074-NLR-NLR-V-50-SINGARAVELU-Appellant-and-PONNAN-et-al.-Respondents.pdf
280
CANEKLE RATN E J.—Singaravelu v. Potman
1948Present: Canekeratne and Gratiaen JJ.
SINGARAVELU, Appellant, and PONNAN et al., RespondentsS. C. 316—D. G. Point Pedro, 2,126
Thesavalamai—-Debt of husband—Decree—Sale in execution after death of wife-—
Thediatetem ■property—Title of children not affected by sale.
First defendant who was subject to the Thesavalamai was married toone M. In 1926 first defendant borrowed money on a promissory note.M died in 1929 leaving as heirs her children, the second and fourthplaintiffs. Action was brought on the promissory note against the firstdefendant only and decree entered in 1932. At a sale in execution in1933 the right, title and interest of the first defendant in the property inquestion which was thediatetem was sold and purchased by the secondand third defendants from whom it ultimately came to the sixthdefendant.
Held, that the half share which devolved on the children on M’s deathdid not pass to the purchaser at the sale.
PPEAL from a judgment of the District Judge, Point Pedro.
E. B. Wikramanayake, K.C., with H. Wanigatunga, for sixthdefendant appellant.
N. E. Weerasooria, K.C., with V. Arulambalam, for plaintiffsresp ondents.
H. W. Tambiah, with S. Mahadevan, for second and thirddefendants respondents.
September 17, 1948. Canekeratne J.—
We dismissed the appeal at the close of the argument with an intima-tion that reasons would be given later. , The delay is partly due to thefact that some days elapsed before the record in the Kurunegala casereferred to later was available.
In this action the second and fourth plaintiffs claimed one-third shareof a land called Alakkadavai. The first defendant who was married toone Muththy purchased this land by deed PI dated September 18, 1920 ;his wife died on or about June 28, 1929, and the second and fourth plain-tiffs are two of the children of the marriage. It is not contended that theview taken by the learned Judge, that a half share of the land devolvedon the children of Muththy on her death, is incorrect. But the appellant
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281
contends that on D 1 dated September 24, 1934, the second and thirddefendants became entitled to the entire property and that he becamethe owner by D 2.
On December 19, 1931, the second defendant sued the first defendantfor recovery of a sum of money due on a promissory note dated October24, 1926, and on March 23, 1932, he obtained a money decree for Rs. 295with interest and costs. In execution of the judgment in this case, theright, title and interest of the first defendant in this land was seized andsold on September 6, 1933, and purchased by the seeond and thirddefendants on D 1. The children of Muththy were not parties to thiscase, the judgment was one against the first defendant personally andnot in a representative capacity. The general rule that a transactionbetween parties in a judicial proceeding would not be binding upon athird party ought to apply unless the authorities quoted at the argumenton behalf of the appellants, namely, A.vitchy Chettiar v. Masamma 1 andSewakeenpillai v. Murugwpillai 2 establish the contrary. Counsel was notable to produce any authority to show that according to the provisionsof the Thesavulamai, the whole acquired property was liable for thepayment of the debts contracted by the husband.
What passes to a purchaser at a sale in execution of a decree for moneyis the right, title and interest of the judgment debtor, whatever thatinterest may he, that is, the purchaser buys the property with all the risksand defects in the judgment-debtor’s title. He obtains only the preciseinterest and no more of the execution-debtor ; a Court has no jurisdictionto sell the property of persons who were not parties to the proceedings orproperly represented on the record. As against such persons the salepurporting to be made under the decree would be a nullity.
Section 20 of Cap. 48 of the Ceylon Legislative Enactments is asfollows, omitting immaterial words :—
“ The tediatetam of each spouse shall he property common to thetwo spouses, that is to say, although it is acquired by either spouse andretained in his or her name, both shall he equally entitled thereto.
