056-NLR-NLR-V-29-IYA-MATTAYER-KANAPATHIPILLAI-et-al.pdf
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Present: Dalton and Lvall Grant JJ.
IYA MATTAYER KANAPATHIPILLAI et al.
1928.
307—D. G. Jaffna, 19,172.
Th-esawalamai—Acquired property—Husband's right to transfer tedia-tetam property—Vindication by heirs of-their interests.
Under the Thesawalamair a married man has no right to giveaway more than half the property acquired by him during marriage.
Parasathy Ammah v. SetupHe 1 followed.
Seelachchy v. Visuvanathan Chetty 3 explained.
T
HE plaintiffs sued the 1st defendant, husband of onePonnamma, deceased, and the 2nd defendant (a transferee
from 1st defendant) for declaration of title to half share of certainlands, which formed part of the acquired property of Ponnammaand to which they were entitled as her heirs. In the alternativethe plaintiffs also claimed compensation from the 1st defendantfor the value of the lands. The learned District Judge held that thetransfer by the 1st defendant was without consideration andfraudulent. On appeal it was argued that there was a misjoinderof parties and causes of action, that the order made in the testa-mentary case in an application for judicial settlement of theestate of Ponnamma was res judicata, and that under the Thcm-tualamai the husband had a right to dispose of the whole of theacquired property or tediatetam and that the remedy of the wife'sheirs was limited to a claim for compensation.
James Joseph, for 1st and 2nd defendants, appellants.—There is amisjoinder of parties and causes of action. The action is for therecovery of property and no other claim can be joined. Section1 (1872) 3 N. L. J?. 27L2 (1922) 23 N. L. J5. 97.
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1288*85 of the Code bars this, see Kangasabapathy v. Kanagasabai.*
lya Matktyer The order in the testamentary case is res judicata. In the«•, application for judicial settlement by the plaintiffs the title of
*<p2!af these very properties was raised* The application was dismissed,and the plaintiffs cannot be permitted to raise the question oftitle again. Under the Thesawalamai the husband has an absoluteright to sell or donate the whole of the tediatetam. It has been soheld by a Divisional Bench of Three Judges in Seelaclichi v. Visuva-natkan Chetty (supra). This decision was later followed in Tanka-muttu v. Kanapathipillai.2 The heirs of the wife have only a claimfpr compensation* This rule has been well established by the Thesa-walamai and is not affected by section 22 of the Jaffna Matri-monial Rights Ordinance, No. 1 of 1911.
Croos Da Brera (with him Rajakarier) for plaintiffs, respond-ents.—The action was to have a deed set aside on the ground offraud, so the transferor was a necessary party (Baronchi Appu a.Siyadoris Apput3 Oopalsamy v> Ramasamy Pulle-4). Both the claimsare connected and are based on a joint fraud. In any event thedefendants failed to appeal from the order granting leave. Theycannot be heard now. The order in the testamentary case isnot res judicata. It may bar a subsequent application for judicialsettlement but cannot prevent a substantive action for declarationof title. The question of fraudulent alienation was not raisedthere nor had the Court jurisdiction to try it. The 2nd defendantwas -not a party to the application for judicial settlement. It isnot therefore open to him to plead res judicata. His title was acquiredprior to the order. A person is privy in estate for purposesof res judicata if his title is obtained subsequent to the decree.(Arumugam v. Thampu,5 13 Halsbury’s Laws oj England 343.)
Seelachchy v. Visuvanathan Chetty (supra) cannot be considered ajudgment of the Full Court. Bertram C.J/s judgment is basedon the ground that the defendant was a bona fide purchaser fromthe donee. De Sampayo J. was of opinion that the husband hadthe right to gift the entirety of the property. Garvin J. dissentedand held that the husband had a right to gift only half. Tanka-muttu v. Kanapathipillai (supra) mistakenly says that Seelachchy v.Visuvanathan Chetty is a judgment of the Full Court, and merelyfollows it. In Parasathy Ammah v. Setupulle (supra) the Full Courtlimited the husband's right of disposition to half. This case hasbeen followed in Sampasivam v. Manikkam,® The case of Seelachchyv. Visuvanathan Chetty (supra) has been correctly interpreted inPonnachchy v. Vallipuram.7 Section 22 of Ordinance No. 1 of 1911
(1923) 25 N. L. R. 173.4 (1911)14 N. L. R.238.
