KEUNEMAN J.—Velan Alvan v. Ponny.
1939Present: Keuneman and de Kretser JJ.
VELAN ALVAN v. PONNY et al.
343—D. C. Jaffna, 11.091.
Tesawalamai—Sale of property by one spouse to another—Tediatetam—Jaffna Matrimonial Rights and Inheritance Ordinance, No. 1 of 1911,s. 19 (a)—Consideration in a deed—Oral evidence to contradict terms ofdocument—When allowed—Evidence Ordinance, s. 92.
Property acquired by one spouse from the other for valuable considera-tion is tediatetam property within the meaning of section 19 (a) of theJaffna Matrimonial Rights Ordinance, No. 1 of 1911.
Oral evidence that the consideration in a deed is different to thatstated in it cannot be admitted in a case except where the validityof the document is in question or where relief was sought in respect ofthe document itself.
Oral evidence is not allowed where the effect of the deed'comes up for consideration incidentally.
Lunaiha Umma v. Hameed (1 C. W. R. 30) referred to.
PPEAL from a judgment of the District Judge of Jaffna.
N. E. Weerasooria, K.C. (with him S. Subrahamanyam), for plaintiff,appellant.
N. Nadarajah (with him P. £ W. Abeywardene), for defendants,respondents.
Cut. adv. vult.
July 20, 1939. Keuneman J.—
In this case the plaintiff brought action against the defendants (a)for a declaration that he was entitled to an undivided one-eighth share ofcertain premises. He further prayed (b) that deed P 4, No. 5,016, datedJune 1, 1936, executed by the first defendant in favour of the second andthird defendants, be declared to have been executed secretly andcollusively without notice to the plaintiff and that the same be declarednot valid under the law of Tesawalamai, and (c) for an adjudicationthat the consideration mentioned in the said deed was fictitious con-sideration for the share conveyed and that the market value was onlyRs. 540, and (d) for an order on the second and third defendants toconvey the share in question to the plaintiff. In substance, the plaintiffas a co-owner claimed the right of pre-emption under the Tesawalamai.
The following issues were framed : —
“ (1) Is deed No. 841 of January 23, 1929, supported by valuableconsideration?
If not, is the property conveyed tediatetam within the meaning of
Ordinance No. 1 of 1911 or is it separate property of the firstdefendant?
As deed No. 5,016 of June 1, 1936, purports to convey a divided
northern half of the entire land, is the present action for pre-emption of an undivided half share or quarter share of the entireland maintainable?
KEUNEMAN J.—Velan Alvan v. Ponny.
In case plaintiffs succeed in this action, are the defendants
entitled to compensation for improvements made? If so, in
Is deed No. 841 dated January 23, 1929, a deed of sale or a deed of
What is the market value of the share sold by the first defendant
to second and third defendants?
What is the share of the land, dealt with by deed No. 5,016 of
The learned District Judge dismissed the plaintiff’s action with costsand the plaintiff appeals.
In his judgment the District Judge held that the first defendantacquired the premises in question from her husband for valuable considera-tion after her marriage by deed P 2 of January 23, 1929, and that theproperty in question thus became the tediatetam property of the wife,and in consequence of section 20 of Ordinance No. 1 of 1911 a half shareof the property reverted to the husband. On the death of her husbandhis half share devolved upon his brothers and sisters, and the plaintiffthus became entitled to a one-eighth share of the property. The DistrictJudge further held that it was not open to the defendants to lead oralevidence to prove that deed P 2 was not given for valuable consideration,in view of the statement in the deed that it was a transfer for valuableconsideration, namely, a sum of Rs. 1,000, being the dowry money of thefirst defendant. The District Judge held that the defendants wereprecluded by section 92 of the Evidence Ordinance from leading suchoral evidence to change the character of the transaction. He heldfurther that the first defendant’s transfer P 4 in favour of the secondand third defendants purported to convey not the whole land but adivided northern block, and stated that the first defendant, who wasonly entitled to an undivided half share of the property, had no authorityto mark out and sell a divided block. The District Judge held that thefirst defendant could not be held to have transferred an undivided shareto the second and third defendants, and that the right of pre-emptiononly applied to the sale of undivided shares, and that the plaintiff’saction accordingly failed.
