NEW LAW REPORTS OP CEYLONVOLUME XXXVIII1936 Present: Macdonell C.J., Dalton S.P.J., Poyser and Koch JJ.
165—D. C. Colombo, 47,637.
Thesawalamai—Husband’s right to mortgage tediatetam property—Action onmortgage bond—Wife not a necessary party—Ordinance No. 1 of 1911,ss. 2, 21, 22—Mortgage Ordinance, No. 21 of 1927, s. 6 (1).
Under the Thesawalamai the husband has the same right to mortgageproperty which forms part of the tediatetam property, after the passingof Ordinance No. 1 of 1911 as he had before the Ordinance was enacted.The wife is not a necessary party to a hypothecary action against thehusband on a mortgage effected by him in respect of tediatetam property,in order to make her interest in the property bound by the decree.
HIS was a case referred to a Bench of four Judges on two points : —(1) Whether the Jaffna Matrimonial Rights and Inheritance
Ordinance, No. 1 of 1911, abrogated the power of a husband to deal withproperty falling within the definition of tediatetam, and (2) whether,assuming that the husband still has that power, it is necessary in ahypothecary action to enforce a mortgage granted by husband overtediatetam property, to make the wife a party in terms of section 6 (1) ofthe Mortgage Ordinance, No. 21 of 1927.
The plaintiff was married to one Sangarapillai after Ordinance No. 1of 1911. Both parties are Jaffna Tamils and are therefore subject tothe Ordinance. By deed No. 712 of February 27, 1929, Sangarapillai pur-chased in his own name the land in question in the action from its owner.For part of the consideration which was not paid Sangarapillai executeda mortgage bond over the property in favour of the vendor. Thevendor’s administrator put the bond in suit against Sangarapillai and inexecution the property was put up for sale and purchased by the defend-ants. The plaintiff claimed that one half of the property was vested inher under the thesawalamai and that her husband (Sangarapillai) couldby his mortgage bind only his half of the property. It was also arguedfor the plaintiff that as she was not party to the mortgage action she wasnot bound by the decree.
H. V. Perera (with him D. W. Fernando), for plaintiff, appellant.—The plaintiff and her husband who are Jaffna Tamils were married in1916. Therefore, the provisions of Ordinance No. 1 of 1911 and so muchof the Thesawalamai as that Ordinance has not abrogated applied to them.The first point arising in this case is whether under the system of lawwhich applies to the plaintiff and her husband, the latter had the power
1J. N. B 32999 (1/54)
Sangarapillai i>. Devaraja Mudaliyar.
to mortgage property falling within the definition of tediatetam. Thelaw as interpreted by pur Courts is that under the Thesawalamai thehusband has during the subsistence of the marriage the power to alienateand mortgage the tediatetam property quite apart from any consent ofthe wife. The question therefore is whether Ordinance No. 1 of 1911has expressly or by implication abrogated this power of the husband.The matrimonial rights of husband and wife in respect of all the propertybelonging to them or either of them are now governed by Ordinance No. 1of 1911 and any provision or custom of the Thesawalamai in force beforethis Ordinance inconsistent with the provisions of this Ordinance hasbeen repealed by section 2. Nowhere in this Ordinance is the powergiven to the husband to alienate or mortgage the entirety of the commonproperty. The effect of section 7 coupled with the definition of matri-monial rights in section 5 is to give the wife as full rights over her interestin the common property as section 8 gives her over her separate estatesubject however to the exception in section 22.
Even if the husband had the power to mortgage plaintiff was a necessaryparty to the mortgage action within the meaning of section 6 (1) ofOrdinance No. 21 of 1927. Every person is a necessary party who hasan interest in the mortgaged property to which the mortgage in suit haspriority. Priority in this section does not mean priority in time butpriority in interest. The plaintiff acquired an interest in the propertywhen it was bought but that interest was subject to the subsequentmortgage created thereon by the plaintiff’s husband. The plaintifftherefore was a necessary party and she, not having been made a party,is not bound by the decree.
