NALLIAH v. PONNAMAH

063-NLR-NLR-V-22-NALLIAH-v.-PONNAMAH.pdf


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mo.,
Present: De Sampayo J. and Schneider A. J.NALLIAH v. PONNAMAH.
95—D. C. Jaffna; 3,622.
Tesawalamai—Ordinance No. 1 of 1911—Thediathetam—Mudusom—Property acquired before marriage'—Investment during marriagein, bonds and notes…..
tender Ordinance Mo. 1 of 1911 (Tesawalamai), money which–a husband has saved out of his earnings before his marriagebelongs to him for his separate estate, whether it is strictlycalled mudusom or not. The circumstance that it was investedduring marriage does not change its character. Even if he investedit in the purchase of property during marriage and not on mereloans, the property would receive the character of the moneyinvested, and' would not be regarded as thediathetam. This is muchmore the oase when the investments take the shape of loans, ofmon£y on bonds or other instruments. A husband lent a sumof money before marriage on a mortgage of a house, and aftermarriage he purchased the house in consideration of the amountof the debt, and a further sum of money paid out of his earningsduring marriage.
Held, that a share of the house was thediathetam, and the husbandwas entitled to a share as his separate property according to theproportion of the respective sums of money.
T
HE facts are stated in the judgment of the District Judge(Sir Ambalavanar Kanagasabai):—
The administrator married the intestate on October 27,1913, and hadonly one child. The intestate died on July 4, 1917, and the child onApril 16,1918. He administered the estate of the intestate in this case,and has filed frhat is called the final account. The respondent, who isthe mother of the intestate and the only heir to the child, objects to theaccount being accepted on various grounds.
.The following issues were framed on the suggestion of counsel on bothsides:—
Had the administrator Bs. 9,000 before his marriage, and did hebring the money into the common estate ?
If so, is the administrator entitled to establish or claim the rightto deduct the same from the aggregate amount of certain invest-ments referred to in the final account ?
Whether the whole of the land described in item 1 of the finalaccount should be regarded as acquired property, or only 299/670shares ?
Was the sum of Bs. 1,000 advanced on bond referred to as the17th item paid by title administrator after the death of theintestate f
If so, was the said sum the separate property of the administrator ?
Was Rs. 600 paid to the cheetu club after the intestate’s death,and if so, is be entitled to deduct this amount from Rs. 1,000admittedly lent on the bond during her lifetime ? .
For what amount is the administrator liable to account in respectof the bond in the 17th item ?
Was an addial (a neck ornament) being made for the intestateabout the time of her death f
Had the administrator 80 or 60 brilliants to set on the addial t
Is the sum of Rs. 300 paid by Sathasivam to be regarded as theintestate’s property ?
' (11) Are the brilliants to be regarded as acquired property or separateproperty of the intestate ?.
■' (12) Was the sum of Rs. 1,600 sent to Dr. Nalliah a loan or a presentmade to him by the administrator with the consent of theintestate?.
(13) Did the administrator contribute to two shares in the cheetuclub or only one share of Rs. 100 ?
. (14) Were items 34 and 36 in the respondent’s objection the separateproperty of the administrator ?
(16) With regard to what items in schedule (&) of paragraph 10 of therespondent’s affidavit, is the administrator liable to account, andwhat is their value ?
Do professional earnings of the administrator form part of thethediathetam within the meaning of Ordinance No. 1 of 1911 ? _
Do items 2 to 19 in the inventory represent such earnings of theadministrator before and during the subsistence of the marriage,and if so, should they not be deleted f
Is it permissible for the administrator at this stage to withdrawfrom the position taken up by him at the final account ?
Is the administrator entitled to claim whatever money he bed at
the time of the marriage from what may be regarded as theproperty acquired during the marriage ?
On the 1st issue I find that the administrator had over Rs. 8,000 atthe time of his marriage, and that he brought this sum into the commonestate. Not that he had intended to settle half of this amoupt on hiswife, but he retained it treating it as mudusom property, though he didnot state its special character in deeding with it. It does not appearthat he specially distinguished this money from the acquisition when heinvested or otherwise dealt with this money ….
