047-NLR-NLR-V-25-MURUGESU-et-al-v.-KASINATHER.pdf
Present: Garvin A.J. and Jayewardene A.J.MURUGESU et al v. KASINATHER.
124—D. C, Jaffna, 16,470.
Tesawalamai—Right of husband to deal with the entirety of an acquiredproperty after the death of wife.
Where a husband acquired a property during marriage, hecannot after his wife's death, leaving children, dispose of theentire property. A half share vests in the heirs of the wife on herdeath.
HE defendant-appellant was the administrator of the estate of
his late mother, Valliammai, who was married to one Kathir-kamer Artunugam. During their marriage on December 13, 1890,the piece of land in dispute in this case was purchased by them, thedeed being in the name of the husband, Arumugam. Valliammaidied in August, 1908. The appellant claimed one-half share Ofthe said piece of land as the theduUketam of the spouses, and includedthe share in the inventory filed in the administration case of herestate, when the plaintiff-respondents, who claimed to have pur-chased the entire land from the appellant’s father, Arumugam, on adeed executed after her death, namely, on October 1, 1908, broughtthis action for declaration of one-half share of the said piece ofland inventoried by the appellant.
The learned District Judge held as follows :—
It is admitted that the vendor to the plaintiff purchased this landduring his marriage with Valliammai. The conveyance, however,*is in favour of Arumugam, the husband of Valliammai and vendor tothe plaintiff.
It is not denied that the plaintiff, who purchased after the death ofValliammai, is a bona fide purchaser for value.
Mr. Duraisamy, who appeared for the plaintiff, argued, on theauthority of 23 N. L. R. 97, that, as the legal title was in Arumugam-at the time of sale, the plaintiff took good title to the entire land.
Mr. Thambyah, on the other hand, argued that this was the acquiredproperty of the spouses ; on the death of Valliammai one-half of itwould, by the rules of the Tesawalamai, devolve on the heirs of Valli-ammai ; and, therefore, at the time of sale by Arumugam-: to theplaintiff, he had title to no more than one-half of the land, and that wasall he could convey.
* I am of opinion, however, that the rule laid down by the Chief Justice,being the latest pronouncement on the subject, should be followed,especially as it is intended to safeguard the interests of purchaser forvalue from persons having the legal title.
The heirs of Valliammai, no doubt, have their remedy againstArumugam for any loss they may have suffered in consequence of thesale to the plaintiff.
On the first, second, and seventh issues I hold in favour of the-plaintiff, and direct that judgment be entered for the plaintiff, with
costs.
( 202 )
1923.
Murugeau
v.
Kaeinaiher
Balasingham, for the defendant (administrator), appellant.—On death of one Spouse, half the thediathetam or “ acquiredproperty ” vests absolutely in the children, subject to the rightsof the administrator as to payment of debts, &c. On-the deathof the wife, the right of the husband to deal with the half share towhich the wife was entitled ceases.
The law as to acquired property in the Tesawaiamai is the sameas the law as to community property under the Roman-Dutchlaw. Section 22 of the Tesawaiamai Ordinance merely re-enactsthe old law. See Tesawaiamai, section 15, paragraph 2. Thepassage in Sellachchy v. Visuvanathan Chetty1 relied on by theDistrict Judge refers to alienation during the lifetime of both spouses,and further as to property situate outside the Northern Province.Those remarks, even if correct, have no application to this case.
E. W. Jayewdrdene, K.C. (with him Joseph), for the plaintiffs,respondents.—The husband had legal title, and those who purchasedfrom him have good title. If the wife or her heirs are prejudicedby the sale, they have a right to compensation against the husband.They cannot claim the property sold in an action ret vindicatio, aswas held in Sellachchy v Visuvanathan Chetty (supra). In any casethe husband had a right to sell for debts. The deeds filed show thatthe property was subject to a mortgage debt, and that the mortgageewas paid off with the proceeds of sale. It was held that there isa continuing community between the surviving spouse and thechildren, and that the surviving spouse might, under the Roman-Dutch law, sell property for payment of d^bts.
In any event the husband was in the position of an executor deson tort, and it was held in Silva v. Salman 2 that he may sell land forpayment of debt. This is a belated application for administrationafter ten„years. Counsel cited 2 C. L. R. 132 and 3 S. C. R. 164.
Balasingham, in reply.
August 6, 1923. Garvin A.J.—
The material facts in this case are as follows:—During thesubsistence of a marriage between Valliammai, and % man calledArumugam, the latter purchased the land which is the subject ofthis action. Valliammai died in August, 1908. In October, 1908,shortly after her death, Arunpigam sold this property to theplaintiffs, and it -is upon this deed the plaintiffs now base theirclaim. I should mention that in 1905, during the subsistenceof the marriage, this property was mortgaged as security for a debt-of Rs. 656. Now, at the trial of the case, several issues wereframed. No evidence appears to have been tendered by eitherside, and the indications are that the parties decided as a preli-minary to argue the question of law. For the plaintiffs.it was
* (1922) 23 N. LTR. 97.* (1916) 19 N. L. R. 305.
(. 203 )
contended that, inasmuch as the original title deed was in favour. of Arumugam, Arumugam had a right to. make the transfer underwhich the plaintiffs claim, and that whatever remedy was availableto VaUiammai or her heirs against him, they had no right to impeachthe title which was passed by Arumugam’s transfer to the plaintiffs.The learned District Judge appears to have accepted the plaintiffs’contention which he mistakenly thought was justified by someobservations of Bertram C.J. in the case of Seelachchy. v. Visuvana-than Chetty (supra). This case appears to me to be concluded by theprovisions of section 22 of Ordinance No. 1 of 1911. That sectionstates with reference to acquired property that upon the deathof one of the spouses one-half of this joint property shall remainthe property of the survivor, and the other half shall vest in the heirsof the deceased, subject, of course, to the Tesavxdamai relating to itsliability to be applied to the payment of debts. There can be noquestion, therefore, that upon the death of VaUiammai, by operationof law, the title to one-half of this property was vested in her heirs*This disposes of the point upon which the learned District Judgebases his judgment. But Mr. Jayewardene for the respondentscontends that he is entitled to hold this judgment for other reasons.'He contended, in the first place, that this property had been soldby the husband for the payment of the debts of the community,and that in so acting, the husband did what he was entitled to doin law. In the second place, he argued that, in any event, thecircumstances of the case show that the husband has made thistransfer bona fide as executor de son tort in order to realize meansto satisfy the debts of the deceased. But these are questions whichmust certainly be considered upon proper materials. I do not feelthat the material upon the record justifies me in expressing anopinion upon these two points, and I would, therefore, set asidethe judgment, of the District Judge for the reasons stated by meearlier in the course of this judgment, and remit the case to thelower Court for trial of the remaining issues and for the developmentof the points which I have already indicated.
The costs of this appeal will be costs in the cause.
Jayewardene A.J.—I entirely agree.
Set aside*
♦
25/13
1923.
Garvin A.J*
Murugesuv.
Kasinathe