089-NLR-NLR-V-55-C.-NAGANATHAR-Appellant-and-S.-VELAUTHAM-et-al.-Respondents.pdf
GRATIAEN" J.—Naganathar v. Yelauthani
3X9
I953Present: Gratiaen J. and Weerasooriya J.NAGANATHAR, Appellant, and S. VELATJTHAM et al.,
Respondents
S. C. 214—D. C. Point Pedro, 3,712
Thesavaleumai—Wife’s separate immovable property—Husband’s position in regard to
suck property—Quia timet action Jurisdiction of Court to enter a declaratory
decree—Jaffna Matrimonial Rights and Inheritance Ordinance (Cap 48.), ss. 6,19 (b), 20 (1)—Amending Ordinance No. 58 of 1947.
A Court has jurisdiction to grant relief in the form of a declaratory decree inquia timet proceedings when such a decree would accomplish the ends of precau-tionary justice for the protection even of future or contingent rights. The Courtmust, however, he satisfied that the declaratory decree asked for in anyparticular action relates to a concrete and genuine dispute and would, if passed,serve some real purpose in the event of future litigation between the same parties.
By a deed executed in July 1944, a wife, to whom the Thesavalamai applied,purported, during the subsistence of her marriage but without her husband’sconsent, to oonvey her separate immovable property. Earlier, in November,1943, the husband had, in the exercise of his right to manage his wife’s property,informally leased her interests to certain parties.
Held, (i) that, under section 6 of the Jaffna Matrimonial Rights and inheri-tance Ordinance, the conveyance executed by the wife without her husband’sconsent was void 06 initio.
(ii) that although the husband had no proprietary interest in the separateproperty of his wife, he had other present and contingent interests therein. Hewas entitled, in the oircumstances, to institute action asking for a declaration thatthe conveyance which his wife had purported to execute was null and void.
,/^.PPEAL from a judgment of the District Court, Point Pedro.
Renganaihav, with V. Ratnasabapathy, for the plaintiff appellant.
H. W. Tambiah, with S. Sharvananda, for the 3rd and 4th defendantsrespondents._
Cur. adv. vult.
October 29, 1953. Geatiaen J.—
The plaintiff and his wife Thangammah are persons to whom theThesewalamai applies. Their marriage was solemnised according toHindu rites in June 1939, and in March 1939 the plaintiff’s wife receivedfrom her father by way of gift an interest in certain immovable propertiesincluding the lands to which this action relates. The effect of theirmarriage was that, although the properties remained her separate property,she was absolutely prohibited by the provisions of sec. 6 of the Jaffna
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GR ATI ABN J.—Naganathar v. Velautham
Matrimonial Rights and Inheritance Ordinance (Gap. 48) from alienatingthem inter vivos during the subsistence of the marriage without the consentof her husband. In addition, the future income of the property (at leastuntil the date on which the amending Ordinance No. 58 of 1947 came intooperation) became tediatetam common to both spouses by virtue ofsec. 19 (&) and sec. 20 (1) of the Ordinance.
By a deed 1)1 dated 1st July 1944 Thangammah purported, during thesubsistence of the marriage, but without the plaintiff’s consent, to conveycertain shares in the property to the 4th defendant. This alienation wasclearly void ab initio—Chellapa v. Kumaraswamy 1—because “ it was incontravention of her husband’s right and could not be supported,by theTamil law ”.
The plaintiff instituted this action against the 1st, 2nd, 3rd and 4thdefendants on the following basis : he claimed that, in the exercise of hisright to manage his wife’s property for their mutual benefit, he had on1st November 1943—i.e., before the execution of Dl—informally leasedher interest in the land in dispute to all four defendants at an agreed rental;that the defendants had since repudiated their obligations as lessees underhim, and that the 4th defendant (as purported owner)<-and her husbandthe 3rd defendant (presumably as the manager of his wife’s separate pro-perty) were wrongfully setting up an independent title under the void deedDl. He accordingly asked (a) for a declaration that the purported con-veyance under HI was null and void ; (b) for damages, and (c) to berestored to possession of the property.
