JAYEWARDENE v. JAYEWARDENE nee PEREIRA

023-SLLR-SLLR-1980-V-2-JAYEWARDENE-v.-JAYEWARDENE-nee-PEREIRA.pdf


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JAYEWARDENE v. JAYEWARDENE nee PEREIRACOURT OF APPEAL
ABDUL CADER, J. & VICTOR PERERA, J.
S.C. (C.A.) 370/69 (F) D.C. COLOMBO 1211/splFEBRUARY 13, 1980
Matrimonial Property – Married Women’s Property Ordinance No. 18 of 1923,Section 23 – Meaning of “in any question … as to the title or possession ofproperty" – Section 17 of the Married Women's Property Act of 1882 (U.K.) -Summary procedure under chapter XXIV of the Civil Procedure Code.
An application was made to the District Court by way of summary procedureunder section 23 of the Married Women’s Property Ordinance by the wife againsther husband in respect of a sum of money said to have been given to her by hermother as dowry a part of which she alleged was spent by her husband for hissole use and benefit. The husband denied having received this money andfurther took objection that his wife was not entitled to claim the said sum undersection 23 of that Ordinance for the reason that the section is confined only toany question as to “title or possession of property” and not to any dispute wherethe question has first to be decided whether in fact a dowry in that sum wasgiven.
Held:
The claim of the wife was only a chose in action, a debt which she has to provebefore she can succeed and therefore not an identifiable definite property interms of section 23(1) of the Ordinance. It is title or possession of property thatthe section is concerned with and therefore the property must be definiteidentifiable property before the court can be called upon to decide a question oftitle or possession and therefore the action should fail.
Cases referred to:
Tunstallv. Tunstall(1953) 2 AER 311 at 312.
Rimmer v. Rimmer (1952) w AER 863.
CrystalI v. Crystall (1963) 2 AER 332 at 334.
Camkin and Another v. Seager (1957) 1 AER 71.
Williams v. Williams (1962) 3 AER 441.
Hine v. Hine (1962) 3 AER 347.
APPEAL from the Order of the District Court of Colombo.
H. W. Jayewardene, Q.C. with A. B. Desmond Fernando for the appellant.
R. Guneratne for the respondent.
Cur adv vult.
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13th March, 1980ABDUL CADER, J.
This was an application under section 23 of the Married Women’sProperty Ordinance by the wife of the respondent stating that “themother of the petitioner gifted to the petitioner as dowry the sum ofRs. 10,000/-” and that “the respondent has spent out of the said suma sum of Rs. 9000/- for his sole use and benefit.” The respondentdenied having received this money and took objection that thepetitioner was not entitled to claim this sum under section 23 of thisOrdinance for the reason that that section is confined only to anyquestion as to “title or possession of property” and not to any disputewhere the question has first to be decided whether, in fact, a dowryof Rs. 10,000/- was given.
At the inquiry, 7 issues were framed of which issue No. 1 raisedthe question whether the sum of Rs. 10,000/- was paid to thepetitioner as dowry; issue No. 4 whether the respondent spent a sumof Rs. 9000/- for his sole use and benefit and issue No. 6 whether thepetitioner could recover this sum of money under section 23 of theMarried Women’s Property Act. The learned District Judge answeredthe issues to the effect that the mother of the petitioner gave thepetitioner the sum of Rs. 10,000/- which was entrusted to therespondent and that the respondent had used a sum of Rs. 9000/- forhis sole use and benefit and he held that this action could bemaintained under section 23.