I do not think the District Judge’s argument on this last point can besupported. On an examination of the deed P 4, I think the DistrictJudge was right in holding that the first defendant purported to sell adivided northern block out of the property in question. If we presumethat the first defendant was entitled in fact to an undivided half shareof the whole property, it is no doubt strictly true to say that the firstdefendant had no title to sell the whole of a divided block, but this doesnot mean that the first defendant’s deed was devoid of any legal effect.The result that would follow in law is that the second and third defendantswould be entitled to an undivided half share of the northern block only,and not of the whole land. I think this must be regarded as a sale of theindivided share of the property, such as would support an action forpre-emption.
The ground on which the District Judge rested his judgment accord-ngly failed. Counsel for the respondents, however, argued that the
KEUNEMAN J.—Velan Alvan t>. Ponny.
District Judge’s findings on the other aspects of the case were wrong.He contended in the first place that section 19 of Ordinance No. 1 of1911 only applied to acquisitions for valuable consideration by eitherof the spouses from strangers, and not to acquisitions from each other.He pointed out that under section 9 of that Ordinance it was open to thespouses to make voluntary grants, gifts, and settlements to and uponeachother, and argued that the effect of such transactions was to vest theother spouse with title, although such title was made subject to thedebts and engagements of the transferring spouse. He further arguedthat the interpretation given by the District Judge to section 19 wouldlead to an anomalous state of affiairs. However clear may be theintention of one spouse that the whole property should be vested in theother, if the transaction is for valuable consideration, half wouldautomatically revert to the transferring spouse in view of the fact thatit was tediatetam property. I think Counsel for the respondents isprobably right in arguing that this case was not in the contemplationof the draftsman of the Ordinance. The question, however, we have todecide is whether the meaning of the words of section 19 is sufficientto cover the case of an acquisition by one spouse of the property of theother for valuable consideration. The language used is undoubtedlyvery wide, viz., “ (a) property acquired for valuable consideration byeither husband or wife during the subsistence of marriage ”. It was opento the draftsman to restrict that language to acquisitions from strangers,but he has not done so. I am of opinion, in view of the language used,that it is not possible for us to say that it does not cover the case of onespouse acquiring property from the other for valuable consideration,and however unfortunate the result may be, I think we must uphold theinterpretation given by the District Judge. I may add that the languageof sections 17 and 18 supports this interpretation. Under these sectionsproperty received for pecuniary consideration does not fall within theclass of “ property derived from the father’s side ” or “ property derivedfrom the mother’s side ”. All such property if received during thesubsistence of the marriage would, I think, be clearly tediatetam property.Again, the decision of the Divisional Court in Avitchy Chettiar v. Rasamma'that property acquired by a wife during the subsistence of themarriage out of money which formed part of the separate estate istediatetam property is in keeping with the view I have expressed. (Seethe argument of Garvin A.C.J.)
Counsel for the respondents disputed one further finding of the DistrictJudge, namely, his exclusion of the oral evidence to show that deed P 2was not given for valuable consideration. In the recitals of deed P 2,the vendor husband stated that he had previously appropriated andspent a sum of Rs. 1,000, being the dowry money of his wife, and in theoperative clause the vendor made the conveyance “ in consideration ofthe sum of Rs. 1,000 already received ” by him from his wife. Theconsideration stated in the deed was valuable consideration within themeaning of section 19. The wife Ponny in this case gave evidence tocontradict this statement, but the District Judge held that such evidencewas not admissible, in view of section 92 of the Evidence Ordinance.
■ 35 N. L. K. 313.