Counsel cited Avitchy Chettiar v. Rasamma1, Kandar v. Sinnachipillai’,Fernando v. Silva ”, Amhalavanar v. Kurunathan
F. A. Hayley, K.C. (with him N. E. Weerasooria, N. Nadarajah, andB. H. Aluvihare), for defendants, respondents.—Ordinance No. 1 of 1911has not abrogated the power of the husband under the Thesawalamai toalienate and mortgage tediatetam property. This power is not incon-sistent with the provisions of the Ordinance and is therefore not repealedby section 2. If the argument of plaintiff’s Counsel is right then the 'Ordinance gives the wife a wider power of disposal over her share of thejoint property than over her separate property. The power of the hus-band under the Thesawalamai to deal with the joint property would seemto be practically the same as the marital power of administration underthe Common law before Ordinance No. 15 of 1876. It is an essentialfeature of community of property between spouses in almost all its formsthat the husband should be the manager of the common property(Seelaehchy v. Visuvanathan Chettys).
The interest of the wife in tediatetam property does not give her aseparate interest in one half. She only becomes entitled to one half onthe dissolution of marriage either by death or otherwise. It is. thereforenot necessary to join the wife in a mortgage action in respect of tediatetamproperty during the subsistence of marriage in order to get a. decree
1 35 N. L. B. 313.3 23 N. L. B. 249.
3 36 N. L. B. 362 at 367.* 15 Law Bee. 28.
6 23 X. L. B. 97.
MACDONELL C.J.—Sangarapillai v. Devaraja Mudaliyar.3
binding her interest. It would be otherwise if there is a dissolution ofthe marriage either by death or divorce. In such a case the heirs of thewife or the wife hereself as the case may be must be made a party defendant.
Counsel cited Parasathy Ammah v. Setupulle *, Seelachchy v. VisuvanathanChettyIya Mattayer v. Kanapathipillai ”.
H. V. Perera, in reply.Cur. adv. vult.
March 6, 1936. Macdonell C.J.—
This appeal came originally before Garvin and Maartensz JJ., andwas by them referred for decision by a Full Bench generally but withparticular reference to the points whether Ordinance No. 1 of 1911reduces or abrogates the power of a husband to deal with propertyfalling within the definition of tediatetam, and also whether, grantingthat the husband still has that power, it is necessary in a hypothecaryaction consequent on his having mortgaged the tediatetam property tojoin the wife as party to such action in consequence of section 6 (1) ofthe Mortgage Ordinance, No. 21 of 1927. The case was therefore arguedbefore a Full Bench both generally and with reference to these twopoints.
The facts in this case were these. The plaintiff was married to oneSangarapillai on May 17, 1916, that is to say, some years after OrdinanceNo. 1 of 1911 took effect. It is conceded that both parties to the marriageare Jaffna Tamils and that they are therefore subject to Ordinance No. 1of 1911, and likewise to so much of the Thesawalamai as that Ordinancehas not abrogated. By notarial deed No. 712 of February 27, 1929, thehusband Sangarapillai purchased in his own name the land in questionfrom its then owner, and the attestation clause to that deed says, “ Asconsideration a cheque for Rs. 18,000 in favour of the vendor was passedin my presence and the balance was secured by a mortgage bond executedthe same day ”. The total consideration for the land was Rs. 43,000and on the same day as the purchase the husband Sangarapillai didexecute a mortgage bond 478 for the balance Rs. 25,000 in favour of thevendor. This mortgage bond is referred to in the conveyance by whichSangarapillai, plaintiff’s husband, became owner of the land, and eachnotary attesting is a witness to the other deed, and the two documentsclearly refer to the same transaction and must be considered as consti-tuting one transaction ; the husband would not have got a conveyanceof the land unless he has executed the mortgage, and he would not havehad to execute the mortgage unless he had got a conveyance of the land.As the Rs. 25,000 was not paid, the vendor’s administrator (she havingdied) put the bond in suit against the mortgagor, the husband of theplaintiff. Decree was passed on August 7, 1931, for Rs. 25,850 and interest,the property to be sold by auction unless the amount of the decree waspaid within a named time, and, payment not having been made withinthat time, the property was put up for sale on October 7, 1931, at whichsale the defendants in the present action purchased it for Rs. 28,000.The plaintiff, wife of the mortgagor, went into possession of the landR. 271.* 23 N. L. B. 97.
