068-NLR-NLR-V-65-THEIVANAIPILLAI-Appellant-and-NALLIAH-et-al.-Respondents.pdf
346
Themwu^iai ». NvMtA
Present: Weerasooriya, J., and Sinnetamby, J.THE IVAN ATP ELLAI, Appellant, and NALLIAH et al., Respondents:S. C. 364—D- G. Jaffna, 546/L
Thesavalamai—Tediatetam—Sale of it by vnfe without husband’s consent—Sanctionof Court obtained—Notice given to husband but no objection raised by him—Validity of sale questioned by husband in a subsequent action—Right of wifeand vendee to plead res judicata—Jaffna Matrimonial Rights and InheritanceOrdinance (Cap. i(S), ss. 6, S, 19 (a), 20 (1).
In proceedings No. D257, a married woman applied to Court under section 8of the Jaffna Matrimonial Eights and Inheritance Ordinance to sell without-her husband’s written consent a land which had been acquired by her duringthe subsistence of her marriage and which, according to the law as it thenstood, was tediatetam irrespective of whether it had been purchased by herwith her dowry money or not. The husband, although he was served withnotice of the wife’s application, was absent when the Court, after inquiry,made order authorising the sale of the land without the husband’s oonseat.After the land was sold by the wife, the husband sought in the present action-to challenge the validity of the cede on the ground that the Court had no juris-diction to sanction, the sale of tediatetam property without his authority.
Held, that the order in proceedings No. D257 involved the finding that theland was the wife’s separate property, The plaintiff in the present action wasestopped by the operation of the doctrine of res judicata from now showing,that the property in question wm tediatetam property.
WE ERAS 0 ORIYA, J.—Thewanaipillai v. Nalliah
347
Appeal from a judgment of the District Court, Jaffna.
C. Ranganathan, with A. Nagendra, for 3rd defendant-appellant.V. ThiUainathan, for plaintiff-respondent.
No appearance for 1st and 2nd defendants-respondents.
Cur. adv. vult.
May 15, 1961. Weerasoobiya, J.—
The land which is the subject matter of this action was acquired forvaluable consideration by the 3rd defendant-appellant on deed PI of 1934during the subsistence of her marriage with the plaintiff-respondent.The parties are Jaffna Tamils governed by the Thesawalamai. It is notdisputed that they were married after the coming into operation of theJaffna Matrimonial Rights and Inheritance Ordinance, No. 1 of 1911,now Chapter 48. Pi was executed prior to the amendment of thatOrdinance by the Jaffna Matrimonial Rights and Inheritance AmendmentOrdinance, No. 58 of 1947. By virtue of sections 19 (a) and 20 (1) ofChapter 48, as it then stood, the land acquired on PI became the tediatatemof the 3rd defendant-appellant to which both she and the plaintiff werejointly entitled.
The plaintiff and the 3rd defendant thereafter mortgaged the land.The mortgage bond was put in suit and decree was eventually enteredagainst them in a sum of Rs. 2,031 with interest and costs. In order toprevent a forced sale of the land under the decree, the 3rd defendant,who was then living in separation from the plaintiff, made on the 24thMarch, 1950, an application to the District Court of Jaffna in proceedingsNo. D 257 (1D1) for sanction under section 8 of Chapter 48 to sell it byprivate treaty without the consent of the plaintiff. This application(to which the plaintiff was made the respondent) proceeded on the basisthat as the land had been purchased with the 3rd defendant’s dowrymoney, it was her separate property but that the written consent of theplaintiff was necessary, as provided in section 6, before she could disposeof it. Section 8 confers a special jurisdiction on the District Court toauthorise a wife, on an application made by her in that behalf, andafter summary inquiry into it, to dispose of her separate property withouther husband’s consent. But as the land had been acquired during thesubsistence of the 3rd defendant’s marriage, it was tediatatem propertyirrespective of whether it was purchased with her dowry money or not—vide Avitcky Chettiar v. Rasamma1. In the case of tediatatem propertythe husband alone, as manager, would have the right to sell or mortgage-it—Sangarapillai v. Devarajah Mudaliyar et al.2 Hence no questionarose of the 3rd defendant selling the land, whether with the plaintiff’sconsent or by obtaining the authority of the District Court under section8 to do so without his consent.