The defendants joined issue with the plaintiff upon the allegations inthe plaint, and in addition raised a preliminary objection that the action,as originally constituted, was bad for misjoinder of parties and of causesof action. This latter objection having been upheld at the commencementof the trial, X he plaintiff elected to continue these proceedings against onlythe 3rd and 4th defendants for his declaratory decree in respect of thevoid alienation Dl. His right to sue all four defendants in separate pro-ceedings upon the other disputed causes of action were specially reservedto him.
The learned District Judge correctly decided that the purported aliena-tion by Thangammah to the 4th defendant without the plaintiff’s consentwas void ab initio, and rejected their alternative plea that the sharesconveyed had in truth been held in trust for the 4th defendant byThangammah. Nevertheless, a declaratory decree in favour of theplaintiff was refused on the ground that he had no proprietary interest inthe separate property of his wife who was not a party to the action.
The learned District Judge has, in my opinion, taken too narrow a viewof the jurisdiction of a Court to. grant relief in the fopm. of a declaratorydecree in quia timet proceedings. Cases may well occur in which such adecree would be justified to accomplish the ends of precautionary justicefor the protection even of future or contingent rights. Vide the authoritiescited in Hcwavitarane v. Chandrawathie 2. In a very recent decisionof the Court of Appeal in England, Denning L. J. stated, “ I know of no
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1 (1915) 18 N. L. R. 435.
(1951) 53 N. L. R. 169 at 174, 175.
GRATIAE 1ST J.—Xaganathar v. Yelautham
321
limit to the power of the Court to grant a declaration except such limit as itmay in its discretion impose upon itself ”—see Barnard v. National DockLabour Board ,. On the one hand, I agree entirely that a Court should notpermit itself to be converted into a forum for the discussion of purelyacademic problems, and ought therefore to be satisfied that the declaratorydecree asked for in any particular action relates to a concrete and genuinedispute and would, if passed, serve some real purpose in the event offuture litigation between the same parties.
Although the plaintiff cannot claim to be the present owner of hiswife’s separate property, he was undoubtedly vested at.the relevant datewith marital authority to restrain his wife from alienating her immovablesinter vivos. Moreover he had, at the time of the void alienation com-plained of, a present vested interest in the income of that property.“Whether he continued to retain such an interest since the Jaffna Matri-monial Rights and Inheritance (Amendment) Ordinance, No. 58 of 1947,came into force on 3rd July 1947 need not be here discussed. Sufficeit to say that D 1 had been executed in derogation not only of his maritalauthority but also of a right which he then enjoyed to share in the incomeof the property. Moreover, even upon a construction of the amendingOrdinance which is least favourable to him it cannot be said for certainthat he does not enjoy at least a contingent right to receive any part ofthe income of that property if his wife should predecease him. It isidle to speculate now whether that right will ever become enlarged intoa vested right, but the plaintiff is now entitled to complain of an invasionof his contingent rights by trespassers who seek to divert the incomeby asserting pretended ownership of the property under a void alienation.
Finally, it cannot be said that a declaratory decree would not be ofreal assistance to the plaintiff in the litigation which the learned Judgehas granted him permission to proceed with against all four defendants inseparate proceedings. His claims to the management of his wife’sseparate property, and to have leased it out to the defendants in theexercise of these powers have both been challenged. Obviously, there-fore, the onus will be on him to establish them. But before that litigationcommences, it would manifestly be to his advantage to get out of the way,so to speak, the false assertion of the 4th defendant to be the owner ofthe property.
Upon all these considerations, I think that the learned District Judgeshould not have refused the plaintiff relief in this action. I would setaside the judgment under appeal, and enter a decree declaring, as betweenthe plaintiff and the 3rd and 4th defendants, that the deed No. 11,236dated 1st July 1944 and attested by M. S. Kandiah, Notary Public, isnull and void in so f dr as it purports to he a conveyance of the interests of theplaintiff’s wife Vinnasithamby Thangammah. The 3rd and 4th defendantsmust pay to the plaintiff his costs in both Courts.
Weeeasooriya J.—I agree.
{1953) 2 W. L. R. 995 at 1009.
Appeal allowed.