KEUNEMAN J.—Velan Alvan v. Ponny.109
Counsel for the respondents argued that he was entitled to lead oralevidence under Proviso (1) to section 92, and that what he was seekingto establish was “ want or failure of consideration He citedWoodroffe and Ameer Ali on Evidence, 9th ed., p. 660:—“The sectionprevents the admission of oral evidence for the purpose of contradictingor varying the terms of a contract, but does not prevent a party to acontract from showing that there was no consideration, or that theconsideration was different from that set out in the contract. There are, however, other words in the proviso which we have toconsider. What is provable under the proviso is any fact “which wouldinvalidate any document, or which would entitle any person to any decreeor order relating thereto Now it is clear in this case that no attemptis being made to “invalidate” the document. On the contrary allparties are agreed that the document is valid, and the only question fordetermination is the effect of the document. Further, I am of opinionthat the present action is not an action to obtain any decree or order“ relating thereto I think that these words mean “ decree or orderrelating to the document ”. In the present case there is no claim relatingto the document. The effect of the document only comes up fordetermination incidentally in connection with the proof of the plaintiff’stitle and of his right to claim pre-emption. I do not think that thewords “ relating thereto ” apply to such a case. I think oral proof isrestricted to cases where it is sought to prove that the document isinvalid, or to obtain a decree or order directly relating to the document,e.g., a decree for rectification of a document, and that oral evidenceis not allowable where the effect of a document incidentally comes upfor determination.
No case has been cited to us where oral evidence has been admitted toprove that the consideration was different from that stated in the deed,except where the validity of the document was in issue, or where reliefwas being sought in respect of the instrument itself. An instance of thelatter kind is to be found in Perera v. James Appuhamy', where theplaintiff sued the defendant for reconveyance of premises conveyed tothe defendant on a deed. The deed on the face of it purported to be a sale,but the plaintiff was held entitled to lead evidence to show that no consider-ation passed, and that the conveyance was on trust. As I said beforean action for rectification of a deed would be another instance. I thinkwe are driven to the same conclusion, when we take the words “ want orfailure of consideration ” in their context, viz., “ such as fraud, intimida-tion, illegality, want of due execution, want of capacity in any contractingparty, the fact that it is wrongly dated, want or failure of consideration,or mistake in law or fact ”. These are grounds on which a documentcan be declared invalid, or on which relief can be granted in respect ofthe document. I cannot imagine proof, for instance, of fraud beingadmitted for a purely collateral purpose.
The nearest case to the present one which I have been able to find isLunaiha Umma v. Hameed’. There, a Moorish lady sued her husbandfor the sum of Rs. 7,000, being proceeds of a sale of property belonging
» 3 C. W. R. 341.% 1 C. V/. R. 30.
Hunter v. de Silva.
to her. The defendant pleaded that this sum was by agreement betweenhim and his wife to be taken as consideration of the transfer to her and toher child of certain other property belonging to him. The transfer inquestion purported to be “ in consideration of love and affection ..
… and for divers other good causes and considerations". The last
words were held to be merely a notarial, flourish, and the Supreme Courtheld that there was only one answer, and that in the negative, to theapplication “ to show by viva voce evidence, that what purports to be,on the face of it, an out-and-out deed of gift by her husband to her on theground of natural love and affection, was in fact a transaction for otherand valuable consideration The Supreme Court, however, gave noreasons for this decision.
I am of opinion that the claim to lead oral evidence in this case for thepurpose of showing that the deed P 4 was given for a considerationdifferent from that stated in the deed cannot be permitted.
The issues in the case will be answered as follows : —
Need not be answered, except to say that the property conveyed
by P 2 was the tediatetam. property of the wife.
Deed 841, P 2, is a deed of sale.
(7) Deed 5016, P 4, dealt with an undivided half of the northern blockof the land in question.
The District Judge has not dealt with issues (4) and (6).
I allow the appeal, and order that the plaintiff be declared entitledto an undivided one-eighth share of the premises mentioned in paragraph(1) of the plaint. I also order that the case be remitted to the DistrictCourt for the determination of issues (4) and (6). The District Judgemay decide these issues on the evidence already led, or if he thinks fit,may permit the parties to lead further evidence. The plaintiff-appellantis entitled to the costs of the appeal. The costs of the trial already heldwill be in the discretion of the District Judge.de Kretser J.—I agree.
VELAN ALVAN v. PONNY et al