Before us, Counsel for the respondent urged that the learnedDistrict Judge had misdirected himself as regards his findings onfacts on the question whether this sum was, in fact, handed over tothe respondent, but he contented himself with the preliminaryobjection raised by issue No. 6 as regards whether this action couldbe maintained under section 23. He relied on the case cited to thelearned District Judge. Tunstall v. Tunstall.(1> The learned DistrictJudge accepted the correctness of the finding of that Court that thereshould be a property in dispute traceable or identifiable before theCourt could make an order under section 17 of the English Act. Buthe distinguished that case for the reason that there is in section 17 ofthe English Act, a clause “with respect to the property in dispute”which is not present in our Section 23. It is, therefore, necessary toquote the two relevant sections. Section 17 of the English Act readsas follows:-
”… may make such order with respect to the property in dispute,and as to the costs of and consequent on the application as hethinks fit, or may direct such application to stand over from time
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to time, and inquiry touching the matters in question to be madein such manner as he shall think fit.” (quoted in Tunstall v.Tunstall)
Section 13 of the Married Women’s Property Ordinance reads asfollows:-
“In any question between husband and wife as to the titleor possession of property, either party, or any such bank,corporation, company, public body, or society, as aforesaid, inwhose books any stocks, funds, or shares of either party maybe standing, may apply by petition in a summary way asprovided for in Chapter XXIV of the Civil Procedure Code, to theDistrict Court of the district in which either party resides."
“The District Judge may make such order, direct or makesuch inquiry, and award such costs as he shall think fir.”
The two section are similar except that in the English Act, the Courtis empowered to make order with respect to “the property indispute.” It is this clause “with respect to the property in dispute” onwhich the learned District Judge has relied to make a distinction.Section 23(1) refers to “title or possession of the property.” Therefore,a District Judge in terms of subsection (2) can make an order only inrespect of the question before the District Judge as to “title orpossession of property.” Obviously, (1) refers to property that is indispute for the reason that it is because there is a dispute over thatproperty that the petitioner moves the Court for relief. Therefore, ineffect, in terms of section 23(1) and (2), the District Judge is requiredto make an order as regards the title or possession of the propertywhich is in dispute. Looked at from this point of view, we see nodistinction between the two sections. The words “as he thinks fit” arecommon to both Ordinances. With respect, we do not find it possibleto make a distinction between the two Acts for the reason that thewords “with respect to property in dispute" appears in the EnglishAct. Several authorities have been cited to us which, if cited to thelearned District Judge, would have, in our opinion, helped him todecide this matter differently.
In the case of Tunstall v. Tunstall1^ referred to above, Lord GoddardC.J. stated as follows:-
“If, when he was about to sell it, the wife had taken proceedingsclaiming a share in the proceeds of sale, a particular fund,those proceedings might have been appropriate.” (Theemphasis is mime) “But the husband, having had the money for
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two years, has been living on it. … apparently, he has beenusing this money…”
in this case before us, too, there is no definite identifiable fund which
could be attached, Lord Goddard, C.J,. went on to say:-
“In the case of chattel, or stock and shares (which are speciallymentioned) the judge could, no doubt, order that “that piece ofproperty is to be handed over by the husband” or “these sharesstanding at present in the husband’s name in part or in wholeare to be transferred to the wife", and, no doubt, a husbandrefusing to obey that order could be attached. But I can seenothing in this section which empowers the court to give what isequivalent to a judgment for a sum of money.”
He went on further to say:-
“The court desires to say that in Rimmer v. Rimmer<2) the courtwas expressly dealing with a fund which was in existence. Noquestion like this was raised there. There was a fund. The courtwas deciding how the parties were to share in the fund and thecourt divided it equally, and I suppose that on that account thejudge and master thought in this case it was also right to divideit equally. But, there being no fund here, there is nothing onwhich this order could operate, and, therefore, it must bedischarged.”
In the later case of Crystal! v. Crystal/(3) Willmer, L.J. stated as
follows:-
“The husband, no doubt, is under a liability to repay the loan;but that is not a matter which can be dealt with as a question ofproperty within the jurisdiction of a court acting under s. 17 ofthe Married Women’s Property Act. 1882 Nor does theMatrimonial Causes (Property and Maintenance) Act, 1958.make it any more possible to bring that matter within thepurview of these proceedings. For the application of that Act(I refer to s.7 is restricted to cases where there is a questionbetween husband and wife as to the title to, or possession of,property. That Act is therefore no more directed to the right torecover loans as between husband and wife than was theoriginal Act of 1882. It seems to me that that is the beginningand the end of this matter. If this was a loan, the property in themoney which the wife handed over to the husband passed tothe husband, subject to his contractual liability to repay. .It is inmy judgment quite impossible to say, as the registrar sought tosay, that it formed any part of the property in dispute.”