In investing or re investing this sum of Rs. 8,000 during married,life, he did not earmark it, as a wary villager would have done, bydescribing it as mudusom money in deeds or bonds by which the varioussums were invested. He should not suffer because of want of thisprecaution. It is dear from the evidence of the administrator and;Sinnetamby that the sum of Rs. 3,000 lent on bond dated March 17,1917 (3rd item in the account), was part of the Rs. 8,000, though it isnot referred to as mudusom money in the document. This bond wasone of the three items admittedly claimed by the administrator beforehe applied for letters of administration, the other two being the 1st and2nd in the list marked R 1 produced by the respondent.
The next question is whether he is entitled to deduct this sum fromthe aggregate amount of investments referred to in the final account.The law seems to be clearly in favour of the administrator, and it is •
( 200 :
1920.
Nattiah v.Ponnamdh
just that he should be allowed to do so. One of the three classes ofproperties known to the Tesawalamai is called muduaom or hereditaryproperty when brought by the husband. Vide section 1, clause 1Now. a stun of Rs. 8,000 wa3 brought by the administrator, and it mustbe regarded as muduaom though not inherited by him from his parents;
It is not and cannot be disputed that the house purchased on P 1 fallswithin the category of mudusom. Section 1, clause 15, says “ shouldany of the man’s hereditary property be diminished, when one of themdies, the same must be made good from the acquired property if it besufficient.” This rule remains in force, and is not affected by OrdinanceNo. 1 of 1911. Strictly speaking, the administrator’s claim is not tohave his muduaom made good out of the acquired property, but to haveit excluded from the thediaihetam. It is not suggested that the moneyin question was spent or lost. I think he is entitled to deduct Rs. 8,000out of the estate as he has done. I answer the 2nd issue in favour ofthe administrator to the extent of Rs. 8,000.
On the 3rd issue, I find that 299/570ths .share of the 1st land ininventory should be treated as ihediathetam, and the balance 271/570share as the administrator’s muduaom. It is admitted by the respon.dent’s counsel that the whole amount secured by bond No. 5,021 of1913 was included in the consideration for the transfer No. 27 of 1915,
P 2, for the land in question. It is common ground that on the saidbond No. 5,021 a sum of Rs. 1,356, including the principal sum ofRs. 1,350, was due to the administrator on the date of his marriage, andthat the consideration for the transfer-P 2 was Rs. 2,850. The amountof Rs. 1,355 was the administrator’s separate money, and it is only thebalance stun of Rs. 1,495 that should be regarded as ihediathetam, sothat only one half of this sum of Rs; 1,495 should be treated as theintestate’s share of the acquisition. On this basis it has been calculatedand found that 229/570 share should be regarded as the thediaihetamshare of the land, if, in point, of law, the administrator’s contentionthat the land partook of the character of the money paid for it and thathe should retain a share of it equivalent in value to the amount ofhis separate money Rs. 1,355, besides his half of the thediaihetamRs. 1,495. The administrator’s contention is supported by a series ofdecisions, amongst which I may mention 1 N. L. B. 251 and 987, D. CJaffna (Testy.), decided on September 29, 1902. A certified copy ofthis latter decision is filed of record. Though the deed by which theland in dispute in the latter case was acquired during married state bythe father of the intestate did not say that the money was his muduaommoney, yet it was held that, the money having been established byother proof to have been his muduaom, the land took the character ofthe money and should be regarded as his muduaom property, heritableby his heirs only. The principle is fair and equitable that the conver-sion of one property into another does not alter the character of theproperty converted, but transmits it to the object which takes its place.Here the money is clearly earmarked, and it is unreasonable to say thatsimply because a land was purchased during the subsistence of marriagethough with muduaom money, it should be regarded as thediaihetam.The Ordinance No. 1 of 1911 only declared the law that existed inrespect of acquired property and did hot alter it. Section 21 of thisOrdinance says what shall be known as thediaihetam. But in myopinion it does not go to the length of saying that the mere accident of apurchase during married state gives the property the character ofthediaihetam. The valuable consideration referred to in that sectionmust have been itself ihediathetam to make the property ihediathetamas it was the case before the Ordinance. Alan^purchased by a person
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during married life with money acquired by him before his marriagecannot be regarded as property acquired for valuable considerationwithin the meaning of section 21. In other words, the share in questionis like a property purchased by a husband with money donated by hisfather. Sections 20, 21, and 22 should be read together. The onlyalteration that was made in respect of ihediathefam was by section 8,which was taken over from the Ordinance No. 15 of 1876 to improvethe position of a wife with regard to some of her own earnings. If itbe said that money acquired before marriage does hot fall withinone or other of the properties classified in these sections, my answerwould be that the man who acquired it would be the sole owner Of theproperty, whether it remained as money or turned into a land, and thequestion of inheritance will not arise till after his death ….