* 29 N. L. R. 301.
MACDONELL C.J.—Sangarapillai v. Devaraja Mudaliyar.
shortly before the sale and issued, also before the sale, warnings bothverbal and printed to intending purchasers that she was entitled to a halfshare. The issue by her of these notices is not disputed.
The plaintiff’s case is that she and her husband, the mortgagor of thisland, being persons to whom Ordinance No. 1 of 1911 and the Thesa-walamai applied, one half of the property was vested in her, and that herhusband Sangarapillai could only by his mortgage bind his own half ofthe property, the remaining half of the property being hers, unaffectedby the mortgage. This was strenuously argued for her, she was entitledto a half and was under no obligation to repay the half or any portion ofthe mortgage money. As the husband could not have acquired theproperty at all without at the same time giving a mortgage over it, theargument that she could take her half and be under no obligation as tothe mortgage carries its own refutation on its face ; it is as clear a case ofattempting to approbate and reprobate as could well be imagined.
She also raised the point that as she had not been made a party to themortgage action brought by the original vendor she was not bound bythe decree in that action.
Before examining the law which admittedly binds these two persons,the plaintiff and her husband the mortgagor, namely, Ordinance No. 1of 1911 and the Thesawalamai, it is necessary to say that in the Courtbelow the learned Judge found, as a fact, that the Rs. 18,000 originallypaid for the land was money of the husband and not of the plaintiff, andthat “ the mortgage bond was executed by the husband with the consentof the plaintiff and probably with her knowledge ”. In spite of theambiguous word “ probably ”, this was taken as a finding that sheknew of and consented to the mortgage and was accepted as such in theargument before us.
If we examine the Thesawalamai in volume 1 of the Statutes, we findacquisition or tediatetam referred to therein as divisible among all thechildren of the marriage, section 1, paragraph 1, and as liable to debtscontracted by either party during the marriage, paragraph 10. As inter-preted by our Courts, the husband has during the subsistence of themarriage the power to alienate and mortgage the tediatetam property q^iteapart from any consent by the wife—see Mutukishna on the Thesa-walamai, case No. 5,242 at pp. 121 sqq. This is in accordance with theCommon Law, Grotius, Introduction, hk. I., c. 5 s. 21, “ In this Countrythe guardianship of the husband over the wife’s property is veryextensive section 22, “ By virtue of this guardianship the husbandappears for his wife in Court. He alienates and encumbers herproperty, even that which she has kept out of the community, at hispleasure and without requiring her consent and 1 Van Leeuwen, c. 6,s. 7, “ Everything so far as the wife is concerned must and can be doneby her husband who in law acts for his wife and encumbers and alienatesher property …. without first requiring her consent thereto ”.Our Courts seem always to have accepted this interpretation of thetediatetam, therein applying the Common law. But it is argued thatOrdinance No. 1 of 1911 has abrogated this power of the husband overthe tediatetam or acquired property of the marriage, and that the meaningof tediatetam as affecting spouses married after the taking effect of
MACDONELL C.J.—Sangarapillai v. Devaraja Mudaliyar.5
Ordinance No. 1 of 1911 must be found within the four corners of thatOrdinance,—see 35 N. L. R. 313 at p. 317. It is necessary then toexamine Ordinance No. 1 of 1911.