“ Subject to the provisions of the Tesawalamai relating to liabilityto be applied for payment or liquidation of debts …. on thedeath intestate of either spouse, one half of this joint property shallremain the property of the survivor and the other half shall vest in theheirs of the deceased
It appears that a communio quuestuuvn takes place on the marriageof a man and woman who are subject to the Tesawalamai, there is thusa community as to the tediatetam- or things acquired stante matrimonioby the spouses. If the husband and wife have, 'by their economy,industry or trade, acquired a sufficient sum with which they havepurchased any property, such property, whether it be purchased in thejoint names of the husband and wife, or in the name of the husband alone,,becomes part of this community, and the title and possession pass to thehusband and wife, in short, every description of property, which from itsnature might be the subject of the communio bonorum of the Rom an -3 (1933) 35 1ST. L. R. 313.* (1940) 18 C. L. W. 49.
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CANEKERATNE J.—Singaravelu v. Ponnan
Dutch law, will, if purchased by the husband or wife, stante matrimoniobecome the subject of the community of profits of the Tesawalamai. InAvitchy Chettiar v. Rasamma {supra,) a property purchased by the wife withmoney given to her as her dowry by her parents was held to be includedamong these. Whenever the community as regards acquisition prevails,the husband and wife, and their respective estates become liable for thedebts contracted by them stante matrimonio, and probably other debts L
During the joint lives of the husband and wife the husband is entitledjure mariti to manage and administer the common property. Thehusband can, the authorities show, sell or mortgage the property formingpart of the communio quaestuum without the consent of his wife. It isclear, however, that he cannot, after the wife’s death, deal with anythingmore than his share, for a half share vested in the heirs of the wife on herdeath 2. The community is at an end by the death of either party, theseparation effected by death abridges the husband’s power of alienation.
On the death of El a half share of this estate remained the property ofthe widow subject to the provisions of the Tesawalamai, in respect ofdebts, the other half vested in the heirs of El subject to the same liability.
A creditor was entitled to sue the survivor for the recovery of what wasdue to him—or is it only a half share ?—and to execute the judgmentagainst the half share of the survivor. Likewise he had a right to suethe heirs of the dying spouse, provided there was adiation, but in the caseof a large estate or for the recovery of a large sum he would sue theadministrator or executor. Having obtained judgment against theadministrator or executor he could execute it against the half share inthe hands of the heirs, for the personal representative retains power tosell the property that vested in the heirs of the deceased on his death,and this includes the right of a creditor to follow the property for thepayment of the debt 3. Avitchy Chettiar took proceedings against thesurvivor and the administratrix of the estate of the deceased and obtainedjudgment, he was thus enabled to bring the whole property for sale inexecution of the judgment.
•In Avitchy Chettiar v. Rasamma {supra), D. C. Kurunegala, No. 13,636,in execution of a decree against the administratrix of the intestate estateof El, the property was seized and on a claim being preferred by Rasamma,his widow, it was upheld. The plaintiff then instituted an action undersection 24=7 of the Civil Procedure Code, Cap. 86 of the Ceylon LegislativeEnactments, against Rasamma, personally and as administratrix of theestate of the deceased, to obtain a declaration that the property wasliable to be sold in execution of the decree. The plaintiff averred in theplaint that the husband bought Mahawatte estate with his money butobtained the deed in the name of the wife to defraud his creditors ;alternatively, that the deed was executed in her favour in trust for thehusband ; alternatively, by an amendment, that the property wastediatetam property and liable to be sold. The defendant denied theaverments. She pleaded further that it was bought out of her dowrymoney given to her by her parents and that the estate was her separate
1 See Part I2C., Section 3 of Gap. 51.3 Silva v. SUva (1907) 10 N. L. R.
* Section 22.234.
(1923) 25 N. Tj. R. 201.Gopalsamy v. Ramasamy Pidle
(1911) 14 N. L. R. 238.
CANEKERATISrE J.—Singaravelu v. Ponnan
283
property. Under the law prior to the enactment of Ordinance No. 1 of1911, a property purchased under similar circumstances “was regardedas the property of the spouse who purchased it and did not form part ofthe iediatetam property The trial Judge found the facts in favour ofthe defendant and following a decision of this Court that the old lawwas not changed by the Ordinance dismissed the action. The onlyquestion that seems to have been argued at the hearing of the appealwas whether the premises in question were of the character of theproperty which is declared by section 21 (a) to be iediatetam. It washeld to be tediatetam and judgment was entered in favour of theplaintiff declaring the property iable to be sold in execution of thejudgment. The action was against the defendant personally and asadministratrix of her husband’s estate.
