028-NLR-NLR-V-54-KANDIAH-Appellant-and-SARASWATHY-et-al-Respondents.pdf
1Zandiah v. Saraswathy
m
Present: Dias S.P.J. and Gunasekara J.
KA3STDIAH, Appellant, and SARASWATHY el al., Respondents
288—D. C. Jaffna 4689M
Administration of estate—-Right of creditor to follow movable property sold by heir—Applicability of maxim mobilia non babent sequelam—Thesavalamai—Applicability to a given case—Must be specially pleaded—Civil Procedure Code,s. 154—Records of other actions not to be admitted in bulk.
Quaere, whether the principle that a creditor of a deceased person’s estatemay follow property alienated by an heir applies to movable property.
Per Dias S.P.J.—There is no presumption of law by which a Court can say,without proof, that the Thesavalamai applies to a particular Tamil who happensto reside in the Jaffna Peninsula. In the absence of such a presumption theburden of proof is on the party who contends that a special law has displaced thegeneral law in a given case to prove the applicability of such special law.
The requirement of section 154 of the Civil Procedure Code- should be strictlyobserved ; when relevant portions of the record of another action are admittedin evidence each of them must be separately marked and stamped.
^V.PPEAi. from a judgment of the District Court, Jaffna.
W. Tambiah, with V. Ratnasabapathy, for the plaintiff appellant.
S. Thangarajah, for the 1st defendant respondent.
Nagendra, for the 3rd and 4th defendants respondents.
Cur. adv. vult.
138
DIAS S.P.J.—Kandiah v. Saraswathy
September 14, 1951. Dias S. P. J.—
The facts which give rise to the present dispute are as follows : The1st defendant respondent was the wife of a man named Ponnambalamwho met his death on July 28, 1946. The plaintiff appellant, who isthe sister of Ponnambalam, says that prior to his death she had lenthim money and some of her jewels for the purpose of purchasing a motorcar X—4793. The certificate of registration 4D1 shows that this car wasa second-hand vehicle when Ponnambalam purchased it about February1945. The car is now about eight years old. It is alleged that at thedate of the death of Ponnambalam the plaintiff’s debt had not beenrepaid. On the other hand the 1st defendant asserts that the motorcar is her property bought with her money although registered in thename of her husband.
Ponnambalam left surviving him bis widow the 1st defendant, andtwo minor children, Seevaratnam and Jeganathan. A posthumouschild also was born.
On November 26, 1946, the plaintiff filed action in D. C. Jaffna 3189against the two minor children of Ponnambalam with the 1st defendantas their guardian ad litem. By its decree dated January 30, 1948, theCourt entered judgment in favour of the plaintiff against the two minordefendants for a sum of Rs. 910. Under a writ of execution issued bythe plaintiff, the motor car X—4793 was seized in the possession of the 4thdefendant respondent who claimed it. The evidence shows that onJuly 31, 1946, the 1st defendant (widow), who three days after herhusband’s death had been registered as owner, sold the vehicle to the2nd defendant for Rs. 2,2Q0 on December 17, 1946, who in turn transferredit to the 3rd defendant on May 22, 1947, and the 3rd defendant sold itto the 4th defendant on November 4, 1947. There is no evidence toshow that the 4th defendant, who is a man of a different ■ communityand a perfect stranger, was aware of the decree in favour of the plaintiff.Nor is there any evidence which proves that the 2nd, 3rd and 4th defend-ants did not buy the car for valuable consideration. Having regardto the age of the car, it would seem that this litigation must have costthe parties much more than this old vehicle is worth at present, unlessthe vehicle has been completely renovated.
The claim of the 4th defendant to the motor car having been upheld,the plaintiff on July 21, 1948, commenced the present action againstthe widow of Ponnambalam and the three purchasers seeking a declara-tion that this motor ear was liable to seizure under her writ and that thesales may be set aside as being in fraud of the creditors of Ponnambalam.The case went to trial on eight issues of which the District Judge onlydealt with the 7th and 8th issues, viz.—
“ 7. Is the 4th defendant a bona fide purchaser for the value ofthe said car ?
8. If so, can the plaintiff have the said car seized and sold as againstthe 4th defendant ? ”
Both sides have criticised the judgment of the District Judge for notdealing with all the issues.