Section 2 of that Ordinance says, “ So much of the provisions of thecollection of customary law known as the Thesawalamai …. asare inconsistent with the provisions of this Ordinance are hereby repealed ”.Section 8 of that Ordinance establishes and defines the right of a wife toseparate property and gives her the power of “disposing of and dealingwith such property by any lawful act inter vivos without the consent ofthe husband in case of movables and with his written consent in thecase of immovables”, but from such separate property tediatetam isexpressly excluded by this same section 8'that creates it. Section 9similarly establishes and defines the separate property of the husband,again excluding tediatetam therefrom, and giving the husband full powerof disposing of and dealing with his separate property. As OrdinanceNo. 15 of 1876 had by section 8 abolished community of goods betweenhusband and wife married after that Ordinance took effect, for all inhabit-ants of the Island other than Kandyans, or Muhammadans, or Tamilssubject to the Thesawalamai, we can see that these sections of OrdinanceNo. 1 of 1911 were intended to give, but in a modified form, to a marriedwoman subject to the Thesawalamai a right to acquire during thecontinuance of the marriage separate property, though not so fully aswas enjoyed after 1876 by a married woman who came under the .pro-visions of Ordinance No. 15 of 1876. From this separate estate, then,Ordinance No. 1 of 1911 expressly excludes tediatetam. After definingin section 17 mudusam or property devolving on the death of an ancestor,and in section 18 urumai or property devolving on the death of a relative,and after defining in section 19 property derived from the father’s sideand in section 20 property derived from the mother’s side, the Ordinancegoes on in section 21 to enact as follows : “ The following property shallbe known as the tediatetam of any husband or wife ; (a) property acquiredfor valuable consideration by either husband or wife during the subsistenceof marriage, (b) profits arising during the subsistence of marriage fromthe property of any husband or wife ”, and in section 22 to say, “ Thetediatetam of each spouse shall be property common to the two spouses,that is to say, although it is acquired by either spouse and retained in hisor her name, both shall be equally entitled thereto. Subject to theprovisions of the Thesawalamai relating to liability to be applied forpayment or liquidation of debts contracted by the spouses or either ofthem ”—this is a reference to section 1, paragraph 10 of the Thesawalamai—“ on the death intestate of either spouse one-half of this joint propertyshall remain the property of the survivor and the other half shall vest inthe heirs of the deceased ; and on the dissolution of a marriage or aseparation a mensa et thoro each spouse shall take for his or her ownseparate use one-half of the joint property aforesaid ”. The words as toseparate use should be noticed. Apparently the Ordinance does notcontemplate a separate use by either spouse of the tediatetam during thecontinuance of the marriage. Prior to the enactment of that Ordinancethere clearly was no separate use in either spouse ; the “ use ” of theproperty was vested in the husband in accordance with the rules of the
MACDONELL C.J.—Sangarapillai v. Devaraja Mudaliyar.
Common law quoted above, and it would seem to follow that thisOrdinance No. 1 of 1911 has not made any alteration in the law in thatrespect. The Ordinance in section 11 gives the power to husband orwife to make gifts to each other, and adds, “All acquisitions made by ahusband or wife out of or by means of the moneys or property of the other,shall be subject to the debts and engagements of each spouse in the samemanner and to the same extent as if such …. gift ….or acquisition had not been made or had not occurred”. This section 11was necessary in view of the sections 8 and 9 empowering each spouse tohave a separate estate and was clearly enacted to prevent either spousemaking a gift of his or her separate estate so as to defraud his or hercreditors, and acquisitions are subject to the same restriction. It shouldbe noted that the part of section 11 quoted above, if read in conjunctionwith sections 17 to 20, is capable of giving to the word “ acquisition ”used in that section 11 a wider meaning than tediatetam, for the “ acqui-sition ” by husband or wife subjected thereby to debts might be anacquisition through madusam, paternal inheritance, or urumai, non-paternal inheritance, and not property acquired for valuable considerationduring the subsistence of the marriage, or “ profits arising during thesubsistence of marriage from the property of any husband or wife ”,section 21.
