033-NLR-NLR-V-25-TANKAMUTTU-v.-KANAPATHIPILLAI.pdf
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Present: De Sampayo A.C.J. and Schneider J.JTANKAMUTTU v. KANAPATHIPILLAI.
359—D. C. Jaffna, 16,378.
Tesawalamai—Alienation of property by husband—Action by wife afterdivorce against alienee for half share of property alienated—Wife'srights.
Where a husband subject to the Tesawalamai alienates a pro-perty, the remedy open to the wife is to claim compensation on thedissolution of the marriage (by divorce or otherwise) from thehusband or from his estate, and not to bring an action for a halfshare of the property against the alienee.
P
LArNTJLh'Jj', who was subject to the Tesawalami, was marriedto the second defendant. The marriage was dissolved at the
instance of the plaintiff in May, 1921, on the ground of desertion andadultery of the husband. During the subsistence of the marriage,the second defendant acquired the lands in dispute in this case, andsold them in June, 1919, to the first defendant, his aunt. Plaintiffbrought this action for declaration of title to one-half of the lands.
The District Judge entered judgment for plaintiff as prayed forwith costs.
The first defendant appealed.
1923.
1923.
TankamUu
v.
Kanapaihi-
pillai
( 154 )
Balasingham, for the first defendant, appellant.—If the transferwas not a sale to first defendant, it was at least a donation. Evenif second "defendant donated the lands to the first defendant, theplaintiff cannot bring an action for declaration of title to thelands. Her only remedy is .against her husband for compensation.
The donation is not ipso facto as void to the wife’s half share. Shemust wait till the dissolution of marriage by death or divorce, and.ask if she is prejudiced by the gift or sale for compensation. Thereis nothing to show that the wife has been prejudiced. Counselcited Sellachchyt v. Visuvanathan Chetty,1 1 Madsdorp 40, 1 Nathan,section 392. The wife has no greater right under the Tesawalamaithan a wife had under the Roman-Dutch law.
E, W. Jayawardene (with him Arulanandan), for- the plaintiff,respondent.—The District Judge has held that the second defendantintended to defraud the plaintiff. There was no genuine sale. Theplaintiff can therefore bring an action for declaration of title to ahalf share. It is only a bona fide purchaser who is protected. Seejudgment of De Sampayo.J. in 23 N. L. #., p. 121; the judgmentof Bertram C.J. at pp. 116 and 117*
The second defendant could not have donated more than half.
Counsel also referred to Opinions of Grotiotis 141, De Nicole v.Curlier,2 Sampa&ivam v. Manikkam.3
Cur. adv. wit.
May 30, 1923. De Sampayo A.C.J.—
In this case we have to deal with a point arising under the Tesa-walamai which I think has already been decided. The plaintiffwas the wife of the second defendant, and on May 2, 1921, sheobtained a decree of divorce on the ground of desertion and adul-tery which were alleged to have taken place in March and December;1919, respectively. The second defendant, who was entitled to thelands in litigation as his acquired property purchased by himduring the subsistence of the marriage, transferred them to hisaunt, the first defendant, by deed dated June 2,1919. There was aquestion whether the transfer was an. actual sale or a deed withoutany. consideration. The plaintiff impeaches it as a deed collusivelyexecuted in fraud of her, and with the intention to deprive her ofher rights in the acquired property of the husband. She claimsthat the deed by the second defendant in favour of the first defen-ant be set aside, and that she be declared entitled to a half share ofthe lands, and the District Judge has granted her prayer. Thequestion is as to the extent of the remedy available to her underthe Tesawalamai. The general question was fully considered in(3922) 23 N. L. R. 97.' * (1900) 2 Ch. 110.
3 (1922) 23 N. L. R. 257.
1928.
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Seelachchy v. Vimvanathan Chetty (supra) by the Full Bench, and itwas there held by the majority of the Judges that the wile could notclaim against an alienee from the husband a half share in anyspecific property, and that her right was for compensation out of theestate of the husband. In that case the transfer was a gift to a sonfrom whom the defendant had purchased bona fide. But thatcircumstance does not alter the general principle. The followingpassage in the judgment of Bertram C J. appears to me to lay downthe principle to be followed :—
“ The question arises, therefore, whether the act of the husbandis ipso facto void, entitling the wife to an immediate reivindicatio action, or whether, on the contrary, she or her*heirs must not wait till the dissolution of the marriage bydeath or otherwise for some form of compensation. Infavour of the latter view is a passage in paragraph 4, section5, of the Tesawalamai, where it is expressly said that if ahusband without the knowledge of his wife shall havegiven a part of the thediathetam to his heirs, the matteris ultimately to be adjusted on the death of husband andwife between their respective heirs. Nothing is saidabout the donation being ipso facto void. Indeed, thecontrary is implied. Further, in more than one place inthe Tesauxitamai, and in the cases collected by Muthu-kistna, there are passages which seem to imply that un-authorized alienations by the husband, whether of dowryor hereditary property or of acquired property, are notipso facto void, but are matters to be dealt with by wayof compensation.”
There is one circumstance in the present case about which a wordmust be said. It appears that in December, 1919, the seconddefendant took unto himself another woman with the assistanceof the first defendant who granted' a promissory note to the woman.So far as I can see, this is the only foundation for the suggestionthat, by the deed executed in favour of the first defendant sixmouths before, the second defendant intended, in anticipation of anact of adultery and an action for divorce, to defraud his wife, theplaintiff. I am unable to agree with this view, and I think, theinference is too farfetched to be of any value. I think that thedeed, even if the first defendant gave no consideration for it, must beregarded as no more and no less than a deed of gift.
In my opinion the plaintiff’s action failed, and must be dismissedwith costs in both counts, and the plaintiff must be left to pursuesuch other remedy as might be available to her.
Dr SampayoA.C.J.
Tankamvttu
u.
Kanapathi•
pillai
Schneider J.—I agree,25/15
Set aside.