SENADIPATHY v. SENADIPATHY

069-NLR-NLR-V-43-SENADIPATHY-v.-SENADIPATHY.pdf


272
Senadipathy v. Senadipathy.
1942Present r Soertsz, Hearne and Wijeyewardene JJ.
SENADIPATHY v. SENADIPATHY.104—D. C. (Irity.) Colombo, 477.
Stamp duty—Matrimonial action—Action for divorce by wife—Counter-clain
by husband—Damages against co-respondent—Class of case—Amount
of damages—Stamp Ordinance (Cap. 189), Schedule F. (Miscellaneous),
item (I).
In an action for dissolution of marriage brought by the wife againsther husband, the latter himself claimed a divorce from the plaintiff onthe ground of her adultery with the co-defendant from whom heclaimed the sum of Rs. 10,000 as damages. The defendant furtherclaimed a sum of Rs. 7,073 on three separate causes of action, viz.: —
a sum of Rs. 2,640, which he alleged was the plaintiffs share of
the expenditure incurred by him in improving a common
land ;
a sum of Rs. 1,933 on account of articles belonging to him which
were damaged by _her ;
a sum of Rs. 2,500, the value of rubber coupons appropriated by
her without his consent.
Held (by Soertsz and Hearne JJ., Wijeyewardene J. dissenting),that the last named causes of action cannot be introduced into amatrimonial action instituted under Chapter 42 of the Civil ProcedureCode.
Section 36 of the Civil Procedure Code is excluded by necessaryimplication and does not apply to matrimonial actions.
Held, further, that the class of case for purposes of Stamp Duty onmatrimonial actions must be determined by item (l) of Schedule F.according to which it is fixed by the amount of damages claimed by thedefendant, viz., Rs. 10,000.
[Per Wijeyewardene J.—That the separate causes of action could beproperly joined in a matrimonial- action and that item (l) in the Scheduledoes not override the general principle that the stamp duty should beassessed on the aggregate value of the various claims, even if such claimshave been wrongly joined.]
L. A. Rajapakse (with him P. A. Senaratne), for the plaintiff, respondent,took preliminary objection.—Class 5, and not class 4, of Part 2 ofSchedule A of the Stamp Ordinance (Cap. 189) governs this case. Theappellant furnished stamps on the basis that the proceedings fell underclass 4. The tendering of additional stamps subsequently would notcure the irregularity—Balasubramaniam v. Valliappar Chettiar *.
Where, in an action, the defendant sets up a claim in reconvention,the stamp duty leviable is calculated upon the value of the claim inreconvention if it is larger than the claim made in the plaint—Vellasamy-pulle v. The Uplands Tea Estates of Ceylon, Ltd.'. And the value of theclaim in reconvention would be the aggregate value of the various claimsmade in the answer—Sinnappu v. Theivanai*. The value, therefore,of the present action is Rs. 17,073.
[Soertsz J.—What is the class of a matrimonial action generally ?]
» (1938) 39 N. L. R. 553.2 (1912) 1 C. A. C. 108.
3 (1937) 39 N. L. R. 121.
Senadipathy v. Senadipathy.
273
According to item (l) in Schedule F of the Stamp Ordinance, matri-monial suits shall be charged as of the value of Rs. 1,000, where theamount of damages claimed does not exceed such stun; where thedamages claimed exceeds Rs. 1,000, the class shall be determined by theamount of the damages claimd according to the classification of suitsin civil proceedings in the District Courts.
[Soertsz J.—The determining factor then seems to be the amount ofdamages claimed ?]
Proceeding on the basis that the class is determined by the amount ofdamages, the defendant claims Rs. 10,000 from the added-defendant and,under paragraphs 6 and 7 of the answer, Rs. 4,433 from the plaintiff.His action, therefore, is for the stun of Rs. 14,433 as damages. Thus,whether the value of this action is regarded as Rs. 17,073 -or as Rs. 14,433the governing class for stamping purposes is class 5.
£ Soertsz J..—No damages can be claimed except against the co-defendant. Read section 598 of the Civil Procedure Code in conjunctionwith item (1) of Schedule F of the Stamp Ordinance.]
Section 40 (d) of the Civil Procedure Code provides for two or morecauses of action to be set out in a plaint. But even supposing thedefendant wrongly claims damages against the plaintiff and the answer isentertained, then the determining factor is the total damages claimed.