It was argued to us for the appellant in this case that the words insection 22 of Ordinance No. 1 of 1911 saying that tediatetam “ shall beproperty common to the two spouses ”, and that “ both shall be equallyentitled thereto ”, abrogated the interpretation which our Courtsapplying the Common law, have hitherto put upon tediatetam, namely,that the husband has the control and management of the tediatetam tothe extent of being able to alienate or mortgage the same without theconsent of the wife, and that, since the passing of that Ordinance No. 1of 1911, the wife has the power to mortgage and alienate the tediatetamor any portion thereof and that the husband’s power of doing so withoutthe consent of the wife is by implication repealed by that section 22 ofOrdinance No. 1 of 1911. The argument was put to us this way, thatalthough this tediatetam as defined by section 21 w'as common property,this did not mean that there was a “ community of goods ”. We do notthink that this contention is sound. To abrogate so clear a rule of theCommon law, or, if you prefer, so clear an interpretation which ourCourts have put on tediatetam, a clear enactment would be necessary andso far from it being clear from the words of Ordinance No. 1 of 1911 thatthis marital power has been excluded, several things in the Ordinanceseem to show that the legislators had this marital power, in their mindsand deliberately refrained from interfering with it. It is only her separateestate (section 8) which the wife can “ dispose of and deal with ”, andfrom that separate estate tediatetam is, by the words of section 8, excluded.That section 8 does give to the wife a separate use in her separate propertyduring the subsistence of the marriage but section 22 says that it is onlyafter the dissolution of the marriage that the wife’s separate use of thetediatetam or any portion thereof can arise.
If these considerations are correct, they will dispose of the first groundon which this case was referred to a full Bench ; in the case of spouses
MACDONELL C.J.—Sangarapillai v. Devaraja Mudaliyar.7
governed by the Thesawalamai the husband has the right to mortgage andto sell property which forms part of the tediatetam now, after the passingof Ordinance No. 1 of 1911, as he had before that Ordinance was enacted.
It only remains to examine the further point, namely, whether the wife,the plaintiff in this case, being a person to whom Ordinance No. 1 of 1911and the Thesawalamai apply, was a necessary party to the mortgageaction—decree in which passed on August 7, 1931—by virtue of section 6(1) of the Mortgage Ordinance, No. 21 of 1927. Now to answer thisquestion it is necessary to consider what is the nature of the right totediatetam property which accrues to the wife when any particular pieceof property becomes tediatetam by acquisition for valuable considerationor as arising during the subsistence of the .marriage, section 21. Thelegal title to that property seems to be in the husband, though by opera-tion of law the wife likewise acquires a title thereto. When the husbanddies or the marriage is dissolved, the wife takes her half share by virtueof her previous position as a married woman but she has no power ofmortgaging, still less of alienating, that tediatetam property. For thosepurposes the husband is the persona to whom alone the law looks. Heis, if we care to put it that way, the sole and irremovable attorney of hiswife with regard to alienations of that property by sale or mortgage. Ifthat is so, then for purposes of such alienation the wife’s persona ismerged in that of the husband and there can be no requirement that sheshould be joined as a party to any mortgage action (section 6 (1) ofOrdinance No. 21 of 1927), because she cannot on any correct analysisbe described as a “ party separate from her husband When a husbandsells or mortgages part of the tediatetam property he does so as acting forand with his wife, and the question of her being a “ party ” to suchtransaction does not, it would seem, arise.
In view of the dissenting judgment of Garvin J. in Seelachy v. Visuva-nathan Chetty1 at p. 121, and of the decision of Dalton J. in Mattayar v.KanapathipillaiI would guard myself against saying anything as to whatmay happen if a husband attempts to alienate by gift more than half ofthe property acquired during marriage ; at Common law such alienation bygift would be good unless fraudulent or with intent to injure his wife ; seeLee, 3rd ed., p. 64 and 1 Van Leeuwen, c. 6, s. 7. That question does notarise in the present appeal and can be left until it does arise withoutany expression of opinion.
If the above considerations hold good, namely, that the husband of amarriage subject to the Thesawalamai and to Ordinance No. 1 of 1911 isthe manager of the tediatetam property, with power to alienate the sameby sale or mortgage without consent of the wife now as before the passingof Ordinance No. 1 of 1911, then it will follow that the husband canvalidly execute a mortgage over this land without joining the wife asparty to that mortgage, and that the mortgagee was under no necessityto make the wife, the plaintiff, party to his action on the bond.
These considerations, then, will dispose of the present appeal and itwill be unnecessary to consider the. other points that were raised to us,particularly as to whether the wife, the plaintiff, was or was not estoppedby her conduct from disputing the sale following on the mortgage decree.
