040-NLR-NLR-V-70-S.-ARUNASALAM-et-al.-Appellants-and-C.-AYADURAI-et-al.-Respondents.pdf
ArunasaXam v. Ayadurai
165
1967Present : Alles, J., and Siva Supramaniam, J.
S. ARUNASALAM et al., Appellants, and C. AYADURAI et al.,
Respondents
S. G. 12j1966 (Inty.)-D. C. Point Pedro, 8184
Thesavalamai—Thediatheddam—Immovable property purchased by husband in hisfavour—Consideration paid out of loan raised by husband and wife jointly—Death of wife thereafter intestate—Devolution of the acquired property—JaffnaMatrimonial Rights and Inheritance Ordinance, ss. 23, 26.
A person, who was subject to the Thesavalamai, married in 1949. In 1957,during the subsistence of the marriage, he purchased a land in his favour out ofmonies raised by way of a loan in respect of which he and his wife were jointlyand severally liable. As security for the loan, he mortgaged the property whichhe purchased and the wife mortgaged certain lands which she had received byway of dowry at the time of her marriage. The wife died in 1959, intestate andissueless, leaving behind as her heirs her father, two brothers and a sister.
Held, that the property bought in 1957 fell under the category of Thediathed-dam and both spouses were equally entitled to it.
“ Where a property is purchased during the subsistence of marriage by aspouse subject to the Thesawalamai out of a loan raised jointly by both spouses,the property so acquired will fall under the category of Thediatheddam andboth spouses will be equally entitled thereto. The fact that the security grantedfor the loan is a mortgage of the separate property of either spouse will not renderthe loan so raised the separate property of that spouse. Nor will the propertypurchased become the separate property of that spouse. If the property ispurchased in the name of one spouse only, that spouse will hold a half shareof the property in trust for the other spouse. ”
Held further, that one half of the half share of the acquired property whichbelonged to the deceased wife as her Thediatheddam devolved on the survivingspouse while the remaining half of that half share devolved on the heirs of thedeceased. Under section 23 of the Jaffna Matrimonial Rights and InheritanceOrdinance one half of the remaining half share devolved on the father of thedeceased, and under section 26 the balance half share devolved equally on thebrothers and sister of the deceased.
“ Ordinance No. 58 of 1947, however, effected a vital change when it repealedthe provision that Thediatheddam was property common to the two spousesand that on the death of either spouse one half remained with the survivorand the other half vested in the heirs of the deceased and introduced instead anew concept of the Thediatheddam of each spouse and provided that one-halfof the Thediatheddam which belonged to the deceased spouse shall devolveon the surviving spouse and the other half on the heirs of the deceased. TheThediatheddam which belonged to the surviving spouse remained unaffectedby the death of the other spouse.”
166
SIVA SUPftAMANlAM, J.—Arunasatam v. Ayadurai
A.PPEAL from a judgment of the District Court, Point Pedro.
Chellappah, for the plaintiffs-appellants.
No appearance for the defendants-respondents.
Cur. adv. wilt.
January 19, 1967. Siva Supramaniam, J.—
This appeal raises the question of the rights of a husband governed bythe Thesawalamai in regard to immovable property purchased by him inhis favour during the subsistence of marriage out of monies raised by wayof loan jointly by both husband and wife.
The 1st plaintiff who is subject to the Thesawalamai married oneSivakolunthu in 1949. In 1957 he purchased in his favour on deed Pi2an undivided share out of the land which forms the subject of partitionin this case. The consideration for the purchase was obtained by the1st plaintiff and his wife Sivakolunthu raising a loan on bond P13 fromcertain third parties. Both spouses were jointly and severally liable onthe bond. As security for the loan the 1st plaintiff mortgaged the sharewhich he purchased on PI2 and the 2nd plaintiff mortgaged certain landswhich she had received by way of dowry at the time of her marriage.Sivakolunthu died in 1959, intestate and issueless, leaving behind as herheirs her father (the 8th defendant), two brothers (the 7th and 9thdefendants) and a sister (the 2nd plaintiff, who subsequently marriedthe 1st plaintiff).