The class of a case is determined by the final state of the pleadings,whether the claim is lawful or not—Samynathan v. Atukorale 1; Little’sOriental Balarn and Pharmaceutical, Ltd. v. P. P. Saibo3 ; Silva v. Fernandoet al.3
H. V. Perera, K.C. (with him G. P. A. de Silva), for the defendant,appellant.—A divorce action is an action sui generis. For the purpose ofstamping, a formula applicable to an ordinary action cannot be applicableto a divorce action. The claims of the defendant are really two distinctlegal proceedings, one against the wife and the’ other against the co-respondent. The two legal proceedings, although rolled into one action,are incapable of amalgamation and cannot be regarded as one singleproceeding. The fact that one plaint is permitted does not make thetwo proceedings a single one.
An examination of the scheme of Chapter 42 of the Civil ProcedureCode makes it clear that the claim for damages against the wife cannot bemaintained in the present action and that section 36 of the Civil ProcedureCode is not available. Item (l) in Schedule F of the Stamp Ordinance 'constitutes a further special provision with regard to a matrimonialsuit. A suit does not cease to be matrimonial because a wrong claim is' included in that suit. Whether item (l) of Schedule F existed or not,this is a matrimonial suit, and the claim against the wife is foreign to it.
At any rate, in an appeal from an order for alimony the damages claimedfrom the co-respondent should not be.taken into account for the purposeof stamping.
1 (1940) 41 X. L. B. 409.*(19S$) 40 X. L. B. 441.
3 (.1908) 11 X. L. B. 3T > al iT V.
274
SOERTSZ J.—Senadipathy v. Senadipathy.
L. A. Rajapakse, in reply.—Stamps should be affixed according to theclass of the whole action and not according to the value of the interestof the appellant—Sinnetamby v. Thangamma1.
Cur. adv. vult.
February 17, 1942. Soertsz J.—
This was an action in which the plaintiff who is the wife of the defendantsued him to have their marriage dissolved on the ground of maliciousdesertion, as well as on the ground of adultery. She also asked that thedefendant be ordered to transfer to her his half share of some propertiesthat had been settled on them three days before their marriage on a certaindeed, or in the alternative to pay her Rs. 2,000.
In his answer the defendant himself claimed a divorce on the groundthat the plaintiff was living in adultery with one B. A. Charles Silva,whom he made a co-defendant, and from whom he claimed Rs. 10,000on account of damages. He also claimed Rs. 7,-073 from the plaintiffon three causes of action set forth in paragraphs 5, 6, and 7 of his answer.On the first cause of action, he claimed Rs. 2,640, which he alleged washer share pf the expenditure incurred by him in improving a commonland; on the second cause of action, he claimed Rs. 1,933 on account ofarticles belonging to him which were damaged by her or taken by herfrom his possession; and on the third cause of action, he claimed Rs. 2,500on account of his share of rubber coupons appropriated by her withouthis consent.
In this state of things, the plaintiff filed petition and affidavit asprovided by section 614 of the Civil Procedure Code and asked that thedefendant be ordered to pay Rs. 450 as alimony pendente lite for herselfand for the children of the carriage and Rs. 400 towards the costs ofthis action. The trial Judge held an inquiry on this application andordered the defendant to pay to the plaintiff Rs. 225 a month on accountof alimony pending the action, and Rs. 250 on account of costs.
The defendant appealed from this order on the ground that the amountawarded in respect of each of the claims was excessive. He made theplaintiff the party respondent to his appeal.
Counsel, for the respondent took a preliminary objection to this appealon the ground that the amount tendered by the appellant, together withhis petition of appeal to cover the stamp duty with which the decree ofthis Court and the certificate of appeal are chargeable, is less than theamount required by the Stamp Ordinance, and Counsel contended thatthe fact that subsequently the appellant supplied the deficiency is of noavail. This objection is based on the assumption that the class of thiscase for the purpose of the Stamp Ordinance is Rs. 17,073. If that isthe correct class, then, the amount originally tendered is, admittedly,insufficient and Council’s contention that it is not possible , to. make good •the deficiency in stamp' duty in the manner the appellant has soughtto do is conceded as well-established.