(1923) 25 N. L. R. 153.6 (1912)15 N. L. R.253.
(1914) 4 C. A. C. 65.«(1921)23 N. L. R.257.
7 (1923) 25 N. L. R. 151.
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lays down clearly that the husband and wife are equally entitled 19M*to acquired property. There is no reservation of the right of jya Mattaytrdisposition in the husband's favour. Any custom or rule incon- v'sistent with this provision must be taken to be repealed (section 2).*
The transfer is in fraud of the community and can be set aside(Weerasuriya v. W eerasooriya*) under the Roman-Dutch law.which applies where the Thesawalamai is silent. Ohanmugam v.
Kandiah 2 and Seelachchy v. Visuwanathan Chetty (supra).
Joseph, in reply.
January 31, 1928. Dalton J.—
This case raises a question for decision under the Thesawalamai.
One Ponnamma died issueless on August 9, 1921, the 2nd plaintiffbeing now her sole heir. The 1st plaintiff is the husband of the2nd plaintiff. The 1st defendant is the husband of the deceasedPonnamma, the 2nd defendant being a brother of the 1st defendant.
A declaration was sought to be obtained in the action that the2nd plaintiff was entitled to a half share of the lands named/ inthe schedule to the plaint as being, iediatetam, or property acquiredduring the marriage 'subsisting between the 1st defendant andPonnamma. The 1st defendant had sold the entirety of theselands to his brother, the 2nd defendant, by deed No. 346 (P 6)dated August 7, 1921, that is, two days before his wife’s death.
Plaintiffs pleaded that the property was acquired property andthat this transfer was in fraud of the heir of Ponnamma andwithout any valuable consideration. In the alternative theyclaimed that they recover the sum of Rs. 750, half the value ofthe lands in question, by way of compensation.'
Defendants denied that the lands formed part of the iediatetam,but there is a finding against them on this point which is notquestioned on this appeal. The conveyance of August 7 isadmitted, but is said to have been in consideration of the sum ofRs. 1,500 paid by the 2nd defendant to his brother. It was. furtherpleaded that the matter was res judicata, inasmuch as the plain-tiffs had applied to the District Court, Jaffna, in testamentarycase No. 4,641 for a judicial settlement of the account of the estateof the deceased Ponnamma, impeaching inter alia the deed No. 346and claiming that the 1st defendant should account to them forthe sum of Rs. 750, half the value of the lands. This applicationfor judicial settlement was dismissed with costs on June 5, 1924,a further question arising out of the administration being alsodealt with by order of November 27, 1924, when it was held thatthe effect of the order of June 5 was to disallow the objections to
the final passing of the account.
3 {1910) 13 N. L. B. 376.
*11922) 23 N. L. B. 221.
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1028* With regard to the deed No. 846 of August 7, the learned trialJudge found as a fact that it was executed fraudulently and with-Pai/ton J. ou^. conBideration. There is ample evidence to justify the findinglyaMatoayer of want of consideration and it is not questioned on appeal. ItKanapathi- *s ur§e^» however, that the transfer is in fact a valid and not apillaifraudulent one in virtue of the exercise by the husband of his
marital powers. The issues, so far as this appeal is concerned,were as follows: —
Was the action bad in law by reason of misjoinder of parties
and causes of action ?
Is not the plaintiff’s claim res judicata?
Had the 1st defendant any right to convey the half share
belonging to Ponnamma?
Is 1st defendant liable to pay any compensation to 2nd
plaintiff, and if so, what amount?
It was admitted in the course of the argument before this Courtthat the real question arising on the appeal was in the issue whichI have numbered (3) above. Before dealing with that question,however, it is necessary to deal shortly with the first and secondpoints as they have also been argued.
With regard to the question of misjoinder, this was dealt withoriginally on objection taken by the defendants before filing their' answer. The • objection was based upon the fact that with theprayer for a declaration of title and for the cancellation of thedeed No. 346 is joined a claim against the 1st defendant in thealternative for half the value of the land, no leave for such joinderhaving been previously obtained. In dismissing the objection,so long ago as December 3, 1924, the trial Judge held that the2nd defendant was a necessary party to the action, but that leaveought to have been obtained for the joinder of .the alternative claim.He held, however, that the alternative claim for compensationcould be conveniently tried with the other questions to avoidmultiplicity of actions, and he thereupon gave leave at that pointof time, as he was entitled to do, and as he says he would havedone before had application been made, subject to a direction asto the payment of costs by the plaintiffs. There was no appealagainst that order, and I have heard nothing in the argumentaddressed to us, assuming we were correct in allowing this questionto be argued at this stage, which would justify this Court in saying,on the facts here, that the trial Judge was wrong.
