021-NLR-NLR-V-54-RASAMMAH-Appellant-and-KARTHIGESU-et-al-Respondents.pdf
110
Itasammah v. Karthigesu
Present: Dias S.P.J. and Gunasekara J.RASAMMAH, Appellant, and KARTHIGESU et al., RespondentsS. G. 229—D. G. Jaffna, 3,159
Thesavalamai (Cap. 51)—JPart IV, Clause. 1—Wife living in separation—Right totransfer dowry property without consent of husband.
Under the Thesavalamai a married woman has no capacity to transfer herdowry property without the consent of her husband even when the spouses areliving in separation.
A.PPEAL from a. judgment of the District Court, Jaffna.
S. J. V.ChelvanayaTcam, K.G., with G. Vanniasingham and G. C. Niles,for the 4th defendant appellant.
H. V. Perera, K.G., with H. W. Tambiah and A. Nagendra, for theplaintiff respondent.
Cur. adv. vidt.
GUJSTASEKAJrtA J.—Sasatmnah v. Kcirthigesu
111
October 16, 1951. Gitnasekaka J.—
This is an action for declaration of title to land. The property inquestion, which is 2 lachams in extent, is depicted as lot 1 in plan Z.Together with a further extent of 2 kulies out of the adjoining lot 2, itforms the northern half of Periyavalavu which was at one time ownedby the fourth defendant-appellant’s mother. This northern half ofPeriyavalavu was part of the dowry given to the appellant by her parentsin September, 1909, when she married one Ponniah ; and the southernhalf (consisting of the rest of lot 2 and lots 3 and 4) formed part of hersister’s dowry. On the 26th February, 1919, by the deed PI, the appel-lant purported to transfer the eastern half of the northern half of Periya-valavu to the plaintiff respondent’s father Murugar Krishnapillai for aconsideration of Rs. 300 and on the 6th April, 1919, by the deed P 2, thewestern half for Rs. 150. Krishnapillai died in October, 1930. By thattime the value of the property appears to have been greatly enhanced bythe erection of buildings on it. It had been mortgaged by Krishnapillaiand at the time of his death the mortgage was held by one Subramaniam,to whom it had been assigned. On the 3rd October, 1932, the propertywas sold with the sanction of the court in the administration of Krishna -pillai’s estate to enable the executor to pay the mortgage debt and theother debts of the estate and testamentary expenses. The sale wasby public auction and the property was bought by Subramaniam forRs. 15,750. On the 11th March, 1933, he transferred it to the plaintiffsubject to a life interest in favour of the plaintiff’s mother Xiedchumipillaiin consideration of a sum of Rs. 16,000 paid to him by the latter. Ledchu-mipiilai died in 1935 and the plaintiff claims that he is now the absoluteowner of the property.
The main issues in the action relate to the validity of the transfers P 1and P 2 and prescriptive possession. On both matters the learnedDistrict Judge held in favour -of the plaintiff-respondent.
The appellant and her husband Ponniah had entered into a deed ofseparation in 1916 and at the time of the execution of P 1 and P 2 shewas living with Krishnapillai as his mistress. Ponniah died on the23rd December, 1927. It is contended for the appellant that P 1 and P 2,which were executed in Ponnish’s lifetime, were executed without hisconsent, and for that reason conveyed no title to Krishnapillai. Thelearned District Judge holds that they were executed without Ponniah’sconsent, but that his consent was not necessary, for the reasons that heand the appellant were living in separation from each other and that theyhad agreed in the deed of separation that neither of them “ should claimany right or title whatsoever to the property of the other. ”
It is agreed that the appellant and Ponniah were persons to whom theTesawalamai applied. Mr. Chelvanayagam contends that under thatlaw a married woman had no capacity to transfer her dowry propertywithout the consent of her husband even though they were living in sepa-ration. In support of this contention he relies on the following statementof the law in Part IV, Clause I of the Tesatoalamai (Cap. 51) :
– “ When husband and wife live separately on account of somedifference, it is generally seen that the children take the part of themother and remain with her. In such a case the husband is not at
112
GUTSTASEKARA J.—Rasammah v. Karthigesu
liberty to give any part whatsoever of the wife’s dowry away ; butif they live peaceably he may give some part of the wife’s dowryaway. And if the husband on bis side wishes to give away any partof his hereditary property which he has brought in marriage, hemay then give away one-tenth of it without the consent of the wife andchildren, and no more ; but the wife, being subject to the will of herhusband, may not give anything away without the consent of herhusband.”