Counsel for the appellant, however, maintained that the class of thiscase for the purpose of stamping is Rs. 10,000 and not Rs. 17,073. Ifthat is correct the appeal is, of course, in order.
1 (1912) l c. a. c. 151.
SOEKTSZ J.—Senadipathy v. Senadipathy.
275
The short point for decision, then, is whether this action falls withinclass 4 or class 5 of Part 2 of Schedule A of the Stamp Ordinance.
In my opinion, item (l) in Schedule F (Miscellaneous) of the StampOrdinance read with Chapter 42 of. the Civil Procedure Code gives theanswer to that question. That item reads as follows: —
“ Matrimonial suits shall be charged as of value of Rs. 1,000 wherethe amount of damages claimed does not exceed such sum. Wherethe damages claimed exceed Rs. 1,000, the class shall be determinedby the amount of damages claimed according to the classification ofsuits in the District Courts.”
Section 596 of the Civil Procedure Code enumerates matrimonialactions as actions for divorce a vinculo matrimonii, or for separation 'a mensa et thoro, or for declaration of nullity of marriage. The presentaction is one for divorce, and as such is within item (l) of the StampOrdinance, and its chargeability with duty depends on the amount ofdamages claimed, if any. The word “ damages ” in the context canonly mean the “ damages ” referred to in section 598 of the CivilProcedure Code, and claimable, as they are claimed in this case, by a partydefendant in virtue of section 603 of the Code. The amount claimedin this instance, is Rs. 10,000 and, ordinarily, that amount would fix theclass of the action..
But Councel for the respondent argues that inasmuch as the defendanthas claimed, whether rightly or wrongly, three other sums of moneyamounting to Rs. 7,073, this action cannot be regarded as a matrimonialaction as contemplated in item (l), and that to ascertain its chargeability,it is necessary to add this sum of Rs. 7,073 to the sum of Rs. 10,000,which is the value set upon it by item (1) in so far as it is a matrimonialaction.
This contention gives to the question whether such causes of actionas the defendant has set up in paragrapths 5, 6, and 7 of his answer and theplaintiff, in paragraph 6 of her plaint, can be properly brought into amatrimonial action. For the reasons I shall presently state, my view isthat they cannot be introduced into such an action in the way in whichthey have been in this case.
Incidentally, I would point out that the causes of action set forth inparagraphs 6 and 7 of the answer are based on tort, and cannot be suedupon, at all, in the circumstances of this case in view of section 18 of theMarried Women’s Property Ordinance (Cap. 46). The cause of actionaverred in paragraph 5 appears to be based on a quasi-contract, and isenforceable, but not in the course of a matrimonial action.
The scheme of Chapter 42 is such as to imply that matrimonial actionsare put upon a footing or their own except that the rules and practiceprovided by the Civil Procedure Code in regard to plaints and answersin ordinary civil actions, and the procedure generally "provided by theCode are adopted in so far as the same can he made applicable, subject tothe provisions of Chapter 42.
Section 597 says that “ any husband or wife may present a plaint to theDistrict Court …. praying that his or her marriage may ..
.. be dissolved ”. Section 607 says that “ any husband or wife may
276
SOERTSZ J.—Senadipathy v. Senadipathy.
present a plaint to the District Court …. Praying that his orher marriage may be declared null and void ”. Section 608 provides forapplication to be made by a husband or a wife for separation a mensa etthoro by plaint to the District Court within whose jurisdiction he or sheresides.
There is no provision for any other relief being asked or any other causeof action being included in such a plaint, whereas in section 40 it is statedthat the plaint presented to Court in ordinary actions shall contain“ a plaint and concise statement constituting each cause of action, andwhere and when it arose ”.
In this conflict between what is required by section 597 and what isprovided for by section 40 of the Civil Procedure Code, section 597 mustprevail by virtue of section 596, and it seems to me to follow from that thatsection 36 is excluded by necessary implication and does not apply tomatrimonial actions.
Then there is section 598 which again emphasises the fact that amatrimonial action has been put upon a footing of its own, for thatsection enable a husband whether he be plaintiff or defendant, occupyingin virtue of section 603 the position of a plaintiff, to combine with thecause of action he alleges against his wife, where he is vsuing for divorceon the ground of adultery, a totally different cause of action against athird party with whom he alleges the adultery took place. And damageson account of the adultery complained of is all he may ask against theco-defendant in that action, even though he may happen to have othercauses of action against that party.
