022-NLR-NLR-V-39-TAMBIAH-v.-SANGARAJAH.pdf
Tambiah v. Songarajah.
er
1937Present: Soertsz J. and. Fernando A.J.
TAMBIAH v. SANGAKAJAH.70—D. C. Jaffna, ,6£90.
Thesawalamai—Mortgage of thediathetara property by husband—Hypothecaryaction by mortgagee—Death of wife pending the action—Failure to makethe heirs party to the action—Decree not binding on heirs'—Ordinance •No. 21 of 1927, s. 11.
Where under the thesawalamai the husband mortgaged thudiathetamproperty and during the pendency of a hypothecary action brought by-the mortgagee against the husband, the wife died leaving heirs,—
Held, that the heirs were not bound by the decree entered' in theaction unless they were made parties to the action.
Ambalavanar v. Kurwnathan (37 N. L,. R. 286) followed.
Where in an action for declaration of title to land an issue vr.as'settled as. to whether the plaintiff was entitled -to claim equitable reliefunder section 11 of'the Mortgage Ordinance, No. 21 of 1927, and whereobjection was taken in appeal that the claim was obnoxious to section 35-of the Civil Procedure Code,—
Held, that the fact that the issue was adopted implies that therequisite leave was granted under section 35.
A
PPEAL from a judgment of the District Judge of Jaffna. Theplaintiff brought this action to be declared entitled to a land
which he had purchased in execution of a hypothecary decrefe he hadobtained against defendant’s father in respect of the land. The defen-dant’s case was that the western portion of the land was the thediathetamproperty of his parents. He admitted that during his lifetime hisfather mortgaged the land to the plaintiff, who put the bond in suit incase No. 1,631, D. C. Jaffna, making only his father, the defendant.While the case was pending, his mother Nahnipillai died. The plaintiffcontinued the action without making the heirs of Nannipiliai panties to
*(1936) 2 A. E. R. 213.
02
SOKRT8Z J.—Tambiah v. Sangarajah.
the action. The defendant contended that he and his minor sisterwere not bound by the decree entered in the hypothecary action.
the learned District Judge gave judgment for the plaintiff.
H. V. Perera, K.C. (with him T. Nadarajah), for defendant, appellant.—Where the husband mortgages thediaihetam property, and at the timeaction is brought on the mortgage bond the wife is dead, her heirs mustbe made parties to the action. Otherwise they, are not bound by thedecree (Ambalavanar v. Kurunathan*). Similarly, when the wife diespending the action, her heirs must be joined. On the death of the wife,community comes to an end, and the children, her heirs, become entitledto a share through their mother and their father has no rights over theirproperty, and as they were not parties, their shares cannot be sold underthe decree.
N. E. Weeraaooria (with him Tissevarasinghe, N. Nadarajah, and Corea),for plaintiff, respondent.—The husband has full control over thediaihetamproperty, and is entitled to mortgage the entire property, including the- wife’s share. The wife is not a necessary party in an action on the bond(SangarapiUai v. Devaraja Mudaliyar 2). Rights and liabilities must beconsidered as they existed at the time the action was instituted. Sincethe wife was not a necessary party at that time, it follows that her heirsneed not be made parties at her death. It is only when a party to anaction dies that the legal representatives are to be substituted. Thedecision in Ambalavanar v. Kurunathan (supra) should' not be followed.Even if it is it can be differentiated, because in that the wife was dead atthe time the action was instituted, and therefore her heirs had alreadybecome entitled to her share, and had acquired present lights.
Alternatively, plaintiff is entitled to relief under section 11 of the'Mortgage Ordinance, No. 21 of 1927.
H. V. Perera; K.C., in reply.—The position as between husband andwife, is entirely different. The wife is not a necessary, party because the■husband has full rights to deal with the whole of the thediaihetam property.She is represented by her husband and bound by his act. There is nocommunity between the husband and his deceased wife’s heirs.
With regard to the alternative claim for relief under section 11 of theMortgage Ordinance, no such claim was made in .the lower Court. More-over, it is barred by section 35 of the Civil Procedure Code.
Cur. adv. wit.
June 24, 1937. Soertsz J. —’
r
The plaintiff brought this action to be declared the owner and proprietorof the land 181 lachams 15 J kulies in extent described in paragraph 1of , the plaint. He alleged that the defendant had objected to, andprevented the Fiscal from putting him in possession thereof, in executionof a hypothecary decree he had obtained against the defendant’s fatherin respect Of this land.
, The defendant’s answer disclosed that he claimed' certain interestsin the western portion of this land, namely, that portion that is made upof the two lots of 10 lachams and 15 kulies and of 3 lachams and J kuly.He claimed nothing of the eastern lot 5 lachams in extent. ; Thedefendant’s case is that the eastern portion of their, land was the*37 N.h. R. 236.~* 33 N. i>. R. 1.
SOERTSZ J.—Tambiah v. Sangarajab.