1 23 N. L. R. 97.» J9 N. L. R. 304.
8DALTON S.P.J.—Sangarapillai v. Devaraja Mudaliyar.
For the foregoing reasons I am of opinion that this appeal must bedismissed with costs and that the judgment below must be affirmed.
Dalton S.P.J.—
This appeal has been referred to a Bench of four Judges to be heard.The plaintiff, who is the appellant, instituted the action for a declarationof title to one-half share of a property, known as 41, Lauries road,Colombo. The defendants (respondents) had purchased the wholeproperty at a sale in execution against the plaintiff’s husband, W. San-garapillai, and had obtained a conveyance thereof.
The material facts are shortly as follows : —The whole of the propertyin question formerly, belonged to one Mrs. Silva. On February 27, 1929,she sold and conveyed (deed P 17) the property to W Sangarapillai,described as of Wellawatta, Colombo, for the sum of Rs. 43,000. Theattestation by the notary states that a cheque for Rs. 18,000 was passedin his presence, and the balance (Rs. 25,000) was secured by a mortgagebond executed the same day. The same day, a bond (D 3) was executedby Sangarapillai in favour of Mrs. Silva over the property purchasedfrom her by him, to secure the sum of Rs. 25,000.
Mrs. Silva died, and the bond was put in suit by her administratoragainst the mortgagor, Sangarapillai. A decree was entered against himin the sum of Rs. 25,850 on August 7, 1931, and the property was put upfor sale, under an order of the Court, on October 7, 1931, and purchasedby the defendants for the sum of Rs. 28,000 and the property was con-veyed to them. The plaintiff had at the time of the sale notified thedefendants that she claimed to be entitled to half the property, the trialJudge finding that she had got into possession of the premises a few daysbefore the sale with the intention of asserting title to a one-half share ofthe property.
The plaintiff and her husband Sangarapillai have been found by thelearned trial Judge to be Jaffna Tamils, the balance of the evidence, hestates, being in their favour on this question, and so are govered by theThesawalamai. They were married in the year 1916 at Jaffna, but sincethen have lived almost continuously in Colombo, where the husbandcarries on business apparently as a dealer and speculator in real estate.The trial Judge states that the evidence clearly proves that the plaintiffalways acquiesced in her husband’s management of all the property,tediatetam as well as her dowry property ; that she allowed him to selland purchase property exactly as he pleased, that the plaintiff was neverconsulted about these matters, and that he did not even discuss questionsof sale and purchase with her. He holds further that the property inquestion was purchased with the husband’s money and that the mortgageto Mrs. Silva was executed by the husband with the general consent ofthe plaintiff, and probably with her knowledge of the specific transaction,allowing him to mortgage the property and not bringing to the notice ofthe mortgagee that she herself was entitled to a share in the property.For this and other reasons her action was dismissed.
The plaintiff and her husband being Jaffna Tamils, and that findingnot being questioned, the property acquired from Mrs. Silva by thehusband on February 27, 1929, was tediatetam property, within the
DALTON S.P.J.—Sangarapillai v. Devaraja Mitdaliyar.9
meaning of section 21 of Ordinance No. 1 of 1911 (the Jaffna MatrimonialRights and Inheritance Ordinance). There is no dispute now that theproperty was tediatetam.
The first matter for decision on the appeal is as to the powers of ahusband in respect of tediatetam. It is urged for the appellant (plaintiff)that the matrimonial rights of husband and wife in respect of all propertybelonging to them or either of them are now governed by the provisionsof Ordinance No. 1 of 1911, and that any provision or custom of theThesawalamai in force before that Ordinance inconsistent with theprovisions of that Ordinance has been repealed by section 2 of theOrdinance.
There is no question that prior to Ordinance No. 1 of 1911 the husbandwas the manager of the common property, with full power in himself tosell and mortgage it without the consent of his wife. This power wouldseem to be practically the same as the marital power of administrationunder the Common law, before Ordinance No. 15 of 1876 was enacted.That matter has been fully dealt with by Bertram C.J. in Seelachchy v.Visuvanathan Chetty and Mr. Perera for the appellant does not questionit. Bertram C.J. points out that it is an essential feature of communityof property between spouses in almost all its forms that the husbandshould be the manager of the common property.
