband and the other otty holders to recover her share of the otty money.The decision that she could not maintain such an ac tion is in accord withthe principle that the husband as manager has the sole right to investtediatetam moneys, and, therefore, the sole right to decide whether andwhen to sue for recovery. The reverse situation arose in Sangarapillai v.Deveraja Mudaliyar 1 -where it was held that the husband had the soleright to mortgage tediatetam property and that it was unnecessary tojoin the wife in an action upon the mortgage bond. Macdonell C.J.,while referring to the husband’s right of sale or mortgage, was carefulto guard himself against any expression of opinion with regard to donationby the husband_of the__wi£elg half-share. These cases only serve toestablish the proposition that the husband is the proper person to sueor be sued when he makes authorised investments of, or executes authorisedencumbrances over, acquired property.
Muttukrishna, at page 258 has a note of a case where the husbandsuccessfully sued his wife for a declaration that he was jointly entitledwith the wife to a property purchased by the wife solely in her name, thusshowing at least that the wife is competent to be sued in respect of acquiredproperty held in her name. It is difficult to reconstruct the facts from anote in Muttukrishna, but there is a case noted by him at page 16 wherea wife sued her husband and another in relation to property alleged,to constitute acquired property of the spouses. A had first married Bleaving a daughter, who was married to D and who had died leavingan infant child. A had contracted a second marriage to C. It wouldappear fiom the note that C sued her husband A and also A’s son-in-lawD in order to assert rights to property acquired by A prior to his secondmarriage. The suit by the wife seems to have been unsuccessful, in thatthe Court decided that D, as the guardian of his wife’s infant child, heldall the dowry property of B as well as half of the property acquired priorto the second marriage. The legal problems presented by the facts ofthis case were referred to Commissioners for report—an indicationthat the case was probably contested with care. But no question appearsto have been raised as to the competency of the wife to litigate with herhusband and a third party in her attempt to assert her rights in acquiredproperty.
* (1956) 33 N. L. R. 1.
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TT. N. G. FERNANDO, J.—A.nnapillai v. Estvaralingam
It being clear law that a husband cannot validly donate the wife’shalf-share of the tediatetam, it would be unreasonable to suppose that awife, although a co-owner with a person to whom the husband purportsto transfer the entirety of the property, is powerless to assert her righteither by way of vindication or pre-emption, if the husband chooses toremain inactive. In the absence of any authority to the contrary or anyexpress provision in the Tesawalamai debarring a wife from suing alone insuch a case, I consider it only reasonable to apply in this situation thewell-known practice that a party who should join as a plaintiff, but re-fuses to do so, may instead be joined as a defendant. In this way resortmay, I think, be had to the principle ubi jus ibi remedium. I wouldaccordingly hold that the plaintiff’s action was properly instituted bythe joinder of her husband as a defendant.
In the result the issues with which I have dealt hove to be answeredas follows :—
Issue No. 9 : “ Yes ”
Issue No. 10 : The question does not arise.
Issue No. 13 : “ Yes ”
Issue No. 14 : “ No ”
Issue No. 15 : The question does not arise.
The plaintiff’s appeal is allowed, and the case is remitted to the DistrictCourt for trial on the other issues. But I must repeat that the questionwhether the 3rd defendant was a bona fide purchaser for value is of norelevance and should not be agitated. ‘To avoid possible misunderstand-ing, I should point out once more that this judgment relates to propertyacquired before the Amending Ordinance No. 58 of 1947 came intooperation.
Although I have for convenience referred in this judgment to the 3rddefendant, he died after the decree appealed from was entered, and thedefendants 3A, 3D, and 3C were substituted in his place. These de-fendants must pay to the plaintiff the costs of the past proceedings in theDistrict Court and the costs of this appeal.
K. D. de Seva, J.—I agree.
Appeal allowed.