DIAS S.P.J.—Kandiah v. Saraswathy
139
From the names of the parties one can assume that they are Tamils.The alleged cause of action arose in the Jaffna Peninsula. Are thesefacts sufficient to establish that it is the Thesavaiamai that governs thejurisdiction of Ponnambalam’s property, assuming that the motor caris his property ? The Thesavaiamai is a special law, and there may bemany Tamils resident in the Jaffna Peninsula who are not governed bythe Thesavaiamai. No authority has been cited to show that there isany presumption of law by which a Court can say without proof that theThesavaiamai applies to a particular Tamil who happens to reside inthe Jaffna Peninsula. In the absence of such a presumption I am ofopinion that the burden of proof is on the party who contends that aspecial law has displaced the general law in a given case to prove theapplicability of such special law. In the absence of such proof on thefacts in the record I hold that on the death of Ponnambalam his rightsare to be determined according to the principles of the general law.There is nothing in Mr. H. W. Tambiah’s treatise on the Laws & Customsof the Tamils of Jaffna which throws light on this point. No doubtthere are local customs in the Jaffha Peninsula which govern everybody,whether Jaffna Tamil or not; but this case does not come within anyof those customs. In the absence of proof that the Thesavaiamai appliesI hold that on the death intestate of Ponnambalam, the general rules ofintestacy applied to him—that is to say, his widow the 1st defendant,on Ponnambalam’s death on July 28, 1946, inherited one half of thismotor car, and his children the other half, assuming that the motor carwas his.
The 1st defendant sold the car on December 17, 1946. D. C. Jaffna3189 was instituted on November 26, 1946. Was she aware that thisaction had been filed ? That would depend on whether she had beenmade aware of the action on the date of such sale. This question hasnot been developed at the trial. Before an action against minors isinstituted there would probably be a letter of demand, steps would haveto be taken to appoint a guardian ad litem, over the minor defendants,the appointment would have to be made and summons would have tobe issued and served. Therefore the probabilities are that at the timethe 1st defendant sold her share of the car, she must have known of thepossibility that an action would be filed. It is to be noted that the 1stdefendant was made 3rd defendant to that action in her capacity asguardian ad litem. No relief was claimed against her personally.
In regard to the minors’ half share of this vehicle, the mother is thenatural guardian of her fatherless minor children. The law is that aguardian cannot without the sanction of the Court sell the immovableproperty of the minors—Jllustapha Lebbe v. JHartinus Girigorishamy v.Lebbe Marikar 2. Does the same rule apply in the case of movableproperty ? Professor R. W. Lee in his book on the Roman Dutch Law(4th edition) page 110 says : “ A guardian may in due course of adminis-tration sell or mortgage any movable property under his charge. Butthe alienation or hypothecation of immovable property, except by the
leave of the Court, is prohibited ”.
1 {1903) 6 N. L. R. 364.*
{1928) 30 N. L. R. 209.
140
DIAS S.P.J.—KandiaTi v. Saraswathy
The resultant position then is that the widow had the right to sellher half share of this motor car as well as the share of her minor children.The probabilities are that she was well aware that the plaintiff was aboutto claim the alleged debt due to her, and if she was successful in thataction, this car might be seized and sold in execution. The story ofthe 1st defendant is that she had to sell this ear as there was no othermovable property available. This is supported by the evidence of theplaintiff herself. The matter, however, does not end there.
In the case of Perera v. JSlarimuttu Canniah 1 this Court laid it downthat’ the creditor of an estate may follow property sold by an heir evenwhere there are other assets in the estate. Where the proceeds of pro-perty sold by an heir are not applied towards the payment of the debtsof the deceased, a creditor may follow the property in the hands of thepurchaser. De Kretser J contrasted the positions of an executor (andadministrator) with that of a creditor. He said “ A creditor has noneof these duties. He has a right to be paid. In the deceased’s lifetimehe could levy against any of his properties, and there is no reason whyhis rights should diminish because of the deceased’s death. In otherwords his position is totally different from that of an executor. It hasbeen laid down in a number of cases, and the position is not contested,that he may follow property alienated by an heir, who takes only a defen-sible title ”. So far as I can see this principle applies both to movableas well as immovable property. Therefore in this case, the rights of thewidow of Ponnambalam and his children to sell this motor car were alwayssubject to the right of the judgment creditor (the plaintiff) to follow theproperty sold even in the hands of a bona fide purchaser. There is noproof that the proceeds of sale were applied towards the payment of thedebts by the deceased. We know that the plaintiff was not paid. Thecase of Perera v. Marimuttu Canniah 1 was cited to the District Judgeat the argument, but he has not dealt with it in his judgment. I agreewith the learned counsel that his judgment renders no assistance in theelucidation of the problems we have to solve.