Ordinance No. 1 of 1911 did not abolish that common property butdefined what tediatetam thereafter meant (section 21), with the resultthat there has been some change in the property that comes under thisname (see decision in Avitchy Chettiar v. Rasamma2 and in Kandar v.Sinnachipillai*). The first part of section 22 then states that tediatetamshall be the common property of the two spouses, hoth being equallyentitled to it. There appears to be no change from the old law in thatstatement, and apparently it is a restatement of the Thesawalamai in thenew Ordinance, prefacing what follows, since the section goes on to dealwith the devolution of tediatetam. Possibly, as has been stated on morethan one occasion in cases that have arisen under it, the Ordinance is notaltogether a good example of skilful draughtsmanship. That may wellbe due to the fact that it deals with customary law, and is an attempt toimprove upon and amend in some respects the collection of customarylaw in the Thesawalamai, which is itself somewhat vague and indefinitein various respects.
Earlier in the Ordinance is provided what is to be considered theseparate property of the husband and wife respectively. As regardsthe wife’s separate property, section 8 enacts that it shall not be liablefor the debts and engagements of her husband unless incurred in theupkeep, management or improvement of such property, and that sheshall have full power of disposing of and dealing with it, save that in thecase of immovable property, and act inter vivos must be with his consent.This section specifically excepts tediatetam as defined in the Ordinancefrom its provisions. Who is to have the management and control ofthe common property ? Prior to the Ordinance the husband had suchpowers, including the right of selling or mortgaging it.: There is certainlyno such power given to the wife in this Ordinance.
1 23 N. L. R. 97.* 35 N. L. R. 313.3 36 N. L. R. 362 at p. 367.
10DALTON S.P.J.—Sangarapillai v. Devaraja Mudaliyai.
The reply to this question, counsel for the appellant states, is suppliedby the provisions of section 7, which enacts that the respective matri-monial rights of every' husband and wife married after the commencementof the Ordinance, in, to, or in respect of movable or immovable propertyshall during the subsistence of the marriage be governed by the provisionsof the Ordinance. However, section 7 must be construed subject to theprovisions of the following sections, and having in mind the provisionsof section 2 also. As I understood the argument, Mr. Perera urged thatthe effect of section 7, coupled with the definition of matrimonial rightsin section 5. is to give the wife as full rights over her interest in thecommon property as section 8 gives her over her separate estate, subjectof course tc the exception provided for in section 22. If he is correct,the effect of it would be in some respects to give a wife fuller rights overher interest in the tediatetam, since there is no provision requiring herhusband’s consent to its disposal by her as is in force in regard to herseparate property, if immovable property. I cannot agree with hisargument. If it had been the intention of the legislature, nothing wouldhave been easier than to have said so. Tediatetam is expressly excludedfrom section 8, and the Ordinance is silent on the subject of the husband’sadmitted rights over tediatetam prior to 1911. The exclusion of tediatetamin section 9 does not affect this aspect of the case.
Coming now to the provisions of section 2 of the Ordinance, I can findnothing in the Ordinance inconsistent with the law in force prior to theOrdinance, so far as it gave the husband full management and control ofthe tediatetam, including power to sell and mortgage it. Ordinances-which take away rights either as regards persons or property must bestrictly construed. It is presumed that the legislature does not desireto encroach upon the rights of persons, and if such is its intention, it willbe manifestly plain, if not in express words, at least by clear implicationand beyond reasonable doubt (Maxwell on Interpretation of Statutes,p. 427). There is certainly, in my opinion, no such implication here.As I have stated, I can find nothing in the Ordinance inconsistent withan intention to retain in force the rights of the husband over the commonproperty. I can find nothing in section 11 or section 22 inconsistentwith this view. The first portion of section 22, to which I have alreadyreferred, and the reference to the provisions of the Thesawalamai relatingto the liability of the common property (I supply the latter words Ihope correctly, as they are apparently omitted from the section) to beaoplied to pay debts of either spouse on the death intestate of eitherclearly show that the whole law is to be found in this Ordinance, andnot elsewhere, otherwise so long as both spouses remained alive or diedintestate, no such liability would apparently arise, apart from the extentto which it is there mentioned. Counsel for the plaintiff does not suggest,however, that this liability exists only in the case of the death intestateof either spouse. This liability of the common property for the debtsof both spouses is referred to in one of its aspects in section 22, and it ismentioned nowhere else in the Ordinance. It is, however, to be foundin the law in force prior to the Ordinance, and not being inconsis-tent with the provisions of the Ordinance, it also remains in forceto-day.
