080-NLR-NLR-V-65-MRS.-HILDA-VANDER-POORTEN-Appellant-and-J.-VANDER-POORTEN-Respondent.pdf
LOUD PEARCE—Hilda Vander Poorten v. Vander Poorten
386
[In the Petty Council]
Present: Viscount Madclifle, Lord Morris of Borth-y-Gesfc,Lord Guest, Lord Pearce, and Sir Kenneth Gresson
MRS. HILDA VANDER POORTEN, Appellant, and
J.VANDER POORTEN, Respondent
Peivy Council Appeal No. 31 op 1962
8. C. 376 of 1958—.D. O. Colombo, 34367(M
Claim far account of rents and profits—Items involving questions of fact—Not aproper subject-matter of appeal to Privy Council.
An investigation of items in the taking of an account where questions of factrather than principles of law are involved is unsuited to the jurisdiction ofthe Privy Council.
Appeal from a judgment of the Supreme Court dated 14th December,1960.
F. N. Gratiaen, Q.C., with Martin Jacomb, for the appellant.
Ralph MiUner, for the respondent.
Gur. adv. vuU.
July 11,1963. [Delivered by Lord Pearce]—
The appellant (hereinafter referred to as the wife) claimed from therespondent (hereinafter referred to as the husband) in the District Courtof Colombo an account of rents and profits received by him from hershare in certain estates during the period from 1st December 1940 downto the commencement of proceedings on 25th January 1955 and pay-ment of the amount found due, or in the alternative the sum of Rs. 50,000.Judgment was given in the wife’s favour for Rs. 31,622 and costs. Onappeal the Supreme Court of Ceylon set aside the judgment and dismissedthe wife’s claim on the ground that the husband had disbursed on accountof the wife a sum far in excess of the sum of Rs. 50,000 claimed by her.
The husband and wife are persons of substance. From November1940 they were co-owners of certain estates in Ceylon, the wife owningl/9th and the husband 8/9th. In certain other estates the wife owned1 /20th and the husband 8/20th. The husband managed the estates andpaid the profits into a joint banking account on which both husbandand wife could draw. The expenses of the household were paid outof this account and it does not appear that the husband had any otherbanking account. At first the parties were living together in amityand there is no reason to suppose that they had any financial disagreeLxv—17
J- ST- R14806—1,856 (1S/63)
386
LORD PEARCE—Hilda Vandot Poorimn «, Vander Poorien
mente. In 1950, howerer^they quarrelled and ceased to live together.In January 1951 the husband ceased to manage the estates and pro-fessional agents, Aitken Spence & Co., took over the management. Thewife obtained a divorce and took proceedings for maintenance. Whenthe present case came on for trial neither the wife nor the husband gaveevidence. On the husband’s aide there were called his charteredaccountant, the clerk of the bank which held the joint account, a sub-assistant and book-keeper of the agents Aitken Spence & Co., the chiefclerk of the Estates prior to 1950 and a clerk employed by the husband.From their evidence and the documents which they produced it waspossible to obtain a great number of detailed figures relating to financialtransactions, but little light was thrown on the relations of the partiesto one another or their mutual arrangements.
It was agreed at the trial that the wife’s share of the total distributedincome from the estates during the whole of the relevant period of fourteenyears was Rs. 161,488. It was further agreed that after Aitken Spence& Co. took over the management of the estates she received from thema total of Us. 129,866. There was thus a balance of Rs. 31,622 un-accounted for during the whole period of fourteen years. If, therefore,the wife is to be taken as having received nothing during the ten yearsin which the husband managed the business and the parties livedtogether, she was entitled to that sum. For the husband it was contendedin general that during those ten years his payments of her share of theprofits into the joint account constituted payment to the wife and inparticular that there had been paid out of the joint account many specifieditems on her account or at her request, amounting in all to Rs. 371,9S4,for which he was entitled to credit in any account with her. The learneddistrict judge held that payment into the joint account did not dischargethe husband and that none of the items could be taken into accountas being a debit against the wife which pro tanto discharged the husband.Accordingly he entered judgment for Rs. 31,622.