I have answered the 8th issue in favour of the respondent by holdingthat the value of the addial should be regarded as the intestate9sseparate property. The 9th, 10th, and 11th issues are connected withthe 8th and may be disposed of together. The administrator wantedto make an addial set with rubies and brilliants for his wife and pur-chased 60 brilliants, which is the subject of the 6th issue, and gave acertain number of sovereigns to one Thalis asking him to make an addial.One Sathasivam, another jeweller, under whom Thalis was working,agreed to finish the work, supplying the required rubies, and receivedsome money. The framework was made and shown to the adminis-trator in 1916 ; but the rubies set on it by Sathasivam having beenconsidered unsatisfactory, the addial was not accepted; nor were thebrilliants set on it.The question is whether the unfinished addial with
the brilliants should be regarded as the wife’s property. If it had beencompleted, it would have been considered as a part of her paraphernalia.But the fact that it remained unfinished at the time of her death doesnot, on principle, seem to alter the case. The brilliants had been keptby her, and the addial was intended as a-present to her. The adminis-trator has proved that he had purchased only 60 and not 80 brilliantsand that the cost was Rs. 500. In one of the lists produced marked R 2the number of brilliants is stated to be 80. But after the adminis-trator gave his evidence, it was not disputed that the number was only60. The administrator may be technically right in saying that he didnot make a present of the brilliants to his wife. But the brilliants wereto be set on the addial which was intended as a present to her. I there-fore hold, though with some diffidence, that the brilliants should betreated as her separate property and not as thediatketam.
With regard to the 12th issue, it is (dear that the administrator'sobject in remitting the sum of Rs. 1,500 to one of his brothers who wasthen a medical student in England was to enable him to prosecute hisstudies there. The administrator says he had the consent of his wife tothe remittance being made as a present. The money, as was all theother moneys involved in this case, was a part of his professionalearnings. He was very kind to his wife, and was evidently desirous ofdecking her with costly jewellery and making her quite comfortable andpleasant. They loved each other, and were a happy pair with brighthopes, least expecting the estate of one of the partners to be involved ina litigation of the present nature.
In these circumstances it is fair to conclude that the administratorand his wife intended this sum of Rs. 1,500 as a present. It has also tobe remembered that with reference to a previous transaction betweenthe brothers, the administrator obtained a pro. note from his brotherfor a sum of Rs. 2,000 then advanced to him- It may be that the notewas obtained either for ^ie purpose of recovering, the money, when the7*
1920.
NaUiak v.Ponnamdh
1020.
Nalliah v.Ponnamnh
( 202 )
brother rose to a position of affluence, or with the object of having ahold on him in the general interests of the family. Whatever theobject was, I think the absence of a pro. note for the sum in disputeindicates the truthfulness of the administrator’s contention that theamount was presented with the consent of his wife.
H. J. C. Pereira (with him Balasingham and Bajaratnam), for theappellant.—The District Judge holds that the administrator hadthe sum of Rs. 8,000 when he married, and that he brought it intothe common estate. This sum, it is admitted, was not inherited,and it clearly is not mudusom as defined by Ordinance No. 1 of 1911.The investments during marriage were for valuable consideration,and they are therefore acquired property within the meaning ofsection 21. The doctrine of earmarking does not appear to havebeen recognized by Ordinance No. 1 of* 1911. Just as land belong-ing to a wife when converted into money under Ordinance No. 15of 1876 becomes the absolute property of the husband, so allproperty acquired for valuable consideration during mafriage isacquired property. In any event, the sum of Rs. 8,000 was notearmarked, and the administrator cannot, therefore, claim it as hisexclusive property. He has dealt with this sum of Rs. 8,000 andhis earnihgs during marriage as one common fund. He cannot nowseek to deduct the Rs. 8,000 out of the balance left and say thatall his presents and gifts and other expenses came out of moneyacquired after marriage and not from this sum.