DALTON S.P.J.—Sangarapillai v. Devaraja Mudaliyar.
I fwould therefore hold that the husband of the plaintiff had full powerhnd authority to execute the bond D 3 to Mrs. Silva over the whole of theproperty purchased on the deed P17.
The further question remains to be decided, whether, the husbandhaving the right to mortgage the whole of the property as he did, theplaintiff was a necessary party to the mortgage action within the meaningof section 6 (1) of the Mortgage Ordinance, No. 21 of 1927. That sectionprovides that every person is a necessary party to a hypothecary actionwho has any mortgage on, or interest in, the mortgaged property, towhich the mortgage in suit has priority. The purport of this requirement,having regard to the other provisions of section 6 (3) and of section 10,is to make the decree in the mortgage action binding upon persons whohave any interest in the mortgaged property to which the mortgage haspriority.
What is the interest of either spouse in the common property duringthe subsistence of the marriage ? The community begins at the time ofthe marriage, or in the case of common property acquired during themarriage, at the time of acquisition, and continues until the dissolutionof the marriage, either by death or otherwise. Community does notmean that each spouse has a separate interest in one-half of the commonproperty. If it was so, it would not be common property. The wholeof the property is common property between the two with powers ofmanagement and control in the husband, so long as the communitycontinues. The cases which have been cited deal with claims arising onthe death of a spouse at a time when the community had terminated.Parasatty Ammah v. Setupulle 1 was a claim by a widow on behalf of herselfand her children in respect of tediatetam property donated by her husbandduring his lifetime. Seelachchy v. Visuvanathan Chetty (supra) was a similarclaim by a widow, decided by a majority of the Court, Bertram C.J. andde Sampayo J. in favour of the defendant, but as I have pointed out inlya Mattayer v. Kanapathipillai not on the same grounds. In the last-mentioned case the plaintiffs were the heirs of the wife, who brought theaction for declaration of title to certain land which had been the commonproperty of the spouses.
Having regard to the powers of the husband in respect of the commonproperty of the spouses to mortgage the whole of the property, the wifeis not a necessary party to the action to make her interest in it bound bythe decree of the Court in a suit on the mortgage bond. This seems tome a necessary inference or deduction from his power to mortgage thewhole of the property. It is possible that other considerations mightarise in cases where the community had come to an end before the actionwas brought or in the course of the action, but whether they would ornot it is not necessary here to decide. In the circumstances of the casebefore us the plaintiff’s interest in the common property was fullyrepresented in the action by her husband as controller and manager ofthe common property of the two with power to mortgage, and she was nota necessary party to the action, if by that is meant she should be a party,separate and distinct from her husband, to make her bound by thedecree. It might well be that, in respect of the common property, she»3 N.L. B. 271.■*29 N. L. R. 301.
SOERTSZ A.J.—Soysa v. James Singho.
could not be a party at all, having regard to her personal status andcapacity, so far as the common property is concerned, since the provisionsof the Married Women’s Property Ordinance do not apply to Tamils ofthe Northern Province who are subject to the Thesawalamai, but for thepurpose of this case it is not necessary to go so far as that. On thisground also, for the reasons I have given, this appeal must, in my
opinion, fail.
I would therefore dismiss the appeal with costs.
Poyser J.—I agree.
Koch J.—I agree.
Appeal dismissed.