De Sampayo J.—
I have had the advantage of reading the judgment prepared bymy Lord the Chief Justice ; but as under the special circumstancesin which we are placed this case must be disposed of at least byMonday, I regre^that I am unable to deal .with all the mattei^discussed in that judgment. Nor is it necessary that I shouldso, because on the point involved in the case I have formed^adifferent opinion which is decisive of this appeal. The questionis whether under the Te&aioakmai a husband may not validlyalienate by way of donation any property acquired by him withoutthe concurrence of the wife. I may say at once that I agree withthe finding of the learned District Judge that the plaintiff, widowof Sangarapillai, whose act of donation is called in question, at the
( 11» )
time knew of the donation to their son Nagalingam, and acquiescedtherein. With regard to the law, as the free right of alienationis one of the essential elements of ownership of property, any speciallaw which is alleged to take that right away or materially restrictit must distinctly appear either in some enactment orin authoritativejudicial decisions. In my opinion there is no such support for theproposition maintained on behalf of the plaintiff. It is remarkablethat there is absolutely nothing on the point in the Tesawalamaiitself which is appealed to as the special law governing this matter.The only passage to he found in that collection is section 1, sub-section (1), which describes the different kinds of property broughtinto the marriage by the husband and wife, namely, mudusom orhereditary property brought in by the husband, chidenam or dowryproperty brought in by the wife, and thediathetam or acquisitionsof the husband or wife during the marriage. The sub-section nextdescribes the ultimate destination of the property, and states thaton the death of the spouses the mvdusom is inherited by the sonsor male heirs and the chidenam by the daughters or female heirs,and then it proceeds to state that “ the acquisition of thediathetamshould be divided among the sons and daughters alike.” TheTesawalamai, thus, does not deal with the question of the husband’sright of alienation, but only statesa rule of inheritance, and it seemsto me obvious that the inheritance can only be of the property thatremains at the death of the parent after any alienations madeduring life. As regards this, there is judicial authority, to whichI need not particularly refer, and it is, indeed, conceded by plaintiff’scounsel that the husband can validly alienate by way of sale ormortgage. Why, then, is any line drawn between such alienationsand donations? It was suggested by Mr. Arulanandan on thefirst day of the argument that the reason was that in the case ofsales and mortgages the money was brought back for the benefitof both spouses, whereas in the case of a donation there was no suchequivalent brought into the community. This suggestion is in-genious, but I am afraid it is plausible only. There is no indicationof such a ground cf distinction in the decisions recognizing thevalidity of sales and mortgages, and I do not think the reasoningis sound. So far, then, the Tesatoalamai Code itself does not helpthe plaintiff. As regards judicial authority, the sheet anchor ofthe plaintiff is Parasathy Ammal v. Setwputte.1 But I do not thinkthat this fifty-year old judgment is really an authority on the point.It was a case in which the husband had donated a piece of acquiredland to his concubine, and the judgment of Creasy C. J. dealt learnedlywith the Roman-Dutch law on the subject of donations ex turpicausa. I suspect that the judgment was reported so late as 1900on account of the valuable discussion of that important point.On the question of the right of the husband to dispose of the entirety
Da SahfayoJ.
Seelachchyv* Visuvana-ihan Chetty
1 (1872) S N. L. R. 271.
( 120 )
13b Sampato
v. Viauvana-than Chetty
of the land, all that we have is this single sentence : “ The decree ofthe Court below should be set aside and judgment entered for theplaintiff for half the land in question, inasmuch as by the Tamilcustomary law the donor could only dispose of half this property.”There is no reason given for so interpreting the customary law, noreference made to the Tesawalcmai or to any previous decision,and there is no discussion whatever of the subject. There was noappearance for the respondent, and we are left without any guidanceas to what argument of counsel for the appellant might have prevailedwith the Courts Nor oan I read the pronouncement as & definitedecision that the husband cannot donate, as distinguished fromselling or mortgaging, more than half of any acquired property.We are asked to read the judgment in that sense, because it saysthat the “ donor ” could only dispose of half the property. If so,this is a very cryptic way o£ deciding an important point of law.In my opinion the word “ donor ” in the context is not descriptiveof the act, but Only of the person whose act was in question; it wasas much as to say <c the person who gave the impeached donation.”The important expression in this connection is “ dispose of.” Itis not “ dispose of ” by way of donation, butc< dispose of ” generally.The opinion expressed is as consistent with a holding that a husbandcannot dispose of more than half in any way whatever, whetherby sale, mortgage, or gift, and it may well be that after all the ChiefJustice meant to go as far as that, though it is quite clear that heWas really interested only in the other question to which the wholejudgment was devoted, namely, as to a donation ex turpi coma.Assuming, however, that that case decides what is contendedfor, howfar is it a good authority ? It is said that it is a Full Court decision.We