071-NLR-NLR-V-31-THAMOTHERAM-v.-NAGALINGAM.pdf
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Present: Drieberg J.
THAMOTHERAM v. NAGALINGAM.
101—C. B. Point Pedro, 23,674.
Thesawalamai—Salaryof husband asschoolmaster—Tediatetam—
Jaffna Matrimonial Bights and Inheritance Ordinance No. 1 of
1911, s. 21 (6).
The salary earned as a teacher by a person, who is governed by
the Thesawalamai, is not tediatetam property within the meaningof section 21 of the Jaffna Matrimonial Bights and InheritanceOrdinance.
A
PPEAL from an order of the Commissioner of Requests, PointPedro.
The plaintiff-appellant in person.
H. V. Perera (with him Oroos da Brera), for first defendant,respondent.
November 20, 1929. Dbieberg J.—
The appellant and his wife, the second defendant-respondent, areJaffna Tamils subject to the Thesawalamai.
The first defendant in execution of a judgment obtained againstthe second defendant seized a half of the salary due to the appellantas a teacher in Hartley College, Jaffna. This action is one undersection 247 of the Civil Procedure Code and is brought by theappellant for a declaration that the half share of his salary seizedis not liable in execution of the decree against his wife. TheCommissioner of Requests held that it was liable, and the appeal isfrom that order.
It was necessary for the purposes of this appeal to know whetherthe appellant and his wife were married before or 'after the cominginto operation of *the Jaffna Matrimonial Rights and InheritanceOrdinance No.'l of 1911. I pub off the further hearing of .the appealfor proof of this, and the appellant has submitted a certified copyof his marriage certificate, which shows that .they were marriedon August 16. 1912, and their matrimonial rights are, therefore,governed by the provisions of this Ordinance.
The appellant has no property whatever, and his only income ishis monthly salary as a teacher of Rs. 215, which he says is all spenton the maintenance of himself and his family.
By section 9 of the Ordinance any property to which a husbandshall become entitled during marriage except by way of tediatetambelongs to him for his separate estate ; the similar provision in thecase of wives is stated, and with greater detail, in section 8 ; section 9
1929.
0J. X. B 11394 (10/51)
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1929.does not qualify the word tediatetam by the words “ as hereinafter
_ ‘defined, " but even so the word tediatetam must be accepted as
JJBIBBBRG J«/ n
defined in the Ordinance.
ThamM^rmn gection 21 states:—“The following property shall be known asgam tediatetam of any husband or wife:
Property acquired for valuable consideration by either
husband or wife during the subsistence of marriage.
Profits, arising during the subsistence of marriage from the
property of any husband or wife. ”
It is not possible to say that the salary earned by the appellantfalls under section 21 (b). Mr. Perera contends that section 21 (a)applies, and that the salary is earned by the rendering of serviceswhich would constitute valuable consideration. The section dealswith the profits of the property of either spouse, which become thecommon property of both, and with the acquisition of propertyduring marriage by either spouse, which also becomes tediatetam orcommon property. The reason underlying this is that acquisitionsduring marriage, though made with the money of one spouse,would ordinarily in some measure be due to the efforts and assistanceof the other spouse.
In considering the question of. money belonging to a husbandbefore marriage but invested after marriage on a mortgage of land,de Sampayo J. said “ the expression ‘ property acquired for valuableconsideration ’ in section 21 well applies to purchases and the likebut is wholly inapplicable to investment on loans ’’ (Nalliah v.Ponniah1). In that case the Supreme Court adopted the view of theActing District Judge, Sir Amfcdavanar Kanagasabai, who said :“ In my opinion it (section 21) does not go the length of saying thatthe mere accident of purchase during the married state gives theproperty the character of tediatetam. The valuable considerationreferred to in that section must have been itself tediatetam to makethe property tediatetam, as it was before the Ordinance.’’
In the above case the husband, who had invested on the mortgageof a house during marriage money which was his own before marriagebought the house during the marriage, part of the considerationbeing the amount of the debt, which was discharged, and the balanceout of earnings during marriage and of interest on his investment.The District Judge struck a proportion according to these respectivesums of money and declared the husband entitled to a share of thehouse which corresponded to the mortgage debt and the rest to betediatetam to be divided between husband and wife.
The judgment of the Supreme. Court proceeded on the basis thatthe earnings of the husband were regarded as tediatetam. I havesent for and examined the record of this case. The husband was alawyer who had saved money before his marriage and continued
1 {1920) 22 N. L. if. 198.
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investing this thereafter. He had Rs. 9,200 before marriage, and athis death, four years later, he had Rs. 17,272, being principal and Dribbbbo J.interest due on loans. This represented the accumulated intereston the original sum and the savings from his professional income. Nagalin-He had also acquired the house I have referred to.9am
Money which a, man has saved from professional earnings, whichhe has set. aside or invested, and which is not needed for his ordi-nary expenditure, can be regarded as acquisitions or as acquiredproperty. I do not think these expressions are applicable to thesalary of the appellant in this case. It is just sufficient for his needsand is exhausted in fulfilling the natural and legal obligations he isunder of supporting his wife and children.
I allow the appeal. Let decree be entered for the appellantdeclaring that the half share of his salary seized is not executableunder the decree in D. C. Jaffna No. 21,079. The first defendant-respondent will pay the appellant his costs of the proceedings in thelower Court and of this appeal.
Appeal allowed.