In Sewakeenpillai v. Murugupillai, {supra) the defendant as the heiressof her sister claimed a half share of a land, bought a few weeks before herdeath by the husband, when it was seized in execution of a judgmentagainst him ; the action was filed after the death of the wife. The claimwas upheld and the plaintiff instituted the action to have it declaredthat the half share was liable to be sold in execution of the decree. Theplaintiff-appellant succeeded in appeal. The judgment contains thefollowing :—“ On the death of Sangapathy one half of the propertyvested in the respondent but such vesting was ‘ subject to the provisionsof the Tesawalamai relating to liability to be applied for the payment ’of the debt contracted by Sithambarapillai {vide section 22). The onlyquestion is whether under the provisions of the Tesawalamai the halfshare in question could be seized in execution of the decree againstSithambarapillai. A similar question arising under similar circumstanceshas been answered in the affirmative by a Divisional Bench of the Court,in Avitchy CJietty v. Rasamma 1.” Had the learned Judge all the factsof the case of Avitchy Chettiar v. Rasamma before him, it is doubtfulwhether he would have taken the view he did.
At the close of the argument on behalf of the appellant Mr. Tambiahdesired to address us and we decided to hear him though he had no right.He referred to Sevakeenpillai v. Murugupillai {supra) and to Katharuvaloev. Menatchipille,2 It was mentioned by him that he drew attentionto the latter decision at the argument in the former case. The learnedJudge properly, if I may be permitted to say so, made no reference to thisease inasmuch as it gave no assistance to the contention of the appellant.There it was found that “ the defendant and one K. M. were married toeach other in 1871 ”. On a promissory note given by KM to the plaintiffin 1886, the latter obtained judgment in October 1890 and seized severalparcels of land which constituted the “ acquired property ” of the spouses.The defendant’s claim to a half share being upheld, the plaintiff broughtthe action to obtain a declaration “ that the whole of the lands wereliable to be sold in execution ”. The contention of the defendant wasthat at the time of the institution of the action On the note and at thedate of the decree therein the defendant and K. M. had been judiciallyseparated and that apparently a half share was possessed separatelythereafter. It was held that the acquired property was liable for the1 (1933) 35 N. £. R. 313.* (1892) 2 C. L. R ep. 132
284
Sopihamy v. Dias
debts incurred by the husband during coverture and “ the decree of divorcecould not affect ’’ the rights of the plaintiff—or as Withers J. said “ thisliability could not be affected by a simple sentence of divorce ”. It isnecessary to bear in mind that the decree in the matrimonial action wasentered before the coming into operation of the Civil Procedure Code ;in May, 1890,she obtained “.a decree of divorce a mensa et thoro ” fromher husband. Under the old procedure there appears to have been adecree of divorce a vinculo matrimonii and a decree of divorce a mensa etthoro 1. The latter would seem to be what would now be known as adecree of separation a mensa et thoro. Where a Court passed in thosedays a decree of divorce a mensa et thoro unless the Court made an orderinterdicting the husband from all interference with the wife’s propertyand ordering a division of the common estate she continued to be a feme .covert. As Voet states—A judicial separation thori et honorum and adivision of the property of the husband and wife will not terminate thecommunity nor will it, unless it be also accompanied by an interdictrestraining the husband from interfering with the wife’s property, in anydegree abridge his marital power in the administration and alienation ofit or in binding her and her property by his contracts, nor will it enablethe wife to make any dispositions 2.
The fact that the word “ divorce ” was used to include two kinds ofrelief, may afford an explanation for the omission of any reference to anaction for separation in section 16 of the Prescription Ordinance of 1871(Ordinance No. 22 of 1871), now section 15 of Cap. 55 of the CeylonLegislative Enactments—the words there being “ an action for divorce ”.
Gratiaen J.—I agree.
Appeal dismissed.