had the Supreme Court Minutes produced before us. It appearsthat the Chief Justice sat with two other Judges on that day. Butit does not at all appear that the Court was specially constituted forthe purpose of deciding that case or any other case. The list for theday was a long one, consisting of a large number of Police Courtappeals and of District Court final and interlocutory appeals. Thecase in question appears in the middle of the District Court cases, andthere is nothing to indicate that, it was specially considered by thethree Judges. It is more likely that the two Puisne Judges, not havingsufficient work to occupy them separately, sat with the Chief Justiceto assist him generally. Moreover, the Minutes do not showthat theyexpressed any opinion. There is only the draft judgment of theChief Justice, and there is nothing to indicate that the other Judgesagreed with it, or even signed or initialled it. I do not think that thejudgment in question has any greater authority than that of a singleJiidge, which, therefore, is open to review1. In my opinion a husbandmay, under the Tesawdta/mait make a donation of the entirety of anyacquired property just asmuebas admittedly he may sellormortgagethe same, and I would djflTnjaa this appeal on that short ground. Even
( 121 )
if he may not, I agree with the contention of Mr. Bawafor the respond-ent that the wife, if she is prejudiced by any donation of acquiredproperty by the husband, cannot seek to obtain asagainsta bona fidepurchaser from the donee a half share of the specific property, butcan only ask for half of the acquired property as a whole, or forcompensation from the husband’s representatives. In this casethe husband by will gave all his remaining property to his wife, theplaintiff, and I think she must be oontent with it.
Gabvust A.J.—
This is an action to vindicate title to a half share of certainpremises situated in Colombo. The plaintiff is the widow of oneSangaxapillai. Admittedly they were both subject to the Tew-wdlamai, and the premises in question were acquired by the husbandduring the subsistence of the marriage. SangarapiUai gifted thepremises by deed to his son Nagalingam, through whom the defend-ant makes title.
It is not disputed that under the Tesawalamai there is communitybetween spouses in all property acquired by either during thesubsistence of the marriage; nor is it disputed that the premisesunder litigation in this case were subject to that community.
Property so acquired, which as such becomes subject to community,is designated thediatheiam. What is the nature of this community ?Does title to property acquired by one of the spouses vest equally inthe other, as in the case of spouses subject to the communio bonorumof the Roman-Dutch law, or does the title remain in the spousewho acquired it, subject to the equitable right of the other spouseto take his share ? Under the latter system a formal conveyanceof immovable property to the wife will immediately, upon the execu-tion of the conveyance, vest the title in both spouses. It was suggest-ed that under the community known to the Tesawaiamai the spousesin relation to property subject to that community stood in exactlythe same position as the members of a commercial partnership.That is to say, that the title to property standing in the name ofone partner remained in that partner alone, though as regards theother members of the partnership his position was that of a trustee.For this proposition no authority was cited. Though I can findno local decision which explicitly declares the community subsistingbetween spouses subject to the Tesawalamai to be in this respectidentical with that known to the Roman-Dutch law, there areindications that that position was never doubted.
It is significant that in Ordinance No. 1 of 1911, “ which representsthe conclusions formed by a Committee specially appointed toinquire into the body of customary law known as the Tesawaiamai,the law is by section 22 declared as follows: * The th&diathetcmof each spouse shall be property common to the two spouses, that
Db SampayoJ.
Seelaehchyv. Vieuvana-than Chetiy
( 122 )
Seelachehyv. Vimtvana*than Chatty
is to say, although it is acquired by either spouse and retained inhis or her name, both shall be equally entitled thereto.’ ”
This is an explicit declaration of the law in the sense in which itwas, so far as I am able to judge, always understood.
If this view of the law be correct, these premises at the time ofacquisition by Sanagarapillai vested by operation of law equallyin his wife.
It remains, therefore, to consider whether in such a case as thisthe husband has the right to dispose of any property subject tothe community by gift.
Under the Roman-Dutch law as part of the marital powers com-mitted to the husband was the right to control and dispose ofproperty belonging to the community. It has been held by thisCourt that the husband may under the Tezawalamai dispose ofcommon property by way of sale. If he has not the power to do soby way of gift, the appellant is, I think, entitled to'contend that shehas not been legally divested of hsv title to a half share of thesepremises by her husband’s deed of gift. Express authority insupport of the appellant's contention is to be found in the case ofParasathy Ammal v. SetupvUe,1 where it was held in. an action bythe widow to vindicate her title to property donated by her husbandthat she was entitled to judgment for half the property, “ inasmuchas by the Tamil customary law the donor, could only dispose of halfthe property.”'^
For these reasons I think the appellant, who has not been legallydivested of her title to half these premises, is entitled to succeed.
I would accordingly allow the appeal, with costs.
H2872)ZN.L.B. 271.