Sachchiihananthan v. Sivaguru.
1949Present: Nagallngam and Windham JJ.SACHCBITHANANTHAN, Appellant, and SIVAGURU,Respondent
S. C. 445—D. C. Point Pedro, 2,935
Thesavalam-ai—Property purchased by urife—Marriage after Jaffna Matri-monial Rights Ordinance—Thediatetam—ICffect of amending Ordinance—Retrospective—Ordinance No. 58 of 1947.
Ordinance No. 58 of 1947 amending the Jaffna Matrimonial Rightsand Inheritance Ordinance is retrospective in its operation.
1 47 N. L. R. 393.» (1888) 10 Allahabad 166.
e 48 N. L. R. 110.* Section 75 of the Courts Ordinance.
1»J. N. A 88962 (5/49)
NAGALINGAM J.—Sachchithananthan v. Sivaguru
^.PPEAL< from a judgment of the District Judge, Point Pedro.
H. W. Tambiah, with S. Sharvananda, for plaintiff appellant.
C. Thiagalingam, with V. Arulambalam, for defendant respondent.
Cur. adv. vult.
April 12, 1949. Nagalingam J.—
This appeal involves a point of some importance in the law of inheritancerelating to persons governed by the Jaffna Matrimonial Rights andInheritance Ordinance. I shall adopt the facts, so far as they arematerial, for the purpose of the present appeal, as ascertained by thelearned District Judge, the correctness of which findings has not beendisputed at the argument.
Two persons, SivakamipiUai and Manickam, were at one time the co-owners of the entirety of the land sought to be partitioned in this case.By deed P6 of July, 1937, these two persons conveyed the land to oneAththal subject to the condition that the vendee should reconvey thepremises to the vendors on payment of the consideration with the intereststipulated therein within a period of three years from the date of theexecution of the deed. By deed P7 of October, 1937, Aththal re-trans-ferred the entirety of the land to Sivakamipillai, who was one of thevendors to her. Sivakamipillai died intestate, leaving her surviving herhusband Periyathamby and three children, the plaintiff and the twodefendants. The husband by deed P8 of 1945 purported to convey to theplaintiff a half-share of the land.
The defendants contend that the deed P8 was inoperative to convey anytitle to the plaintiff. The case for the plaintiff is that as Sivakamipillaiwas married subsequently to 1911, that is to say, after the coming intooperation of the Jaffna Matrimonial Rights and Inheritance Ordinance,the purchase by her of the property from Aththal by deed P7 of October,1937, fell into the category of property known as Thediatetam within themeaning of section 19 of the Ordinance, as it stood prior to its amendmentby the Jaffna Matrimonial Rights and Inheritance (Amendment) Ordi-nance, No. 58 of 1947. The defendants on the other hand assert thatas a result of the new section that was substituted by the amendingOrdinance in place of the earlier section 19, if it can be shown thatSivakamipillai purchased the land with her separate property then theproperty ceases to be Thediatetam within tjie meaning of the new sectionand that no rights vested in the husband so as to make the deed P8effective. The learned Judge has found as a fact that the considerationprovided by Sivakamipillai for the purchase of the land by deed P7was in fact her separate property.
Counsel on each side concedes that the interpretation placed byopposing Counsel on the earlier and later sections numbered 19 wouldsupport the devolution of title contended for by the respective parties.The question on which they are at issue, however, is whether the amendingsection which was proclaimed law on July 4, 1947, subsequent to the dateof Sivakamipillai’s death, has application to the question of thedistribution of her estate.
NAGALINGAM J.—Sachchithananthan v. Sivaguru
Mr. Sharvananda for the plaintiff appellant argues that no statuteshould be construed to have a retrospective operation and that theamending Ordinance cannot be construed so as to give to the new sectionwhich replaces the old the same effect as if it had been originally enactedin the principal Ordinance itself but that the effective operation of thenew section must be deemed to date from the date when it became law.In support of his contention he relied upon the following authorities :—
The Privy Council case of Ponnammah v. Armugam1 where, indelivering the judgment of the Board, Lord Davey made the followingobservation
“ It is unnecessary therefore to discuss the question whether intentionis sufficiently shown to take this case out of the well knownrule on the construction of statutes that the rights of partiesmust be decided according to the law as it existed when theaction was commenced.”
The case of Colonial Sugar Trading Co. v. Irwin 2, also a PrivyCouncil ease, where Lord McNaughten expressed himself in thesewords :
“ In either case there is an interference with existing rights contraryto the well known general principle that statutes are not to beheld to act retrospectively unless the clear intention to thateffect is manifested.”
The Divisional Bench case of Guneralnev. Appuhamy 3 where theabove passage from Lord McNaughten’s judgment was cited byLascelles A.C.J. who held that the Ordinance No. 12 of 1894, whichamended section 547 of the Civil Procedure Code, had no retrospectiveeffect.