Alimony pendente lite is to be applied for collaterally and by summaryprocedure in terms of section 614. As for permanent alimony andante-nuptial and post-nuptial settlements, the Court is required to takethose matters up for consideration after decree for dissolution of marriagehas been entered. All this seems to me to suggest a reasonable andproper anxiety on the part of the Legislature to see that the importantand far-reaching issues that arise in matrimonial actions are not confusedwith other questions not strictly germane to them.
Again, section 601 says that where divorce is sought on the ground ofadultery, if “ the Court on the evidence, in relation to any such plaint,is not satisfied that the plaintiff’s case has been proved ” or finds thatthere has been connivance or condonation or collusion . … “the
Court shall dismiss the plaint”. There is no provision whatever for theCourt going on to try any other causes of action which either partyhas set up. Nor is that all. When it comes to the stage of enteringdecree, section 604 provides for a decree nisi in the first instance when theCourt has decided to dissolve the marriage. If, however, it is competentto a Court trying matrimonial action to entertain and decide othercauses of action as well, as have been set up in this case, then there willhave to be in the same action a decree nisi in regard to the dissolution ofmarriage and a decree absolute in regard to the other matter. There isalso the fact that in matrimonial actions the ordinary rule in regard toterritorial jurisdiction provided by section 9 of the Code is departed from,at least to the extent that a plaintiff is enabled, if not required, to institute-his or her action in the Court within the local limits of which he or she
WIJEYEWARDENE J.—Senadipathy v. Senadipathy.
277
resides. This means that, if other causes of action may be sued uponin a matrimonial suit, a plaintiff is entitled to disregard the restrictionsimposed by section 9 of the Code.
To me the conclusion seems irresistible that such claims as have beenmade in paragraphs 5, 6, and 7 of the answer cannot be included in anaction under Chapter 42.
The next question is whether the contention of Counsel for the respond-ent that these claims, even if wrongly made, should he taken into accountin fixing the class of the action is entitled to prevail. I do not think it is.In my opinion, we must deal with the action as it would have been if ithad been properly constituted. It has been observed that as long asthere is a necessity, in any stage of the proceedings In- an action, for appealto the authority of the Court, or any occasion to call upon it to exerciseits jurisdiction, the Court has, even if there has been some express arrange-ment between the parties, an undoubted right, and is, moreover, bound tointerfere if it perceives that its own process or jurisdiction is about to beused in a manner which the law does not warrant—Wade v. Simeon'.This observation, it is true, was made in regard to an entirely differentquestion, but it is of wide application and is relevant to the questionunder consideration here.
I would, therefore, overrule the preliminary objection and direct thatthe appeal be listed for hearing in due course.
Hearne J.—I agree.
WIJEYEW ARDENE J.
The plaintiff is the wife of the defendant. In the plaint filed by hershe prayed for a decree—
dissolving her marriage with the defendant on the grounds of
malicious desertion and adultery ;
ordering the defendant to pay a monthly sum as permanent
alimony for herself and as maintenance for her children ;
directing the defendant to transfer to her a half share of a certain
land or in the alternative pay her a sum of Rs. 2,000.
In his answer the defendant denied the allegations of adultery andmalicious desertion made against him and the plaintiff’s right to ask for atransfer of the half share of the property mentioned in the plaint. Hefurther pleaded that the plaintiff was living in adultery with one N. A.Charles Silva, from whom he claimed Rs. 10,000 as consequential damages.He prayed for a decree—
dissolving his marriage with the plaintiff ;
directing N. A. Charles Silva to pay him Rs. 10,000 as damages ;
directing the plaintiff to pay him a sum of Rs. 7,073.
The claim of Rs. 7,073 was made on the grounds—
that the plaintiff was liable to pay him a sum of Rs. 2,640 as a halfshare of the expenses incurred by him in improving a propertyowned jointly by him and the plaintiff;
> 13 M <b W, p. 647.
278WUEYEWARDENE J.—Senadipathy v. Senadipothy.'
that the plaintiff wrongfully removed some movable propertyof the value of Rs. 1,933 belonging to him ;
<c) that the plaintiff wrongfully appropriated to herself certain rubbercoupons valued at Rs. 2,500.