I have been proceeding so far on the assumption that this motor carwas the property of the deceased man. The plaintiff’s evidence is thatthe deceased, who was her brother, bought that car out of money lentby her to him. She says that the deceased man told her that he wouldsell the car and repay the debt, but he was murdered before he coulddo that. Her witness Vaithialingam stated that the deceased had askedhim to negotiate the sale of this car so that he could repay the plaintiff.Before the sale which the witness negotiated could be put through, thedeceased man was killed. The 1st defendant on the other hand swearsthat the car was really hers although it was registered in the name of thedeceased. She called Soosaipillai to state that 1st defendant had toldhim that the car was here. The parties therefore are at issue on thispoint. The question of the ownership of this car arises under issues1 and 6—but the trial Judge has not answered either of those issues. Hadhe done so and found in favour of the 1st defendant, then she beingabsolute owner, the car could be sold by her, and it would not be liablefor seizure under plaintiff’s writ against the children. On this disputed
1 (1944) 45 N. L. R. 337.
GUN’ASEKARA J.—Kandiah v. Saraswathy
14:1
question of fact, which might have gone to the root of the case, thedefendants had the right to demand that the trial Judge should decidethose issues one way or another. The defendants ask that this caseshould go back for a new trial. It seems to be a distinct hardship thatin a trivial dispute like this about an ancient motor car, that the partiesshould have to face a new trial. The defendants demand this and Icannot see how this can be denied them.
Tn the circumstances of this case I think it should go back for a decisionon issues 1 and 6. The order appealed from is set aside, and the caseis now sent back with the direction to the District Judge that he shouldmake an order after a decision on issues 1 and 6. The costs of the appealshould be costs in the cause.
I trust that even at this late stage the parties may be able to reachsome reasonable settlement.
I cannot part with this record without drawing attention to anotherirregularity in the proceedings which the trial Judge permitted. Heallowed the plaintiff to produce, as exhibit PI, the whole body of theproceedings in the earlier action D. C. Jaffna 3189. This is a violationof s. 154 of the Civil Procedure Code which enacts “ It shall not be com -petent to the Court to admit in evidence the entire body of proceedingsand papers of another action indiscriminately. Each of the constituentdocuments, pleadings or processes of the former action which may berequired in the pending action must be dealt with separately as abovedirected ”. The attention of Judges of first instance is directed to thewords of Bertram C. J. in Falalloon v. Cassim x. Each relevant portionof the record of another action must be separately marked and stamped.Proctors should beforehand obtain certified copies of such portions ofthe record as they wish to produce at the trial and Judges and theirSecretaries should see that these requirements are strictly observed.
GtTNASEKAItA J.
The facts are set out fully in my brother’s judgment and it is notnecessary for me to recapitulate them.
The learned District Judge’s note of the argument addressed to himby the plaintiff’s counsel contains a reference to the case of Pererav. Marimuttu Canniah2, which is cited by my brother. Though theDistrict Judge has not expressly referred to it again in his judgment heappears to have regarded the principle laid down in that case as beingapplicable only to a transfer of immovable property, for he holds that“ the maxim that would apply to a movable like the motor car in questionwould be ‘ mobilia non habent sequelam ’ ”. He concludes (rightly, inmy opinion) that in this view .of the law his findings -on issues 7 and 8involve a negative answer to issue 1 and render it unnecessary to answerthe other issues. I agree, however, with Mir. Tambiah’s contentionthat the learned Judge’s view of the law is erroneous for the reason thatthe question of title must be decided by the application of the provisionsof section 21 (1) of the Sale of Goods Ordinance (Cap. 70) and not the1 (1918) 20 N. L. R. alp 334.2 (1944) 45 N. L. R. 337._
142
ROSE O. J.—Fernando v. Khan
maxim cited by the learned Judge. This sub-section enacts that subjectto the provisions of the Ordinance, where goods are sold by a personwho is not the owner thereof, and who does not sell them under the autho-rity or with the consent of the owner, the buyer acquires no better titleto the goods than the seller had, unless the owner of the goods is byhis conduct precluded from denying the seller’s authority to sell.
Issue 1 is as follows : “ Is car No. X—4793 liable to be seized anil soldunder decree in case No. 3189 of this Court ? ”
It has been answered as follows :
“ I answer issue No. 1 in the negative because I find that at thetime of the seizure the car was the bona fide property of the 4thdefendant. ”
I would set aside this finding for the reason that in my opinion it is basedon an erroneous view of the law.
I agree that the case must be sent back for a decision on this issueand issue 6, “ Was the said car the absolute property of the 1stdefendant ? ” and I concur in the order proposed by my brother.
Case sent back for further proceedings: