V. K. SUBRAM ANI AM, AppeUafi^v-flud
K.KADIRGAMAN, Respondent?
Privy Council Appeal No. 8 of 1909
S. G. 2S0j63 (F)—D. G. Point Pedro, 6471
Thcsavalamai—Tcdintetnm—Devolution on death intestate of non-acquiring spouse—Jaffna Matrimonial Bights and Inheritance Ordinance (prior to amendment byOrdinance No. 5S of 1047)—Sections 6, 7, 19, 20, 21 and 22—Sections 10 and20 as amended by Ordinance No. 58 of 1947—Whether Amending Ordinance hasretrospective effect—Interpretation Ordinance,~s. 6 (8)—)l't7/s Ordinance, s. 7.
tVhero ft half share of tcdialctam property acquired by a husband had alreadyautomatically vested in his wife (as the non-acquiring spouse) by virtue ofthe provisions of Sections 19 and 20 of tho Jaffna Matrimonial Rights andInheritance Ordinance of 1911, tho subsequent repeal of Sections 19 and 20 bytho Amending Ordinance No. 5S of 1947 did not operate retrospectively so asto divest tho wife of that share. And if the wife dies intestate after (lie dalewhen the Amending Ordinance No. 5S of 1947 eamo into operation, thodevolution of her share upon her death is regulated solely by Sections 21 and22 of the old Ordinaneo and not by tho new Section 20 of tho amendedOrdinance.
Kumarasicamy v. Subramaniam (56 N. L. R. 44) approved.
Appe AL from a judgment of the Supreme Court.
M. P. Solomon, for the substituted defendant-appellant.
Walter Jayaivanlena, Q.G., with II. K. JIandoo and George Candajipa,for the plaintiff-respondent.
Cur. adv. vult.
October 6, 1969. [Delivered by Lord Diplock]—
This appeal is about land which was acquired by a husband, the originaldefendant, at various dates between 1919 and 1945 during the subsistenceof his marriage with a wife who died intestate in 194S. Her administratoris the plaintiff in the action. The husband died during tho lengthypendency of this action and his son b}T an earlier marriage was substitutedas defendant.
Husband and wife were Tamils originating from the Jaffna area and thelaw winch governed their matrimonial rights and inheritance is knownas Thesaicalamai. At the date of acquisition of the various parcels of
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LORD DIPLOCK—Subramaniam v. Kadirgaman
land which are the subject of tin's suit Thesaicalnmai was regulated bythe Jaffna Matrimonial Rights and Inheritance Ordinance of 1911 (horeincalled “ the Principal Ordinance ”) ; but on 4th July 1947 after the landhad been acquired and before the death of the wife the PrincipalOrdinance was amended.
Under the customary law of Thesciualamai as it was before 1911 profitsarising from the separate estate of either spouse during the subsistenceof tho marriage and property acquired out of those profits were knownas tediatetam. It is unnecessary for the purposes of the present appealto consider prccisoly what property was comprised in tediatetam before1911 or what were the legal incidents attaching to it. Section 19 of thePrincipal Ordinance defined what projicrty should thereafter constitutethe tediatetam of each spouse and section 20 provided what legal incidentsshould attach to it.
Section 19 of the Principal Ordinance was as follows:
“ 19. The following property* shall be known as the tediatetamof any husband or wife—
property acquired for valuable consideration by either husband
or wife during the subsistence of marriage ;
profits arising during tho subsistence of marriage from the
property of any husband or wife.”
Paragraph (a) of this section brought within the definition of theexpression “ tediatetam ” as used in that Ordinance property which wasnot included in tediatetam under the customary law of Thesawalamai.It is common ground that the land which is the subject of dispute fellwithin this extended definition though it would not have been includedin the tediatetam of either spouse under the previous customary law. Itwould have been tho separate property of the husband.
Section 20 of the Principal Ordinance was as follows :
“ 20.(1) The tediatetam of each spouse shall be properly common
to the two spouses, that is lo say. although, it is acquired by eitherspouse and retained in his or her name, both shall be equally entitledthereto.
(2) .Subject to the provisions of the Tesaicalamai relating to liabilityto bo applied for payment or liquidation of debts contracted by thespouses or cither of them on the death intestate of either spouse, one-halfof this joint property shall remain the property of the survivorand the other half shall vest in the heirs of the deceased ; and onthe dissolution of a marriage or a separation a mensa el thoro, eachspouse shall take for his or her own separate use one-half of tho joint.property aforesaid.”
LORD DTPLOCK—Subramaniatn v. Kadirgamnn
It is common ground that the cUbct of sub-section (1) of this sectionwas to vest in the non-acquiring spouse from tho moment of acquisitionan undivided half-share in the property acquired by the other spouse duringthe subsistence of the marriage. Sub-section (2) provided inter alia fortho devolution of this half-share upon tlie death intestate of each spouse.Although referred to indifferently in the section as “ joint-property ” and‘‘ propert' common to the two spouses ”, section 7 of the Wills Ordinanceprovides in effect that property owned jointly shall be held in commonand in particular that the undivided share of a deceased co-owner shallform part of his estate.
It follows from this that the wife acquired an immediate undividedhalf-share in each of the parcels of land to which this appeal relates fronttlie moment, at which they were acquired; and that tin’s 2>rop?'ictarvlight, had vested in her before 4th July 1947. It is not in their Lordships’view necessary to consider the precise legal incidents attaching to itunder the Principal Ordinance save to note that her undivided half-sharewould have devolved upon her heirs upon herndcath'intestate: – – –
Upon 4th July 1947 during the wife’s lifetime, Ordinance No. oS of1947 (herein called the Amending Ordinance ”) came into force.Among tho amendments to the Principal Ordinance it repealedsections 19 and 20 and substituted therefor new sections in (hefollowing terms :
” 19. No property other than the following shall be deemed to bethe thedialheddam of a spouse :
Property acquired by that spouse during the subsistence of the
marriage for valuable consideration, such consideration notforming or representing any part of the sejjarate estate of thatspouse.