The issue on the question of res judicata was answered by thetrial Judge in favour of the plaintiffs. The 2nd defendant wasno party to the judicial settlement or to the application of theplaintiffs therein, the parties to case No. 4,641 (see exhibit D 2)
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being the two present plaintiffs and another heir of Pdnnamma *338.since deceased, on the one side, and the 1st defendant (in hiscapacity as administrator) and two creditors of Ponnamma on-—
the other. There is an allegation in the application for judicial IyaM^taye9settlement that, in addition to the lands mentioned in the inventory, K<mapatMPonnamma left three lands which, it is now agreed, are those set P***™out in deed No. 346. There is no allegation in the application,however, that 1st defendant had conveyed these lands or haddealt with them in any way or impeaching the deed No. 346, butmerely that the inventory was not complete. When the applica-tion came up for hearing on June 5, 1924, the petitioners, thepresent plaintiffs, were not ready to proceed owing to illness.
The learned trial Judge found there had been previous postpone-ments and thereupon refused a further postponement and dismissedthe application. He, however, directed that the matter be calledon a subsequent date “ to see what other things have to be donebefore closing estate ” and on a further question as to the paymentof funeral and anthiraddy ceremony expenses being raised, heheld, on November 27, 1924, that the order of June 5 had theeffect of disallowing these objections by the petitioners. On anexamination of the proceedings in the application for a judicialsettlement, which have been put in evidence in this case, for thepurpose of deciding this issue it is sufficient to state that I amunable to find that any question was raised there as to any fraudu-lent alienation, or any alienation at all, by the 1st defendant ofthe three lands dealt with in deed No. 346, or to any liability onhis part to pay any compensation to anyone. Had these questionsbeen raised in that proceeding, it -is highly probable, as the learnedtrial Judge points out, the parties would have been told that theymust decide such issues in a regular action, and not in proceedingsfor a judicial settlement. I agree with his conclusion that theorders in the testamentary case are not res judicata of the plaintiffsclaim.
To come to the main point in the appeal, admitting the correct-ness of the finding that the three lands conveyed by deed No. 346are tediatetam, Mr. Joseph argues that the 1st defendant as husbandof Ponnamma had full power of disposing of them as he did. 3 heargument was to the effect that, even admitting the correctnessof the findings of fact in the Cpurt below, even if he purported toconvey the three lands to his brother when his wife was dying,as he himself could not succeed to his wife's half share on his deathand even if the conveyance be without consideration with theintention of depriving the heirs x of Ponnamma of the lands by.reason of their right of succession to Ponnamma on her death,the conveyance was a valid one, and the only right of the 2ndplaintiff, as heir to Ponnamma, was to compensation. In support
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1928.
DALTON J.
lya Mattayerv.
Kanapathi-pillai
of this argument he cited Seelachchy v* Visnvanatham Ghetty 1 andTankamuttu v. Kanapathipillai.2 The first case was tried beforea Bench of Three Judges (Bertram C.J., de Sampayo J., andGarvin A.J.). The plaintiff (the wife of Sangarapillai) a Tamil,subject to the Thesawalamai, brought – the action to vindicatehalf of a valuable property at 90, Bankshall street, Colombo, onthe ground that it was part of the tediatetam, and that it was notcompetent to her husband to donate more than a half share. Thehusband had donated the whole of the property to his son, whomortgaged the property to the defendant, who subsequentlybecame the purchaser at an execution sale. Bertram C.J. andde Sampayo J. held that the defendant's title was good, but Garvin.A.J. dissented. Bertram C.J. in his judgment discusses at lengththe question as to the extent of the powers of a husband to dealwith the common property, and after referring to various authori-ties states he is inclined to believe that the balance of authority,where a husband has disposed of more than a half share, is infavour of the proposition that the wife’s remedy arises only onthe dissolution of the marriage by way of compensation. Hegoes on to point out, however, that the question has not been veryfully examined and must await further elucidation in some futurecase. He comes to the conclusion that defendant’s title wasgood on other grounds applying the English principles of equity,namely, that he had no notice either of the plaintiff's equitableinterest or of the limitation of her husband’s power to alienatewhat was partnership property by way of gift, was not in any wayresponsible to the plaintiff, and so acquired the property free ofher equitable claims. De Sampayo J. on the other hand comesto the conclusion that a husband may under the Thesawalamaimake a donation of the entirety of the common property, justas much as he may sell or mortgage it, and he upholds thedefendant’s title upon that ground. He was not prepared to drawany distinction between alienations by way of mortgage or saleand donations, and expresses the opinion that the explanationfor such a distinction put forward by counsel, namely, that theproceeds of sales or mortgages are presumed to be expended inthe" interests of the community, whereas in the case of a donationthere was no such equivalent brought back into the assets of thecommunity, was merely plausible. Bertram C.J. was of opinion,however, that possibly this explanation may well be the true one.However that may be, the majority of the Court were not at onein the reasons upon which they decided in defendant’s favour.It seems necessary to stress this point as in the second case citedit appears to have been assumed that the point now under con-sideration has been settled by the majority of the Court in a case1 (1922) 23 N. L. R. 97.* 25 N. L. R. 153.
