K. KUMARASWAMY et al , Appellant , and K. SUBRAMANIAM et al .Respondent

011-NLR-NLR-V-56-K.-KUMARASWAMY-et-al-Appellant-and-K.-SUBRAMANIAM-et-al-.Respondent.pdf

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Kwnaraawamg o. Subramaniam.
1964Present: Gratlaen J. andFemando A.J.K. KUMARASWAMY et al„ Appellants, and K. S U B RAMA NI AMel al., Respondents
C. ISO—D. C. {Inly.) Point Pedro, 4.S29P
Thesavalamai—Tediatetam—Devolution on death of rum-acquiring spouse—Jaffna
Matrimonial Rights and Inheritance Ordinance {Cap. 48), ss. 19, 20, 21
Amending Ordinance No. 58 of 1947, as. 5, Retroactive effect.(
The rights of a wife, to whom the Thesavalamai. appears, in respect of tedia-tetam property acquired by her husband before the Jaffna Matrimonial Rightsand Inheritance Amendment Ordinance of^U47 came into operation aregoverned by section 20 of the principal Ordinance of 1911 and are not affected-by sections 6 and 6 of the amending Ordinance.- If she predeceases her-husband subsequent to the date when – th«*InmnHing Ordinance became-operative, the devolution of her sha^e of tha£property is regulated solely by-section 21 of the principal Ordinance becauBe;fi»;n9w section 20 has no appli-cation to the case; accordingly, the entirety ofhar vested interest in the propertypasses to the children of the marriage es:herlheirg, to the exclusion of the-husband.*
T^LpPEAIj from a judgment of the District Court, Pbint Pedro.
V. Perera, Q.G., -with T. Arulananthan, for the 8th to 11th defendantsappellants.. .'
Sir Lolita Sajapakse, Q.C., with Et. W. Pcfnbiah nnd S. Sharvanandarfor the 1st defendant respondent.
GRATIAJSN J.—Kumaraawamy v. Subramaniam
45
July 16, 1964. 1 Gbatiakn J.—
This is att: appeal in • a partition action. The only dispute whichcalls for otir ; adjudication arises upon the legal consequences of certainadmitted facts.
Kanagaratnam (the 1st defendant) and his wife, Rasammah, wereTamils to whom the Tesawalamai applies. They were married in 1915,and their property rights as Tesawalamai spouses were until 4th July,1947, regulated by the Jaffna Matrimonial Rights and InheritanceOrdinance (Cap. 48)—hereinafter called “ the principal Ordinance ”.
In 1933 Kanagaratnam purchased in his own name an undivided Jshare in the property sought to be partitioned, and in 1943 he similarlypurchased an additional 1/18 share, so that the total extent purchasedby him under the relevant conveyances amounted to 7/18. Theseshares admittedly constituted the iediatetam “ of the husband ” withinthe meaning of section 19 of the principal Ordinance.
The appellants are the ohildren of the marriage, and as such were thepreferential heirs of either parent under seotion 21 of the principalOrdinance. Rasammah died in August, 1948, after the Jaffna MatrimonialRights and Inheritance (Amendment) Ordinance, No. 68 of 1947 (herein-after called “ the amending Ordinance ”), had passed into law.
The appellants claimed that half the tediatetam property purchasedby Kanagaratnam in 1933 and 1943 (that is to say, an undivided 7/36share), vested in Rasammah by operation of law immediately upon itsacquisition by Kanagaratnam (section 20 of the principal Ordinance) ;and that this undivided 7/36 share devolved on them upon her deathunder seotion 21, whose provisions have not been repealed by theumending Ordinance. Kanagaratnam maintained in the Court belowthat, on the contrary, the entire 7/18 now belonged to him by virtueof an allegedly sweeping alteration which had taken place in the relevantlaw. This latter contention was upheld by the learned District Judgewhose decision, I regret to say, is based on a misunderstanding of tworecent rulings of a Full Bench of this Court.