N. A. Charles Silva, who was made an added defendant, filed a statementdenying the allegations made against him in the defendant’s answer.
The District Judge held an inquiry for determining the amount payableby the defendant on account of alimony pendente life, the maintenance ofthe children and the expenses that would have to be incurred by thepetitioner in prosecuting her action.
The present appeal is by the defendant from the order made by theDistrict Judge at that inquiry in favour of the plaintiff.
When the appeal first came up for hearing before my brother Soertszand me, the Counsel for the plaintiff-respondent took the preliminaryobjection that the appellant has failed “ to deliver to the Secretary of theDistrict Court …. together with the petition of appeal theproper stamp for the decree or order of the Supreme Court and certificatein appeal ” as required by the Stamp Ordinance. The question wasthereupon referred by us to a Bench of three Judges under section 38 ofthe Courts Ordinance.
It is admitted that the defendant gave only stamps of the total valueof Rs. 24 for the decree of this Court and the certificate in appeal and afew days thereafter he tendered additional stamps of the value of Rs. 6.It has been decided by this Court that the default arising from the failureto supply the “ proper stamps1’ at the time of filing the petition of appealis not cured by the appellant supplying additional stamps subsequentlyto cover the deficiency. (Vide Balasubramanian v. Valliappar Chettiar').
The question that has to be decided, therefore, is whether a stamp ofRs. 12 is the proper stamp for a decree of this Court in this action or thecertificate in appeal. Though generally the class of an action for purposesof stamp duty is determined by the claim in the plaint, yet where thereis a claim in reconvention it has been held that the value of the stampduty should be calculated upon the value of that claim if that claim happensto be larger—V ellasamypulle v. The Uplands Tea Estates of Ceylon, Ltd.'In this case, therefore, the stamp duty would have to be determined on thebasis of the aggregate value of the claims made in the answer. (VideSinnappu v. Theivanai3). Now, as stated earlier by me, the defendantprays for (a) the dissolution of his marriage, (b) damages for Rs. 10,000against the added defendant, and (c) a sum of Rs. 7,023 against theplaintiff. The value of the claim in the answer must be determinedby reference to the Schedule A of the Stamp Ordinance. It is true thatthe Table in Schedule A does not state in express terms what the summentioned at the head of each class represents, but in de Silva v. Lever ‘Schneider J. expressed the view with which I respectfully agree, that thesum of money represented the value of “ the cause of action, title to landor property ” as mentioned in Schedule III. of the Civil Procedure Code.The value of the relief claimed in respect of the causes of action (a) and (b)has to be assessed according to item (l) in Part II. (F) of Schedule A of the
39 N. L. if. 553.3 9 S. L. B. 121 at 124.
i 1C. A. C. 103..1 13 -V. L. if. 435 at 430.
279
WUEYEWARDENE J.—Senadipathy v. Senadipathy.
Stamp Ordinance and that would be Rs. 10,000. The total value of the-aggregate claim on the causes of action (a), (b), and (c) would be Rs. 17,073and the proper stamp for the decree of the Supreme Court or the certificatein appeal would be Rs. 15. It is however argued on behalf of the appellantthat this would not be a correct way of assessing the value of the claimmade in the answer. It is said that as one of the reliefs claimed is adissolution of marriage, the action is a “ matrimonial action ” and there-fore in assessing the value of the aggregate claim in the answer we shouldnot go outside the item (l) mentioned above. What would then be thevalue of an action when a wife claims a dissolution of marriage and suesfor the recovery of movable property belonging to her and valued atRs. 50,000 ?