Maxwell4 who states the principle as follows :—
” They (Statutes) are construed as operating only in cases or onfacts which come into existence after the Statutes werepassed unless a retrospective effect be clearly intended. Itis a fundamental rule, of English Law that no Statute shallbe construed to have retrospective operation unless such aconstruction appears very clearly in the terms of the Act orarises by necessary and distinct implication.”
It will be seen that every one of the authorities cited contains a quali-fication of the proposition as stated by Mr. Sharvananda and thatis that a retrospective effect may have to be given to a Statute if such anintention can be clearly gathered from its terms.
Mr. Thiagalingam contends that the intention of the Legislature togive the amending Ordinance a retrospective effect is clearly expressed"by the enactment of section 7 of the amending Ordinance. This sectionexpressly states that the amendments made by the amending Ordinanceshall not be deemed to affect the mutual rights of the parties in the case
3 (1905) 8 N. L. R. 223.» (1906) 9 N. L. R. 90.
* 74 L. J. P. C. 77.4 Interpretation of Statutes 9th ed. p. 221.
NAGAL1NGAM J.—Sachchitkanan than v. Sivaguru
of Avichy Chettiar v. Rasamma1 or in any other ease decided in accordancewith that decision at any time prior to the date on which the amendingOrdinance comes into operation. If the operation of the amendingOrdinance was to be only prospective, one cannot very well see the needfor enacting this section, for the rights of parties would be governed bythe law as it stood anterior to the amending Ordinance and what that lawwas was clearly and expressly set out in the aforesaid Divisional Benchcase of Avichy Chettiar v. JRasamma.
Mr. Sharvananda urges that as a consequence by this amendmentnot only would the rights of parties to the case of Avichy Chettiar v.JRasamma not be affected but those of all other persons, whether theirrights had been adjudicated upon or not, but that the Legislature hadex abundanti cautela enacted this provision and that this provision wasreally unnecessary. It is difficult to assent to this proposition. Wherein construing a provision of a Statute two constructions are possible, onegiving some effect to it and the other resulting in no effect being givento it, it is a sound canon of construction that that construction should beupheld which gives some effect to the provision. That by enactingthis section the Legislature has clearly revealed its mind that the amendingOrdinance was to be retrospective in its operation is the only viewtherefore possible.
Mr. Sharvananda also put forward a second line of argument basedupon the fact that the amending Ordinance specifically repealed the oldsection 19 in express words and that by virtue of section 6 (3) (6) of theInterpretation Ordinance such repeal did not affect the right acquiredby the husband who had married Sivakamipillai when the repealedsection was in operation and of treating the property acquired by Siva-kamipillai in the circumstances set out above as Thediatetam as definedin the old section. To hold the contrary, he said, would result in positiveinjustice being done to the husband, which the Legislature could not haveintended and which it had striven to prevent by expressly enactingsection 6 (3) (d) of the Interpretation Ordinance to meet such a situation ;and he further argued that where a repeal is intended to affect rightsalready vested there must be, as provided in section 6 (3), an expressprovision to that effect, and referred to the provision in the MortgageOrdinance, Cap. 74, where in section 17 (3) the Legislature took pains tosay that the particular chapter of the Ordinance applied to mortgagesand transfers of land whether created, executed or arising before or afterthe commencement of the Ordinance, words corresponding to whichhave not been inserted by the Legislature in the amending Ordinance.
I think there is great force in this argument because, though someimplied provision may be inferred from the terms of section 7 of theamending Ordinance, no express provision is to be found therein wherebyit could be said that any rights that had accrued were intended to beaffected. To uphold this contention, however, would be to ignore theclearly expressed intention of the Legislature that it intended to alter thelaw as expressed in the case of Avichy Chettiar v. JRasamma (supra). ButI do not think that section 6 of the Interpretation Ordinance can be said
1 (1933) 35 N. L. R. 313.
WINDHAM J.—Ekanayaka v. Prince of Wales Co-op. Society, Ltd. 297
to make inroads into the well understood canon of construing StatuteLaw that where the dominant intention in enacting a Statute is clear, thefact that the construction based on such intention takes away vestedrights is no ground for construing the Statute in a different sense, althoughthe consequences may appear unjust and harsh. In Barber v. Pigden1the Law Reform (Married Women and Tort Feasors) Act, 1935, wasconstrued as putting an end to the liability of a husband for his wife’storts committed prior to the passing of the Act and thereby depriving aparty against whom the tort had been committed from pursuing theundoubted right he had prior to the passing of the Act of holding thehusband liable.
For these reasons I am of opinion that the amending Ordinance isretrospective in its operation and that the judgment of the learnedDistrict Judge is right. The appeal therefore fails and is dismissed withcosts.
Windham J.—I agree.
SACHCHITHANATHAN, Appellant, and SIVAGURU, Repondnet