The land referred to in item 1 in the inventory was during thesubsistence of marriage. A part of the consideration for this wasa sum of Rs. 1,350 lent some fifteen days before marriage on amortgage of this land. The District Judge is ifrrong in saying thatonly a portion of the land, is acquired property. The whole land isacquired property, and the administrator is only entitled to claimback Rs. 1,350 plus interest up to date of marriage. Counsel referredto Ponnamah v, Kanagasuriyam}
A. St. V. Jayaimr dene (with him Arulanandan and Joseph), forthe respondent, argued on the facts (not called upon to reply onthe law).
Cur. adv. wit.
October 11, 1920. De Sampatto J.—
This is an appeal from an order judicially settling the accountof an administrator in a testamentary suit. The deceased was thewife of the administrator, and she died leaving an infant childas her heir. But within a few months the child also died. It isagreed that the appellant, who is the mother of the deceased, is thesole heir to the child, and has been regarded in these proceedingsas entitled to the property of the deceased which would have come 1
1 (JSi6) 19 N. L. R. Zfg*
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to the child if living. The appellant raised objections to anumber of items in the account, but we have to consider onlytwo points.
The administrator, husband of the deceased, is a successfulmember of the legal profession, and before his marriage he hadconsiderable sums of money saved out of his professional earnings,and after his marriage he invested these moneys and other moneyssubsequently acquired in bonds and promissory* notes. Theappellant’s case is that all these investments must be regarded asthediathetam or acquired property of both the spouses, and thathalf of them should be included in the deceased's estate. Thehusband, on the other hand, contends that so much of the moneyinvested as belonged to him before the marriage is his separateproperty, and need not, therefore, be brought into the testamentaryaccount. It is well settled, I think, that if the money by whichacquisitions are made during marriage can be earmarked ortraced back to the mudusom of the husband or the wife, theacquisitions should not be considered part of the common property,but would partake of the nature of the source from which theysprang. The Acting District Judge, who is a gentleman of greatexperience, and well versed in Jaffna customs, has, in a well-considered judgment, found that the investments in question tothe extent of Es. 8,000 was traceable to the moneys which hadbelonged to the husband before the marriage, and that the invest-ments less that sum should alone be considered common propertyand be liable to be accounted for in the testamentary accounts.This finding of fact and the ruling of the learned District Judgeare, in my opinion, quite right and just. Mr. H. J. C. Pereira, forthe appellant, however, has raised a new point. He contends that,whatever might be the correct interpretation of the originalTesawaJamai, the meaning of mudusom and thediathetam hasbeen altered by the Ordinance No. I of 1911. Section 17 of theOrdinance declares that “ property devolving on a person bydescent at the death of his or her parents or of any other ancestorin the ascending line is called mudusom (patrimonial inheritance)/’and section 21 declares that “ the following property shall be knownas thediathetam of any husband or wife: (a) property acquiredfor valuable consideration by either husband or wife during thesubsistence of marriage, (6) profits arising during the subsistenceof marriage from the property of any husband or wife.” Theargument founded on-these provisions is that the husband’sprofessional earnings before marriage, not being property devolvingon him by descent, were not part of his mudusom; and that theinvestments on bonds and promissory notes, wherever the moneycame from, were property acquired for valuable considerationduring marriage, and, therefore, were thediathetam or acquiredproperty. There are oneW>r two difficulties arising from this view
1920.
Db SaupayoJ.
NaUiah t>.Ponnomah
( 204 )
1920.
Db SaupayoJ.
NaUiak v.Pcnnamah
of the matter. Mudusom does, in general, mean property devolvingby descent, and this, perhaps, was its sole meaning in the ancientdays when unmarried sons and daughters could not aoquire anything for themselves, but what they acquired belonged to theparents, and would come baok to them on the death of the parents.But this custom as to disability has long since become obsolete, andsons and daughters can now acquire for themselves before marriage,and such property has been considered their mudusom. Elseunder what other class would such property fall ? It cannot bethediathetam since the acquisition is not^made during the sub-sistence of the marriage. Then, again, the expression “ propertyacquired for valuable consideration ” in section 21 well applies toacquisitions by purchase and the like, but is wholly inappropriateto investments of money on loans. The truth appears to be thatsections 17 and 21 of the Ordinance are not, and do not purport tobe, exhaustive definitions of mudusom and thecUathetam. They, Ithink, are intended to be only general explanations of the Tamilwords. The provisions of the Ordinance which are most relevantto the present question and determine the rights of husband andwife to property acquired before marriage are those contained insections 8 and 9, which declare such property to belong to the manor woman, as the case may be, for his or her separate estate.I think, therefore, that the money which the husband had savedout of his earnings before his marriage belonged to him for hisseparate estate, whether it is strictly called mudusom or not.The circumstance that it was invested during marriage does notchange its character. Even if he invested it in the purchase ofproperty during marriage and not on mere loans, I think that inview of the principle of the decisions on this point, the propertywould receive the character of the money invested, and wouldnot be regarded as thediathetam. This is much more the casewhen the investments take, as in this instance, the shape of loansof money on bonds or other instruments. I am unable to agreewith the argument of counsel on behalf of the appellant.