Their Lordships find it rinnecessary to refer to all the items in detail, butthere are two items on which the Supreme Court particularly relied asshowing that the husband had no remaining indebtedness to the wife.Between 1944 and 1948 the husband bought in his own and the wife’sname for the price of Rs. 70,000 paid out of monies from the joint account,a house in Colombo called Preston at which the parties lived. It is agreedthat she is thus the beneficial owner of half the house. Again, in 1947 thehusband paid out of the joint account Rs. 28,436 as the purchase price ofshares in the wife’s name of whioh she is admittedly the beneficial owner
A judgment deliverd by Lord Romer (Practice Note 69 Indian Appealsp. 172) and a judgment delivered by Lord Thankerton [N. R. Kapur rMurli Dhar Kapur 71 Indian Appeals, p. 149) have pointed out theundesirability of appeals concerned with items in the taking of anaccount where questions of fact rather than principles of law are involved.Their Lordships are in entire agreement with those observations In thepresent case any allowance or dis-allowance of items involvnd in the account
LORD PEARCE—Hilda Vander Poorten v. Vander PoortenMl
"^ …. ■… . — . — ■ ——v:—
depends on questions of fact and inferences of fact. It is difficult totrace in the record the intricate details of the various transactions and tosay whether this item or that should be allowed in any account betweenthe parties. Such an investigation is unsuited to their Lordships' juris-diction. More particularly is this so in a matrimonial dispute such asthe present in which neither party chose to give evidence, in which theamount involved is small compared to the sums at stake in concurrentmaintenance proceedings and in which the parties seem to their Lordshipsto be largely guided by tactical and emotional considerations. TheSupreme Court were in a better position than their Lordships’ Board forsuch an investigation but although the case was argued in detail beforethem, they were not unreasonably content to take a broad and summaryview of the case. Their Lordships are of opinion that the Supreme Courtwere right in dismissing the wife’s claim.
It was contended for the wife that the Supreme Court erred in principlein that they failed to apply the presumption of advancement. But sucha presumption ha3 little or no relevance to the facts of the present case.It is agreed that the wife is beneficial owner of half the house and all theshares. There is no reason here to presume that when the husbandpaid for these benefits to the wife out of a joint account containing hermonies and his, he used only his own money in the purchase, and cannotattribute her share of the funds in the joint account to any part of thepurchase price.
Since neither party gave evidence of their mutual financial arrange-ments, their Lordships must be guided by reasonable inference. Thefacts relating to the joint account and the parties’ course of dealing overthe ten years when they lived together in amity seem to indicate thatthere was between them an informal arrangement by which the husbandwas to pay into the joint account both the wife’s income and his own(which was approximately eight times as large as hers) and that thereshould be drawn from the account sums to pay for the various purposesof the matrimonial life. He was managing the estates and it was mainlyhe who was operating the account. By paying the profits into the jointaccount he was putting their respective incomes at their disposal in a waywhich was presumably satisfactory to both since both accepted thisposition for ten years.
If the wife had desired a strict accounting she could have asked forit at the time. But there is no indication that Bhe ever did so andpresumably she did not wish for it. So far as can be seen the informalarrangement was greatly to her advantage and it seems likely that sheconsidered the benefits which she received to be an adequte satisfactionof her rights.
It would be quite unreal to import ex post facto into such an informalarrangement the contractual precision which Mr. Gratiaen for the wifenow urges upon thair Lordships. Whatever might have been the rightsof the wife if she had received less than her fair share of benefits from the
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Okancleyaya Wangaeto Thara tr. Mtdgirigaia Svnanda Thar*
joint account it seams clear to their Lordships as it did to tile SupremeCourt that she has in this case received from it personal benefits and value(exclusive of mere normal matrimonial benefits) far in excess of the amountof her share of the payments into It, and far in excess of any sums whichshe would have received on any strict accounting.
Under those circumstances their Lordships cannot hold that the husbandnow owes a duty to account or to pay the wife any farther monies.
Their Lordships will therefore humbly advise Her Majesty that theappeal be dismissed. The appellant must pay the respondent’s costsof this appeal.
Appeal dismissed.