030-NLR-NLR-V-39-SEETHANGANIAMMAL-v.-ELIYAPERUMAL.pdf
FERNANDO AJ.—Seethanganiammal v. Eliyaperumal.
1936Present: Moseley J. and Fernando A.J.
SEETHANGANIAMMAL v. ELIYAPERUMAL.
185—D. C. Jaffna, 6,739.
Thediathetam—Gratuity paid to public servant—Not acquired property—Thesawalamai Ordinance, No. 1 of 1911, s. 21.
The gratuity paid to a public servant on retirement from service is notthediathetam property within the meaning of section 21 of OrdinanceNo. 1 of 1911.
Avitchy Chettiar v. Rasamma (35 N. L. R. 313) and Thamotheram. v.Nagalingam (31 N. L. R. 257) referred to.
^^PPEAL from a judgment of the District Judge of Jaffna.
N. Nadarajah (with him Kumarasingham), for plaintiff, appellant.
N. E. Weerasooria (with him T. S. Fernando), for defendant, respondent.
Cur. adv. vult.
October 26, 1936. Fernando A.J.—
The plaintiff-appellant sued the defendant-respondent for a divorceand a decree nisi was entered in her favour in D. C. Jaffna, 1,416, onFebruary 13, 1934. That decree also provided for alimony to be paidby the respondent, and presumably the order for alimony was based onthe salary that was then drawn by the defendant who was in the serviceof the District Road Committee of Mullaittivu. On April 1, 1934, thedefendant retired from Government service, and on February 16, 1934,he drew a sum of Rs. 1,060 which admittedly was paid to him as a gratuityon his retirement. On September 3, 1934, the plaintiff filed this actionclaiming half the gratuity as her share of the defendant’s acquiredproperty, and in the plaint she stated that in the divorce action, a divisionof the acquired property was ordered as between the plaintiff and thedefendant whose rights with regard to property are governed by the
Thesawalamai.
1 36 N. L. R. 326.
* 13 C. L. Rec. 238.
87
FERNANDO A.J.—Seethanganiammal v. Eliyaperumal.
When the case came up for trial in the District Court, no evidencewas led, but certain admissions were made, and on these admissions, thelearned District Judge dismissed the plaintiffs action with costs, and hemade that order on the footing that the plaintiff admittedly could notclaim a half share of the salary earned by the defendant between thedate of action and the date of decree, and that for the same reason, theplaintiff was not entitled to claim a half share of the gratuity which wasgiven in lieu of the salary which the defendant might have earned if hehad continued in service.
The learned District Judge appears to have thought that in the caseof Thamotheram v. Nagalingam1 Drieberg J. held that the salary of thehusband was acquired property within the meaning of section 21 ofOrdinance No. 1 of 1911. An examination of that judgment, however, willshow that although Drieberg J. was of opinion that money which a manhad saved from professional earnings which he has set aside or invested,and which is not needed for his ordinary expenditure, could be regardedas acquisitions or as acquired property, he proceeded to say that he didnot think that these expressions were applicable to the salary of theappellant in that case. I do not think that this judgment in any waydisturbs the principles definitely laid down by a Bench of three Judgesof whom Drieberg J. was one, in the case of Avitchy Chettiar v. RasammaGarvin A.C.J. who delivered the judgment in that case in which both theother Judges concurred said, “ The question before us must be settled byinterpretation of the language of the legislature ”, and he referred to thatportion of section 21 which is the provision under which the appellantclaims a half share of the gratuity. “ The words of that section are asfollows : —‘ Property acquired for valuable consideration by a husbandor wife during the subsistence of the marriage.’ ” “ If regard be paid tothe scheme and purposes of the Ordinance, it seems to me that it hasprovided a definition (of thediathetam) in section 21, and- it has doneso not only for the purposes of inheritance, but generally for the purposesof the Ordinance. ” He held that in the case before him, the premiseswere acquired for valuable consideration during the subsistence of themarriage, and therefore fell within the definition of thediathetam.
The property in question in this case is admittedly a gratuity in moneypaid to the defendant on his retirement from service and it is impossibleto hold that this gratuity is property acquired for valuable consideration.As Counsel for the respondent submitted the words “ for valuable con-sideration ” must be interpreted as they would be under the Englishlaw, and even if it can be argued that this gratuity is something paidto the defendant for his past services, then they would not be paid tohim for valuable consideration. But it is impossible in my opinion tobring salary as such within the definition contained in section 21 and allthat the Supreme Court held in Thamotheram v. Nagalingam (supra) wasthat an investment of money saved from professional earnings might beregarded as acquired property. I would, therefore, hold that the gratuityin question is not thediathetam within the meaning of section 21 ofOrdinance No. 1 of 1911.
39/11
1 31 X. L. R. 257.
* 35 X. L. R. 313.
88
SOERTSZ J.—De Silva v. Don Carolis & Sons, Ltd.
In view of this position, it is not necessary to discuss the other question,namely, whether plaintiff can still claim this property in view of theorder made in the divorce action. The order made in that case is notin fact before us, although the proceedings of April 3, 1935, appear toindicate that the plaint and decree in that action were in fact produced,but they are not in the record in this case.
The appeal, therefore, fails and must be dismissed with costs.
Moseley J.—I agree.
Appeal dismissed.