1 (1933) 35 N. L. R. 313.
3 (1936) 38 N. L. R. I.
34S
WBERASOORIYA, J.—ThavvnaipiU** v, NaiHsh
*- – —
The plaintiff though served with notice of the 3rd defendant's applicationwas absent on the 31st May, 1950, when the District Judge after inquirymade order authorising her to sell the land without the plaintiff’s consent.The order does not set orit the grounds on which it was made, but thefinding that the land formed part of the 3rd defendant’s separate estateas it had been purchased with her dowry money is, I think, implicit inthat order.
Purporting to act under the authority bo given, the 3rd defendant, onthe 13th December, 1950, execrated deed No. 790 (P6) conveying theland to one Kanag&ratnam for Rs. 3,500, and he at the same time conveyedit on deed No. 791 (P7) by way of gift to his niece, the 1st defendant-respondent, whose husband is the 2nd defendant-respondent.
The plaintiff thereafter filed this action in which he asked for a declara-tion that deeds Nos. 790 and 791 are null and void and of no force oravail in law, that the land dealt with on those deeds is the tediatatem, ofthe plaintiff and the 3rd defendant and that the 1st and 2nd defendan tsand their agents and tenants be ejected therefrom and peaceful possessionthereof restored to him. After trial the District Judge gave judgmentfor the plaintiff as prayed for holding that the land is tediatatem and thatin regard to the earlier application made by the 3rd defendant for authorityto sell it without the consent of the plaintiff, the District Court had nojurisdiction to entertain the same and, therefore, the order granting suchauthority was void and consequently deed No. 790 also was void andconveyed no title to the vendee. From this judgment the 3rd defendanthas filed the present appeal.
With all respect to the learned District Judge, I am unable to agreewith his finding that the Court had no jurisdiction to entertain the 3rddefendant’s application in proceedings No. D 257, or to make the orderauthorising her to sell the land without the plaintiff’s consent. Theaverments in the application were, I think, sufficient for the exerciseby the Court of the jurisdiction conferred under section 8 of Chapter 48.See, in this connection, Marjan et al. v. Burah et al.1 The order was,therefore, one which was binding on the parties, subject to appeal. Noappeal was filed by the plaintiff against the order.
Among the changes in Chapter 48 brought about by the Jaffna Matri-monial Rights and Inheritance Amendment Ordinance, No. 58 of 1947,were the repeal of sections 19 and 20 and the substitution therefor of newections 19 and 20. The new section 19 provides as follows—
" 19. No property other than the following shall be deemed to be
the thediathzddam of a spouse :—
(ct) Property acquired by that spouse during the subsistence ofthe marriage for valuable consideration, such considerationnot forming or representing any part of the separate estateof that spouse;
(&) ”* (1948) SI N, L, S. 84 ai 88,
WEERASOOBIYA, J.—TheivanavpUlai v. NattiaK
349
The land acquired on Pi would not be tediatatem property in terms ofthe new section 19 if, as alleged by the 3rd defendant, it was purchasedwith her dowry money. But as Pi was executed before OrdinanceNo. 58 of 1947 came into force, the new section 19 would not apply indetermining the character of that land except on the view that the sectionoperates retrospectively. At the time when the order in proceedingsNo. D 257 was made, this Court had decided in Sachchithanantkan v.Sivaguru 1 that Ordinance No. 58 of 1947 is retrospective in operation.But in 1952 that view was held to be wrong by a Divisional Bench offire Judges in Akilanandanayalci v. Sothinagaratnam2. According to thedecision in the last mentioned case the land which formed the subjectmatter of the application in proceedings No. D 257 would be tediatatemproperty as the character of it has to be determined on the basis of thedefinition of tediatatem in the repealed section 19 of Chapter 48. Notwith-standing that such be the legal position, Mr. Ranganathan, who appearedfor the 3rd defendant, submitted that as the order of the District Courtin proceedings No. D 257 authorising the 3rd defendant to sell the landwithout the consent of the plaintiff involved the finding that it is theseparate property of the 3rd defendant, such finding, even though erroneous,not only was binding on the plaintiff in those proceedings, but alsoprecludes him from re-agitating the same question in the present case.