The 7th, 8th and 9th defendants contend that since the loan out ofwhich the consideration for the purchase was paid was obtainedby mortgaging the dowry properties of the deceased Sivakolunthu, theconsideration should be regarded as the separate property of Sivakolunthuand the 1st plaintiff consequently held the share purchased by himon P12 in trust for Sivakolunthu and that on Sivakolunthu’s death thetitle devolved on the 7th, 8th and 9th defendants, to the exclusion of the1st and 2nd plaintiffs. This contention has been upheld by thelearned trial Judge.
In upholding the said contention the learned Judge has failed to takeinto consideration the following matters :—
That under the mortgage bond P13 the 1st plaintiff was himself a
co-obligor and the security given for the loan consisted not onlyof the dowry properties of Sivakolunthu but also of the landpurchased by the 1st plaintiff on P12 ;
That the mortgage debt was paid and settled subsequently by the
1st and 2nd plaintiffs ; and
That under s. 26 of the Jaffna Matrimonial Rights and Inheritance
Ordinance No. 1 of 1911 (hereinafter referred to as theOrdinance) the 2nd plaintiff was also an heir to the estateof her deceased sister.
SIVA SUPRAMANIAM, J.—Arunaaalam v. Ayadurai
167
Where a property is purchased during the subsistence of marriage by aspouse subject to the Thesawalamai out of a loan raised jointly by bothspouses, the property so acquired will fall under the category of Thedia-theddam and both spouses will be equally entitled thereto. The factthat the security granted for the loan is a mortgage of the separateproperty of either spouse will not render the loan so raised the separateproperty of that spouse. Nor will the property purchased become theseparate property of that spouse. If the property is purchased in the nameof one spouse only, that spouse will hold a half share of the property intrust for the other spouse. The learned Judge was therefore wrong inholding that the consideration for the purchase of the share on Pi 2 wasthe separate property of Sivakolunthu and that the 1st plaintiff held thewhole of the share in trust for Sivakolunthu. Only one-half of that sharewas Thediatheddam which belonged to Sivakolunthu.
The next matter for decision is the question of devolution of that halfshare on Sivakolunthu’s death. S. 20 (1) of the Ordinance, before it wasamended by Ordinance No. 58 of 1947, provided that “ the Thediatheddamof each spouse shall be property common to the two spouses, that is tosay, although it is acquired by either spouse and retained in his or hername, both shall be equally entitled thereto ”, and section 20(2) providedthat “.. one half of the joint property shall remain the property of thesurvivor and the other half shall vest in the heirs of the deceased.Ordinance No. 58 of 1947, however, effected a vital change when itrepealed the provision that Thediatheddam was property common to thetwo spouses and that on the death of either spouse one-half remainedwith the survivor and the other half vested in the heirs of the deceasedand introduced instead a new concept of the Thediatheddam of eachspouse and provided that one-half of the Thediatheddam which belongedto the deceased spouse shall devolve on the surviving spouse and theother half on the heirs of the deceased. The Thediatheddam whichbelonged to the surviving spouse remained unaffected by the death ofthe other spouse.
One-half of the half share of the extent bought on Pi2 which belongedto Sivakolunthu as her Thediatheddam therefore devolved on the 1stplaintiff while the ramaining half share devolved on her heirs. Unders. 23 of the Ordinance one-half of the remaining half share devolved onSivakolunthu’s father, the 8th defendant, and under s. 26 the balancehalf share devolved equally on the 2nd plaintiff and the 7th and 9thdefendants.
After Sivakolunthu’s death, the title to the extent of land purchasedby the 1st plaintiff on P12 was therefore as follows :—
1st plaintiff….3/4th share.
2nd plaintiff…. 1/24th share.
7th defendant…. 1/24th share.
8th defendant…. 1/8th share.
9th defendant…. 1/24th share.
168
SIVA SUPRAMANIAM, J.—Arunasalam v. Ayadurai
The learned Judge was wrong in holding that the 1st and 2nd plaintiffswere not entitled to any share of the extent purchased on PI2. By deedP18 the 4th plaintiff obtained valid title only to the shares to which the1st and 2nd plaintiffs were entitled out of the whole land.
I set aside the interlocutory decree entered in this case and directthat a fresh decree be entered on the footing of the devolution of titleset out above in respect of the extent of land purchased by the 1stplaintiff on P12.
The 7th, 8th and 9th defendants will pay the plaintiffs-appellants theirtaxed costs of contest in the lower Court as well as their costs in appeal.All other costs will be as already determined by the trial Judge.
AiiLES, J.—I agree.
Decree set aside and a fresh decree entered.