63
thediathetam property of hie parents Sinnadurai and iNannipillai. Headmits that during his mother’s lifetime, his father mortgaged this landon February 21, 1929, to the -plaintiff who put the bond in suit in caseNo. 1,631, D. C. Jaffna, on November 26, 1931, making only his fatherSinnadurai the defendant. While that case was pending Nannipillai (hismother) died on December 14, 1931. The plaintiff continued the actioneven thereafter only against Sinnadurai the mortgagor, and obtained decreeon February 2, 1932, and at the sale in execution purchased this landhimsplf on deed P 3 of February 1, 1934. The defendant contendsthat he is not bound by the decree and that he and his minor sister areentitled to a half share of the land. That is the principal question fordecision.
A Divisional Bench of this Court has held—and that ruling binds us—that under the th-esawalamai the husband has the same right to mortgageproperty which forms part of the thediathetam property, after the passingof Ordinance No. 1 of 1911, as he had before this Ordinance was enacted,and that the wife is not a necessary party to a hypothecary actionagainst the husband on a mortgage effected by him in respect ofthediathetam property, in order to make her interest in the property boundby the decree (Sangarapillai v. Devaraja Mudaliyar ’). In that case,however, the wife was alive at the t-ime of the decree and thereafter.In fact, it was she who took the point that she was not bound by thedecree ■ entered against her husband. In an earlier case (Ambalavanar v,Kurunathan'), Poyser and Koch JJ. held that where after the JaffnaMatrimonial Rights and Inheritance Ordinance of 1911 a husbandmortgaged thediathetam property, and the mortgagee after the death of thewife put the bond in suit, without making the minor heirs of the wifewho were in possession parties to the action, the heirs were not boundby the hypothecary decree.
Counsel for the respondent questioned the soundness of this decisionand also maintained that if we accepted that decision, t''e present caseis distinguishable by reason of the fact that in that cat ‘he wife wasdead at the time the action was brought, whereas in thL ase the wifewas alive and died only two months before decree was entered.
I am unable to appreciate this distinction. I can see no goodreason for requiring heirs to be substituted in cases where the wife diesbefore the institution, of the action, and not requiring them to besubstituted in cases where she dies pending the action, if it is sought tohind them by decree. In a case in which the wife is alive at the timeof the decree, as in the Divisional Bench case I have already referred to,there is manifestly good logical foundation for holding that it will besufficient to sue the husband in order to bind the wife too. Chief JusticeMacdonell based his finding to that effect on the theory that thehusband is the sole and irremovable attorney of his wife with regardto alienations of thediathetam property by sale or mortgage and that forthe purpose of such alienation, the wife’s persona is “ merged in thatof the husband and there can be no requirement that she should bejoined as a party to any mortgage action, because she cannot on anycorrect analysis be described as a party separate from her husband ”.Dalton J. said, “ having regard to the powers of the husband in respect* 38 N. L. R. 1.'* 37 N. L. R. 286.
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SOERTSZ J.—Tambiah v. Sangarajah.
of the common property of the spouses to mortgage the whole of theproperty, the wife is not a necessary party to the action to make herinterest in it bound by the decree …. This seems to me anecessary inference or deduction from his powers to mortgage the wholeproperty ”.
I prefer myself to state the principle in the way in which Dalton J.stated it, for 1 find some difficulty in proceeding on the principle of thehusband being “ the sole and irremovable attorney of his wife ”. But,it must be remembered that this power of the husband presupposes theexistence of a community of property between himself and his wife,and that community of property presupposes in turn the existence of thehusband and wife. The death of either husband or wife puts an endto that community for purposes such as those with which we areconcerned in this case. In regard to the children, the position of thehusband or father is quite different. The moment the wife dies, there isno community between him and his children. They derive their titlefrom their mother, and their father as father has no control over theirshares of the property. As husband the position he occupied in regard tohis wife was quite different. In a case like the present, it is true that the' children’s share is liable for the debts, but for that liability to be madeeiffective the children must be sued or made parties to a pending action.I, therefore, see no reason for dissenting from the view taken in Ambala-■vanar v. Kurunathan, and as I have already observed, I do not think that thefact that in this case the wife was alive at the date of the institution ofthe' action makes any difference. Counsel for the respondent alter-natively asked for relief under section 11 of the Mortgage Ordinance,and I would have acceded to this request but I find that there isnot sufficient material on the record on which to estimate and assess'that relief.
Mr. Perera, for the appellant, contended that the plaintiff had notasked for relief under that section and that he could not ask for it in viewof terms of section 35 of the Civil Procedure Code. It is correct thatin the plaint no claim was made under section 11 of the Mortgage. Ordinance,.but the question was raised in issue 5.v
In regard to the contention that such a claim is obnoxious to section35 of the Code, if the leave of the Court was necessary for such a claimto be put forward, the fact that the Court adopted and framed issue 5implies that it gave the requisite leave.
I would therefore set aside the decree of the District Judge and remitthe case to him for the investigation of the question of the reliefto whichthe plaintiff is entitled under section 11 of Ordinance No. 11 of 1927.The defendant-appellant has succeeded on the question argued, namely,whether he and his sister were bound by the decree or not and he is,therefore, entitled to the costs of appeal. I leave the question of thecosts in the trial Court to the District Judge when he is making his orderon the investigation he is directed to make. I would add that thedefendant’s minor sister should be duly added a party defendant beforethe case goes further.
Fernando A.J.—I agree.
Set aside.