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Harman, L.J. agreed and stated as follows:-
“The dispute between husband and wife for the purposes ofthat section must be a dispute about some property whichbelongs either to the one or to the other, and about which theyare in dispute. There is no such property here. There is a chosein action, a debt, if the wife is right;” (The emphasis is mine)….She says she has a claim against him in debt, and that is not amatter which can be agitated under s.17."
This case clearly demonstrates that the claim the petitioner in thiscase has against the respondent is only a chose in action, a debtwhich she has to prove before she can succeed and, therefore, notan identifiable, definite property in terms of section 23 (1) of theOrdinance. It is a title or possession of property that the section isconcerned with and, therefore, the property must be definite,identifiable property before the Court can be called upon to decide aquestion of title or possession.
In the case of Camkin and Another v. Seagerw Wynn-Parry, J. statedas follows:-
"… I ruled that I was not prepared to make any order onquestions 7, 8 and 9 as they stood, because in each case theclaim, whether by the applicants or the respondent, was a meremoney claim and involved, not merely a decision who wasentitled to possession of property such as a fund shown to be inexistence, but, as a preliminary, a search in the nature of aninquiry whether property existed on which the decision couldoperate. If a fund be shown to exist, no doubt the court willpronounce on the rights of the parties, as in Rimmer v. RimmeriZ)but where there is no property or identifiable fund on which theorder under s.17 could operate, proceedings under that sectionare inappropriate (see Tunstall v. Tunstall{'] In my judgment onan application under s.17, the court has no jurisdiction toconduct an inquiry with a view to finding out whether or notproperty exists. Its jurisdiction is confined to deciding questionsrelating to property which, on the evidence before it, is shown toexist. Further, in my view, the court has no jurisdiction toentertain questions which, it resolved in favour of the partyraising them, will only result in showing that a debt is owed tothat party by the other party to the summons.”
Counsel for the petitioner cited several authorities. His contentionwas that it would be sufficient if the property was a definite entity atthe time the money was paid to the respondent. We are unable to
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accept this contention for the reason that section 23 of the Ordinancerefers to the property in dispute at the time the dispute is brought toCourt. Obviously, there could not have been a dispute at the time themoney was handed over to the respondent when the parties wereexpecting to live a happy, married life.
Counsel then made a distinction between disputes governed byintention of the parties and cited the case of Williams v. Williams(S).We are of the opinion that this question of intention has no relevanceto the dispute before us. It is important to note that in that case, too,there was a definite fund of 1,001 pounds in the bank which was thesubject-matter of the dispute. In the case of Mine v. Hine(B>, cited tous by Counsel for the petitioner, once again it may be noted thatthere was a definite matrimonial home which the parties had at 131,Westfield Avenue, Watford which was to be sold and the questionbefore Court was how the proceeds of the sale of that property wasto be divided.
Another case cited by Counsel for the petitioner was the case ofRimmer v. Rimmer{2 referred to earlier where there was a definitesum of 2,117 pounds in dispute.
In the case before us, the Court was called upon to decide firstwhether, in fact, there was a sum of Rs. 10,000/- due from therespondent to the petitioner and, secondly, according to thepetitioner, a sum of Rs. 9000/- had been spent. We are of the opinionthat section 23 of our Ordinance is not available to the petitioner.Counsel for the respondent – appellant drew our attention to section18 of the same Ordinance. While section 23 affords relief undersummary procedure, section 18 requires parties to seek relief byregular procedure. This distinction is important. The Court cannotgrant relief to the petitioner under summary procedure when theOrdinance requires her to take steps under regular procedure. Theappeal is allowed and the petition in the D.C. is, therefore, dismissed.
In all the circumstances of this case, we do not order costs.
Parties will bear their own costs in both courts.
VICTOR PERERA, J. – I agree.
Appeal allowed.