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by the Full Bench, which decision would be binding upon this 1928.Court. Tankamuttu v. Kanapathipillai (supra) was decided by d^tonJ.
de Sampayo A.C.J. and Schneider J. The parties there were
subject to the Thesawalamai, and during the subsistence of themarriage the husband sold the land in dispute which was tediatetam Kanapathi*to his aunt. After the dissolution of the marriage on account ofthe husband's desertion and adultery the wife brought this actionfor declaration of title to one-half of the land. The sale wasimpeached as being without consideration, and collusively executedin fraud of the wife. In the course of his judgment de SampayoA.C.J. states that the question arising as to the extent of the remedyavailable to the wife under the Thesawalamai has, he thinks,already been decided by the Full Bench. He then refers toSeelachchy v. Visuvanathan Ghetty (supra) where he adds thatthe majority of the Judges held that the wife could not claim againstan alienee from the husband a half share in any specific propertyand that her right was for compensation out of the estate of thehusband. That, if I read that case correctly, does not accuratelyset out the conclusion of the majority of the Judges in the case ofa donation by the husband as will appear from what I have statedabove. Even, however, if it did, it is clear from both these casesthat it is only a bona fide purchaser who is protected, and it isproved here that the 2nd defendant does not come within thatcategory.
What then is the answer to be given to this question as to the1st defendant’s rights to donate the half share of the tediatetambelonging to his wife and to the further question as to the extentof the wife’s remedy? I have referred to the undoubted, opinionof de Sampayo J. and to the obiter dicta of Bertram C.J., both ofwhich, coming from those learned Judges, must receive most weightyconsideration. But the latter admits the question is one whichat that time needed further elucidation; it is one which must bedecided if this present claim is to be settled. The Thesawalamaiitself offers very little assistance in ascertaining the limits of theauthority of the husband in respect of the common property. Ithas been suggested that the law of the Hindu joint family is thesource whence it derives any traces of community such as exist.
Bertram C.J., however, expresses the opinion that so far as theThesawalamai is concerned it is an independent development.
Having regard, however, to the auspices under which this collectionof laws and customs of Jaffna was composed and by whom it wascomposed, it is difficult to think that the provisions of Roman-Dutch law did not exercise some influence, and that the idea of apartial community of goods as in the case of tediatetam may nothave been strengthened by if not derived from the Common lawof the Dutch Government. It might be urged, however, as against
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1928.Dalton J.
Iya Maltayerv.