The only other point which need be considered on this appealrelates to a certain house which the husband purchased during themarriage. He bad lent a certain sum out of the money whichbelonged to him before marriage on a mortgage of the house,and subsequently he purchased the house in consideration of theamount of the debt and a further sum of money paid out of hisearnings during marriage. The District Judge has struck a pro-portion according to these respective sums of money, and declaredthe husband to be entitiled to a corresponding share of the housefor himself, and the rest of the house to be thediathetam to bedivided between the husband and the heir of the deceased wife.This, I think, is a oorrect and reasonable adjustment of thematter.
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On the questions discussed in appeal, and on all other points*involved in the case, the judgment under appeal is, I think, right,and I would dismiss the appeal, with oosts.
Schneider A.J.—I agree.
Appeal dismissed.
The following is the judgment referred to in the judgment of the DistriotJudge:—
No. 987—D. O. Jaffna.
September 29,1902.Layabd C.J.—
Two questions have been raised in the appeal, first, whether the 5th land inthe inventory was acquired by the intestate’s father with his mudusom money,and, if so aoquired, should that land devolve on the heirs on the father’s sideonly or not. The appellant’s counsel has very properly not pressed the'question as to whether this land was acquired with the father’s mudusommoney, but he argues, that even if it was so acquired, it should go to theheirs on both sides. It may be that the law is as urged by appellant’s counsel;T do not say it ij not so, for it is not necessary for me to decide it here, because'I find that the parties in the Court below limited the question to one of fact,viz., whether the land was acquired with the father's mudusom money, andthe parties agreed that if it was so acquired it should go to the heirs on thefather’s side only. The question now raised by the appellant’s counsel wasnot argued in the Court below, nor was it decided by the District Judge, norwas it mentioned or referred to in the petition of appeal. We cannot thereforein this case, even though we recognize the ingenuity of appellant’s counsel,decide a question which the parties in the Court below did not raise, but ratheragreed should be decided on a certain eventuality, in a particular way. So, inmy opinion the appellant's appeal with reference to the first question fails.
The second question raised by appellant’s counsel was whether the adminis-trator did actually perform the' anthiaddi and veeddukkiruddvan ceremoniesfor which he has charged Rs. 137* 27. The Judge in the Court below has foundon the evidence adduced by both sides that the administrator was the properperson to perform these ceremonies and that he actually did perform-them. Iam not prepared to interfere with the finding. He has, therefore, allowed theitem charged by the administrator, Rs. 137*27, as expenses incurred by him incarrying out these ceremonies; The appellant’s counsel further argues thatif these ceremonies were performed by the administrator, he cannot chargethese amounts to the estate of the intestate which he is administering. Therespondent’s counsel, the Solicitor-General, tells us that it has been usual andis the practice of onr Courts to allow the persons who perform these ceremoniesto recoup themselves out of the estate of the deceased for the expenses incurredby them in respect of such ceremony. We are not in a position to say whethersuch has been the practice, and whether it has been usual for the DistrictCourt of Jaffna to allow sums expended in carrying out these ceremonies to bepaid for out of the estate of the person whose property is being administeredby an administrator. We, therefore, in dismissing-this appeal make no orderas to whether this item of Rs. 137*27 should be passed, but we leave it to theDistrict Judge, if he finds that it is the practice in the Jaffna Courts to chargesuch expenditure to intestate estates to allow these items to be charged by theadministrator to the estate he is administering in this case.*
If he finds that such expenditure is not by custom usually charged to theestate of the deceased person, the District Judge must not allow the adminis-trator charge this item of Rs. 137-37 in his account. The respondent isentitled to the costs of this appeal.
Wbitot J. agreed.
1920.
Dx SampayoJ.
Nalliah v.Ponnamab