In my opinion, the problem under consideration admits of no doubt.Rasammah’s rights in respect of tediatetam property acquired by herhusband before 4th July, 1947, were governed by section 20 of theprincipal Ordinance, and the provisions of sections 5 and 6 of the amendingOrdinance did not operate to divest Rasammah of rights already vestedin her under the earlier law—Akilandanayaki v. SothinagaratnamJ,Kandavanarn v. Nagammah 2.
Earlier controversies as to the nature of the rights of the non-acquiringspouse in tediatetam acquired by the other spouse before 4th July, 1947,have long since been resolved by decisions of this Court. An undividedhalf share in the property sought to be partitioned had automatically'vested in Rasammah, as the non-acquiring spouse, by operation of law—Parasathy Ammal v. Setupulle 3. The dissenting judgment of Garvin J.
1 (1962) 53 N. L. R. 385 F;B.* (1952) 46 G. L. W. 104.
a (1872) 3 N. L. R. 271.
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GR ATIAEN J.—Kumaraewafny «. Stibramaniam
to the same effect in Seelachchy v. Visvanathan1 has been consistentlyfollowed. See Sampasivam v. Manilckar2, Iya Mattayer v. Kanapathi-pillai3 and Seenivasagam v. Vaitilingam *. ,
During the subsistence of her marriage, Rasammah’s. title in a halfshare of the tediatetam was of course subject to the marital power of herhusband to alienate it or mortgage it for consideration. This maritalpower was referable to the husband’s status as the manager and “sole orirremovable attorney of the wife ”—per Macdonell C.J. in Sangarapillaiv. Devarajah Mudaliyar5. It is quite wrong to suggest that the powerproceeds from the enjoyment of any dominium over the wife’s share.
The devolution of Rasammah’s share upon her death in 1948 remainsto be considered. This question is governed by the relevant provisions ofthe principal Ordinance of 1911 as amended by the amending Ordinanceof 1947.
Dr. Raj&pakse very properly informed ub that he could not supportthe wholly untenable proposition that the entirety of Rasammah’s 7/36share of the property devolved on Kanagaratnam as the survivingspouse. He argued, however, that the case was governed by section 0of the amending Ordinance which repealed section 20 of the principalOrdinance and substituted in its place a new section in the followingterms :
“ 20. On the death of either spouse one half of the tediatetamwhich belonged to the deceased spouse shall devolve on the survivingspouse and the other half shall devolve on the heirs of the deceasedspouse. ”-
He suggested that a 7 /72 share in the properties passed under this sectionto Kanagaratnam on Rasammah’s death and only the remaining 7/72share to the appellants jointly. For the^reasons which follow, I amunable to accept this argument.‘
In Kannamah v. Sanmugalingam8, Pulle J. has effectively disposed ofthe theory that a Single sentence (isolated from its context) of myjudgment in Kandavanam's case 7 lends suppott to the proposition whichDr. Rajapakse has invited us to adopt. No necessity arose in Kanda-vanam’8 case to examine the precise, meaning of section 6 of the amendingOrdinance ; it sufficed for the purposes ofvthot appeal to emphasise thatthe amending Ordinance did not retroactively divest people of any rightsacquired before 4th July, 1947, under the principal Ordinance.
In order to extract the true meaning of section 6 of the amendingOrdinance, we must first examine section 5 which repeals section 19 of the. principal Ordinance and substitutes a new' section 19 which reads asfollows:—■
" 19. No property other than, the following shall be deemed tobo tediatetam of a spouse :—- :
property acquired by that spouse during the subsistence of the•marriage for valuable consideration, suoh consideration not
. forming or representing any part, of the separate estate of’ that spouse;
» [1922) 23 N. L.B.97.* (1944) 46 N. L. B. 409 ; 28 C. L. W. S3.
• (1921) 23 If. L.B.257.• (1936) 58 N. L. B. 1 F.B.
» (1928) 29 N. L.B.391.* (1954) 66 N. L. B. 260.
' (1952) 46 O. L. W. 10* at 105.
QHATIAEN J,—JCumaratfwamy o. Subramaniam47
— •— ■ –
(6) profit®' arising duringthe subsistence of the marriage of that
spouee.**.
I shall hereafter refer to sections 5 and 6 of the amending Ordinancea»o“ the new section 19 ” and“ the new section 20 ” respectively.