Has the action to be valued as an action for Rs. 1,000, ignoring theclaim in respect of the movable property? It was stated in the courseof the argument that such a claim for movable property would not bemade as there was said to be some bar operating against the joinder ofsuch a claim in an action for dissolution of marriage. It was sought to'support this argument by reference to section 598 of the Civil ProcedureCode which enacts that it “ shall be lawful ” in a plaint in an action“to include a claim for pecuniary damages ” against the co-respondentand this by necessary implication, it was argued, prohibited the inclusionof any other claim. This argument is based on the assumption thatsection 598 overrides the earlier provisions of the Code contained insection 36. I am unable to assent to this. Section 598 of the CivilProcedure Code provides for the inclusion of a claim for damages againstthe co-respondent as otherwise the inclusion of such a claim would have'been obnoxious to the earlier provisions of the Civil Procedure Code.(Vide Kanagasabapathy v. Kanagasabai'). That section merely enlargesthe right of a party with regard to joinder of causes of action and does nothave the effect of preventing a plaintiff from joining several causes ofaction as contemplated by section 36 of the Civil Procedure Code. An ana-logous argument; based on a similar assumption was unsuccessfully advan-ced in Wright v. Wright: when it was contended that in view of section 597of the Code an action for divorce could not be filed in the Court within thejurisdiction of which the defendant resided as laid down in section 9 of theCode. I am, therefore, of opinion that in the case contemplated by methe wife could in accordance with law make a claim in respect of her'movable property, subject of course to the right of the Court undersection 36 to order separate trials. Could it then be said that, in such acase, the stamp duty should be as in the Rs. 1,000 class though theCourt would have to adjudicate not only on the questiorr of divorcebut also on the right to the movable property valued at Rs. 50,000 ? Itappears to me further that the question whether certain causes of actioncould be joined along with a claim for divorce has really no bearing on theassessment of the stamp duty. Now it is clear in law that a plaintiff cannotin one action claim a declaration of title to one land against one defendantand title to a second land against another defendant. But if he does so,he should surely affix stamps according to the aggregate value of the twolands. The defendants in such a case could take an objection to the1 25 v . L. B. 173.* 8 N. L. R. 31.
280
WIJEYEWARDENE J.—Senadipathy v. Senadipathy.
misjoinder at the earliest possible opportunity under section 22 of theCivil Procedure Code and thus obviate the necessity for stamping thedocuments in the higher class if they secure an order in their favouron the question of misjoinder. The position then is that there is nothingin Chapter 42 of "the Civil Procedure Code which stands in the way of theadoption of the general rule that the value of an action for stamp duty isthe total value of the various claims made even if one claim happens to bea claim for dissolution of marriage or separation a mensa et thoro or nullityof marriage. I do not see any difficulty created by item (l) when it states—
“ Matrimonial suits shall be charged as of the value of Rs. 1,000,where the amount of damages claimed does not exceed such sum.Where the damages claimed exceeds Rs. 1,000, the class shall bedetermined by the amount of damages claimed according to theclassification of suits in Civil Proceedings in the District Courts.”
That means that in an action the relief claimed by way of a dissolutionof marriage and damages should be assessed in a particular manner.Such assessment would no doubt give the total value of the action forpurposes of stamp duty if no other relief is claimed. But I fail to seehow item (l) in the Schedule to the Stamp Ordinance could be regarded asprecluding a Court from considering any other reliefs claimed whetherrightly or wrongly in finding the total value of the claim in any action.The normal procedure in assessing the stamp duty would be to considerthe plaint or the answer in cases where the claim in reconvention exceedsthe claim of the plaintiff. The Court would then consider each of thecauses of action and ascertain the stamp duty in respect of each cause ofaction by reference to the Schedule to the Stamp Ordinance. A litigantcannot file a plaint asking for a divorce and for some other relief, sayrecovery of property, and evade the payment of stamp duty on theaggregate value of the claim by calling his action a “ matrimonial action ”.The item (l) in the Schedule to the Stamp Ordinance indicates a methodof assessing stamp duty in respect of certain kinds of relief claimed in anaction, namely, claim for separation a mensa et thoro, declaration of nullityof marriage or dissolution of marriage and damages. It has not the effectof overriding the general principle that the stamp duty should be assessedon the aggregate value of the various claims even if such claims have beenwrongly joined.
It was also suggested in the course of the argument that the only partiesconcerned in the present appeal were the plaintiff and the defendant,as the added-defendant had no interest whatever in the question ofalimony and therefore the sum of Rs. 10,000 claimed against the added-defendant should not be taken into account in assessing the necessarystamp duty. That argument cannot be entertained as it ignoresthe fact that the value of the stamps should be .ascertained accordingto the class of the particular action and not on the value ofthe interest of the appellant in the order appealed against. (VideSinnetamby v. Thangamma ') .
I am of opinion that the appellant has failed to deliver the necessarystamps as required by the Stamp Ordinance and that the appeal musttherefore be rejected.Objection over-ruled.
' t C, A. C. 151.