Learned counsel for the plaintiff did not dispute that the order inproceedings No. D 257 involved the finding that the land is the 3rd defen-dant’s separate property. Since the same question is sought to beraised by the plaintiff in the present case, and in respect of the samesubject matter, the plaintiff would appear to be estopped by the doctrineof res judicata from doing so. But Mr. Thillainathan contended thatas the finding referred to is a wrong decision of law, the doctrine of resjudicata will not operate in the present case. Bor this contention herelied on the dictum in Katiritamby et al. v. Parupathipillai et al.3 thatan erroneous decision on a question of law will not prevent the Courtfrom deciding the same question between the same parties in a subsequentsuit according to law. The dictum was approved in Ounaratne v. PunchiBandai and more recently in Subramaniam v. Kumaraswamy et al.5But while this dictum taken out of its context would appear to supportthe argument of Mr. Thillainathan, a fact which must not be overlookedis that in each of those cases it was also expressly stated that an erroneousdecision on a question of law will operate as res adjudicata quoad thesubject matter of the suit in which it is given, and no further. Theposition is made clear in the judgment of Garvin, A. J. (as he then was)in Katiritamby et al. v. Parupathipillai et al. (supra) where he emphasisedthat the earlier erroneous decision of law in regard to which the plea ofres judicata was unsuccessfully raised was one given in proceedings inwhich the subject matter and the cause of action were different. Inthe present case since the subject matter is the identical land which
1 [1949) 50 N. L. R. 293
a (1952) 53 N. L. R. 385.
B (1955) 57 N. L. R. 130.
® (1921) 23 N. L. R. 209.4 (1927) 29 N. L. R. 249.
350
WEERASOOBIYA, J .^TheivcmaipiOai v. NaMah
figured in the earlier proceedings, it is clear that the relief claimed by theplaintiff in respect of it cannot be granted without virtually setting'aside the decree in those proceedings and also nullifying the transactionsembodied in P6 and P7 and which were, presumably, entered into bythe parties on the faith of the conclusive effect of that decree. In myopinion the dictum in the cases mentioned cannot be accepted withoutthe qualification to which I hare drawn attention, and does not, therefore,avail the plaintiff in the present case.
The case of Madam. v. Nana Andy1 is, no doubt, an exceptional one,where a decree entered in a regular action was declared void at theinstance of the judgment-debtor when it was sought to be executedagainst him, and the plea that the decree operated as res judicata andwas binding on him was rejected on the ground that to give effect to itwould be to go counter to some statutory direction or prohibition. Thertis no analogy between that case and the present case.
Another case relied upon by Mr. Thihainathan is Herath v. The AttorneyGeneral et al. 2 where a decree in a previous action which had been enteredunder section 84 of the Civil Procedure Code in default of appearanceon the part of a plaintiff was held by my Lord the Chief Justice not tooperate as res judicata in a subsequent proceeding inasmuch as therehad been no adjudication on the merits. A different view was expressedon the same question in Mohamado v. Mohitlihamy3. That questiondoes not, however, arise in the present case as the order in proceedingsNo. D 257 was not made under section 84, and any default on the partof the plaintiff in appearing in those proceedings did not relieve the 3rddefendant of the burden of establishing that the property was her separateproperty, or the Court from deciding that question. The order madein those proceedings was, therefore, an adjudication on the merits.
In my opinion the plaintiff is estopped by the operation of the doctrineof res judicata from now showing that the property in question is tediatatemproperty. The judgment and decree appealed from are set aside and theplaintiff’s action is dismissed with costs in the Court below. He willalso pay the 3rd defendant’s costs of appeal.
Siknetamby, J.—I agree.
Appeal allowed.
1 [1949) SO N. L. S. 476.»(19611) 60 N. L. R. 193 at 221.
* (1921) 3 Ceylon Lam Recorder 44,