Profits arising during tho subsistence of the marriage from the.
separate estate of that spouse.”
“ 20. On the death of either spouse one half of the thedialheddamwhich belonged to the deceased spouse, and lias not been disposedof by last will or otherwise, shall devolve on the surviving spouseand the other half shall devolve on the heirs of the deceasedspouse.”
The new section 19 excluded from the definition of tediatelam propertywhich had previously been included in the definition of tho same wordin the former section 19 of the Principal Ordinance. It is common groundthat the land which is the subject of this appeal did not fall within thenew definition of tedwtekun. The new section 20, in contrast to theformer section 20 of tho Principal Ordinance does not deal with any legalincidents which were thereafter to attach to tediatetam as newly definedother than its devolution upon the death of a spouse intestate. Importantamendments to earlier sections, 6 and 7, of tho Principal Ordinance,
LORD DIPLOCK—Subramaniam v. Kadirgaman
however, altered the legal incidents attaching during a spouse’s lifetimeto property which foil within tho new definition of tedialetam, though intheir Lordships’ view it is umiccessary for the purpose of the presentappeal to consider those alterations in detail.
It is a potential source of confusion that tho single expression“ tediatelcim ” has been used to describe property falling within a definitionof which the scope has been different at different periods viz. before thePrincipal Ordinance was enacted in 1911 ; between 1911 and 4th July1947; and after 4th July 1947. Property such as the land at present insuit which was correctly described as “ ted ia tel am ” during the periodfrom 1911 to 4th July 1947 may cease to bo entitled to that label after thelatter dato. But the loss of the label docs not divest either spouse ofthe proprietary rights in the land which had already vested in them byvirtue of its status as “ tediatelcim ” at the date at "which it was acquiredbefore the definition of “ tedialetam ” was altered bj' the /UnendingOrdinance. This was the decision of the Supreme Court of Ceyloncomposed of five judges in Akilandanayaki v. Solhinagaralnam 1. Inthat case it was held that section 6 (3) of tho Interpretation Ordinanceprevented sections 19 and 20 of the Amending Ordinance from affectingany proprietary right of a spouse which had been already acquired undertho repealed sections 19 and 20 of the Principal Ordinance before thedate of their repeal.
It lias not been contended in the present appeal that the decision in theAkilandanayaki case was wrong. Their Lordships accept it as correct.It therefore follows that at tho date of her death in 194S the wife was stillentitled to an undivided half-share in the land in suit. But in theirLordshijis’ view it would no longer bo correct after tho 4th July 1947 toattach either to the land in suit or to her half-share in it the label“tedialetam ”. It is common ground that the land in suit itself did notfall within the definition of “tedialetam'’ in the new section 19 beeauseit was acquired by tho husband for valuable consideration which formedor represented part of his separate estate. Neither in their Lordships’view did the wife’s half-share in it fall within tho new definition becauseher half-share was not acquired by her for valuable consideration norwas it profits arising during the subsistence of the marriage. The newsection 20, which applies only to property within tho now definition of
“ tedialetam ” in section 19, accordingly did not npjily either to tho landor to the wife’s half-share in it which, had vested in her before thoAmending Ordinance was passed.
How thon did her half-share devolve upon her death intestate ? Bj*tho date of her death section 20 of the Principal Ordinance had beenrepealed and could no longer affect the devolution of her half-share. But
1 {1052) 53 N. L. JR. 3S5.
LORD DIPLOCJv—Subramaniam v. Kadirgaman
it formed part of (ho property to which she was entitled at the dato ofher death. Its devolution was accordingly regulated by the general:provisions as to inheritance contained in sections 21 el seq of th'c PrincipalOrdinance no no of which was amended bj7 the Amending Ordinance-As the deceased wife left children surviving her tho relevant sections aresections 21 and 22, which aro in the following items :
"21. Subject to the right of the surviving spouse in tho precedingsection mentioned, the right of inheritance is divided in tho followingorder as respects (a) descendants, (6) ascendants, (c) collaterals.
22. Children, grandchildren, and remoter descendants are preferentto all others in tho estato of the parents. All the children takoequally per capita ; but the children or remoter issue of a deceasedchild take per stirpes.”
Under these sections the wife’s half-share in th el amis i n~sui t devolve-upon her children upon her death intestate and the plaintiff asadministrator of her estato is entitled to recover her share from tho estateof her husband who is now also deceased.
In so deciding their Lordships are following the decision of tho SupremoCourt of Ceylon in Kumaraswamy v. Subramaniam1 about other landin respect of which the plaintiff claimed that the deceased wife hadsimilar proprietary rights to those asserted in the present appeal. Thogrounds of that decision were succinctly stated by Gratiaen J. at p. 47as follows :
" tho new sections 19 and 20 have no bearing on the present problem.
A half share of tho tediatetam property acquired by [the husband]in 1933 and 1943 had automatically vested in [the wife] ’(as thenon-acquiring spouse) under tho old Section 20, and the subsequentrepeal of tho old Section 20 did not operate to divest her of thatshare. Tho devolution of [tho wife’s] share upon her death in 1948was regulated solely by Section 21 of tho Principal Ordinance becausetho new section 20 has no application to tho case.”
Their Lordships are, in effect, asked in tho present case to over-rulethis decision ; but in their view its reasoning is sound and decisive of thepresent claim also. They will accordingly humbly advise Her Majestythat this appeal should bo dismissed. The appellant must pay therespondent’s costs of the appeal.
Appeal dismissed*
1 {1954) 56 N. L. It. 44.
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