Kanapaihi-' piUai
this that the term “ from ancient times ” used at the commencerment of the compilation is hardly consistent with this theory,having regard to the length of time the Dutch had been in Ceylonprior to 1707. There is, however, always a continuous growthand development in the law as time progresses (c/. section 1,paragraph 2, re changes effected in customs and usages in Portuguesetimes). Whatever that source may be, Bertram C.J. at any ratedefinitely expresses the opinion that in questions arising out ofthis community, in the absence of any express provision in theThesawalamai, the principles of the Roman-Dutch law mightwell be adopted by analogy. I have not been able to find anyprovision in the Thesawalamai which I am able to say governsthis case. The fifth paragraph of section IV. has been referredto by counsel as supporting his contention, but I have great difficultyin reading into that paragraph all that he says is there. It appearsto provide for a case where both husband and wife die issuelessafter the husband has given away part' of the acquired propertywithout the knowledge of his wife. In such a case the relationsof the wife are entitled to receive a part of the acquired propertyequal to that which has been given away. I am unable to derivefrom that paragraph alone any underlying principle, nor to readinto it the wide powers of the husband and the limited remedy ofthe wife for which Mr. Joseph now contends. The cases collectedby Muthukristna in his edition of the Thesawalamai referred toby Bertram C.J. in part at any rate deal with alienations by thehusband with the consent of the wife. I have examined all thecases referred to by the learned Chief Justice. The reports arevery brief, but if the references are correctly set out in the printedjudgments I must admit I should have great difficulty in comingto the conclusion that any one of them clearly laid it down thatan unauthorized alienation of acquired property by the husbandwas a matter to be dealt with by way of compensation.
If then the Thesawalamai is silent on this point, or if one isunable to gather .from its provisions any satisfactory guidingprinciple, it must be remembered that that law has been amendedby Ordinance No. 1 of 1911 in respect of the matrimonial rights ofthose governed by the Thesawalamai. By section 22 of thatOrdinance it is enacted that the tediatetam shall be property commonto both' spouses and both shall be equally entitled thereto. Itthen goes .on to provide, subject to the provisions of the Thesa-walamai relating to the liability for the payment of debts, that,on the death of either, one-half of the property shall remain theproperty of the survivor and the other half shall vest in the heirsof the deceased. This latter provision is not material here, but itshows how far the ideas of the Common law are prevalent in the
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Thesawalamai. I have not up to this point referred to the dissenting 1928.judgment of Garvin J. in Seelachchy v, Visuvanathan CheUy Dalton J.(supra), but this is a convenient point to do so, for his reference to —~and his reasoning based upon this Ordinance seems to me, if Imay be allowed to say so, to be both clear and convincing. Hepoints out that there appears to be no authority which explicitlydeclares the community subsisting between spouses subject to theThe8awalami to be, as regards the vesting of. title, identical withthat of the Roman-Dutch law, but that there are indications thatthat position was never doubted. Under these circumstancestherefore he held that the property in dispute at the time of theacquisition by Sangarapillai vested by operation of law equallyin his wife. This is the view which was also adopted in Ponnachchyv. Vallipuram.1 Further on the authority of Parasatty Ammahv. Setupulle,2 although the husband had the right by viroue of hismarital powers to manage and dispose of property belonging tothe community by way of sale, he had no power to donate any-thing beyond half of the property. The correctness of the law aslaid down in Parasatty Ammah v. Setupulle (supra), a rei vindicatioaction over fifty years ago was not questioned when it was followedby Schneider J. in Sampasivam v. Manikkam.3 Bertram C.J.also stated that in his opinion that decision which has stood forso long must be accepted as correctly stating the law, althoughhe was not prepared to come to a final conclusion as to the wife'sremedy in the event of the husband donating more than one-halfshare. On due consideration I would rather agree with theconclusion come to by Garvin J. that if the husband has not powerto dispose of more than one-half by way of gift, the wife is entitledto contend that she has not been legally divested of her title to ahalf-share by her husband’s deed of gift. If there was any doubtabout this prior to 1911, it seems to me that this was made clearby the Ordinance of that year to which I have referred. It wasargued at the bar that section 22 of the Ordinance merely declaredthe old law, but whether it be so or not, it seems to me that thereis no doubt about the law as it now stands. Under these circum-stances, in the case now before this Court I have come to the con-clusion that the trial Judge was correct in his conclusion that the1st defendant had no right to donate more than one-half of theproperty included in the deed No. 346, and that the plaintiffs wereentitled to the declarations they sought that the 2nd plaintiff isentitled to one-half of the lands described in the schedule to theplaint. It is not therefore necessary to answer the 4th issue. Theappeal is therefore dismissed with costs.
* 25 N. L. R. 151.* 3 N. L. R. 271.
3 23 N. L. R. 257.
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1928. Lyall Grant J.—
Iya Mattayer j agrce that the appellants’ contention that the husband hadKanapathi’ the right to dispose of the lands held in tediatetam must fail. ThepiUai weight of authority is against it.
I also concur with the learned District Judge’s finding that thedeed was executed fraudulently and without consideration.
In the circumstances I agree that the appeal should be dismissed.
Appeal dismissed.