Mr. Perera contends that what is dealt with here is the subject of giftsand not sales, and also that the statement regarding the wife’s dis-ability relates only to a disability when the spouses are living together.I agree with the first of these contentions but not with the second. PartTV is entitled “Of a Gift or Donation ” and the heading of Clause 1 is“ In what cases a gift may or may not be made where a husband andwife live separately”. The clause, as I understand it, confines itself tothe topic so described and states the extent of each spouse’s rights togiveaway property when they “live separately on account of some differenceWhen they so live separately the husband may not give away any part ofthe wife’s dowry (though he may give away some part of it “ if they livepeaceably ”) and even of his own hereditary property he may not giveaway more than a tenth part without the consent of his wife and children.Apparently, the reason for these restrictions on the husband’s right to“ give away ” his own . property and a part of his wife’s dowry is thatwhen spouses live in separation “it is generally seen that the childrentake the part of the mother and remain with her ”. As for the wife,she may not give away anything without the consent of her husband, forthe reason that she is “ subject to the will of her husband ”.
There appears to be no reason for construing the expression “ beingsubject to the will of her husband ” to mean “ when she is living with herhusband and therefore subject to his will ” rather than “ because she issubject to the will of her husband ”. It seems to me that the latter isnot only its more obvious meaning but also the only meaning it can bearif the statement regarding the wife is one relevant to the topic that isdealt with in the clause. Thus, the rule that a wife “ may not give any-thing away without the consent of her husband ’ ’, even when they are living inseparation, appears to follow from a more general rule that because she issubject to the will of her husband she may not alienate her property at allwithout his consent. That there is such a general rule of the Tesawalamaiis recognised in the case Chellappa v. Kumarasamy 1, where Ennis J. andde Sampayo J. held that under that law a married woman is not com-petent to deal with her immovable property without the concurrence ofher husband. Although that was not a case of spouses who were living inseparation the question of the validity of a deed executed by the wife with-out the husband’s concurrence was decided on the broad ground that “ thedisability of a married woman is the same under Tamil customarylaw as under the general law prevailing in the Island ”. (Per de Sampayo J.)I do not think that the decision in Ramalingam v. Puthathai 2, which isrelied on by Mr. Perera, is in conflict with this view. The question there
(1915) 18 N. L. R. 435.* (1899) 3 N. L. R. 347.
Baatiam PiUai v. Anna. Fernando
113
was whether a deed whereby a wife who was separated from her husbandpurported to sell land was invalid for the reason that it was not signed bythe husband as well. It appeared that she was “ compelled to sellthe lands to procure herself maintenance ”, and Withers J. held thatthat circumstance implied her husband’s assent. That case is thereforeno authority for the proposition that the husband’s consent is not neces-sary for the validity of a sale by the wife when they are living in separation.
It was contended by Mr. Pererathat if the question as to the validity ofthe transfers P 1 and P 2 fell to be decided under the Roman-Dutch Lawthey must be held to have been voidable merely and not void. As theTesawalamai itself provides a rule for the decision of the question, itis not necessary to consider this argument. The ' District Judge’sfinding that the two deeds were executed by the appellant without herhusband’s consent was not canvassed in appeal and I hold that havingbeen executed without his consent they conveyed no title to Krishnapillai,
The learned District Judge’s finding on the issue of prescription is thathe is satisfied that the plaintiff has acquired a prescriptive title to thepremises. It is contended for the appellant that the learned Judge hasfailed to give adequate consideration to the evidence in support of theappellant’s case on this issue.
[His Lordship then discussed the evidence relating to prescription, andconcluded :—J
There appears to be no sufficient ground for reversing the learnedJudge’s finding on the question of prescription.I would therefore dismiss
the appeal with costs.
Dias S.P.J.—I agree.
Appeal dismissed.