The new section 19 give3 a definition of tediatetam “ which restoresfor the future the more traditional conception of tediatetam which hadbeen unmistakably, even though carelessly, altered by legislativeintervention in 1911 ”—Akilandanayake'a case1. Accordingly, propertywhich would previously have constituted tediatetam within the meaningof the principal Ordinance in accordance with the ruling in AvitchiChettiar's case 2, muBt, if acquired on or after 4th July, 1947, be regardedas “ separate property
The ropeal of the old section 20 and the substitution of the new section20 have the following effeot:—
if either spouse aoquires tediatetam property on or after 4th July,1947, no share in it vest® by operation of law in the non-aoquir-ing spouse during the subsistence of the marriage ;
(/») if the acquiring spouse predeceases the non-acquiring spousewithout having previously disposed of such property, the nowsection 20 applies ; accordingly, half the property devolveson tho survivor and the other half on the deceased’s heirs ;
(r) if tho non-acquiring spouse predeceases the acquiring spouse,the tediatetam property of tho acquiring spouse continuesto vest exclusively in the acquiring spouse ; the new section20 has no application because the tediatetam of the acquiringspouse never “ belonged ” to the non-acquiring spouse.
These three propositions pre-suppose that the tediatetam property hadbeen acquired after the amending Ordinance passed into law.
It thus becomes clear that the new sections 19 and 20 have no bearingon the present problem. A half share of tho tediatetam property acquiredby Kanagaratnam in 1933 and 1943 had automatically vested in Basam-mah (as the non-acquiring spouse) under the old section 20, and thesubsequent repeal of the old section 20 did not operate to divest her ofthat share. The devolution of -Rasammah’s share upon her death in1948 was regulated solely by section 21 of the principal Ordinancebecause the new section 20 has no application to the case. Accordingly,the entirety of Rasammah’s vested interest in the tediatetam property(i.e., a 7/36 share) passed to the appellants as her heirs. Thebalance 7/36 continued, of course, to be vested in the 1st defendantKanagaratnam.-
For these reasons, I would allow the appeal and amend the inter*locutory decree passed in the lower Court (a) by allotting a 7/36 shareto the appellants jointly and (6) by proportionately reducing the shareallotted to the 1st defendant—i.e., by allotting only a 7/36 share to him.
> (1952) 53 N, L, B. 385 at 397.* (1933) 35 N, L, it. 313.
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OrBATIAEN J.—Kumaraavnmy v. Subramaniam
The -appellants are also entitled to the costs of this appeal and of thecontest in the Court below. In all other respects the interlocutorydecree must be affirmed.
It !b unnecessary for the purposes of this appeal to give a definiteruling as to the devolution of tediatetam property acquired before. 4thJuly, 1947, if the acquiring spouse predeceases the non-acquiringspouse after 4th J-uly, 1947. In such a case, it iB already settled lawthat the new section 20 could not operate to divest the non-acquiringspouse of the half share which had previously vested in him (or her)under the old section 20. Dr. Ilajapakse suggested, however, that thodevolution of the half share belonging to the deceased acquiring spousewould be regulated by the new section 20—with the result that thenon-acquiring spouse would then become vested with an additional Jshare. Although I appreciate the undesirability of giving expression toany obiter dictum concerning the interpretation of the amending Ordi-nance, I desire to place on record that, as at present advised, I am quiteunable to accept this theory which (so Dr. Rajapakse informs us) is atpresent entertained in certain quarters.
The amending Ordinance appears to me to deal only with the incidenceand devolution of tediatetam property aoquired by one or other of thespouses on or after 4th July, 1947. In the hypothetical case referred to,the correct view, in my opinion, is that the new section 20 would notapply, and that the half share belonging to the acquiring spouse would,upon his death, devolve on his heirs under section 21 of the principalOrdinance—whereas the other half share would continue, as before, tovest in the non-acquiring spouse. I find no indication in the languageof the amending Ordinance of any intention to enlarge the rights orexpectations of a non-acquiring spouse in respect of tediatetam propertywhich came into existence before 4th July, 1947.
Fernando A.J.—I agree.
Appeal, allowed.