049-NLR-NLR-V-53-VELUPILLAI-et-al.-Appellant-and-MANOMANY-Respondent.pdf
PE SILVA J-— Vchtpillai v. Manoinany
247
1951Present: Swan J. and de Silva J.VEI/UPILLAI et al., Appellants, and MANOMANY,Respondent-s'. C. 43—D. C. Point- Pedro, 2,761
Thesavalamai—Spouses living in separation—Theiliatheddain acquired by one spouse—
Right of such spouse to entirety of it—Jaffna Matrimonial Rights and
Inheritance Ordinance.
Where a wile who was subject to the Thesavalamai eloped from her husbandand the latter acquired certain immovable property, with his own moneyduring the period of separation—
Held, that a spouse is entitled to the entirety of thediatkeddam property-acquired by such spouse at a time when the spouses were living in separation.It is within the power of such spouse to deal with the entirety of sujjh propertyto the exclusion of the other.
J^.PPEAX« from a- judgment of the District Court, Point Pedro.
C. Thiagalingani, K.C., with IF. D. Thamothergm, for the defendantsappellants.
Y. Arulambalam, for the plaintiff respondent.
Cur. adv. vult.
May 4, 1951. db Silva J.—
This is an action rei vindicatio. The plaintiff in this suit claimstitle to a half share of the land described in the schedule to the plaintand damages. The defendants who are husband and wife deny her titleto any share of the premises and claim the entirety of the land for them-selves. The learned District Judge who tried the case entered judgmentfor the plaintiff as prayed for, but without damages. The defendants
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EE SILVA J.—Velupillai v. Manomany
■appeal therefrom. The point that comes up for. determination is onethat is of some importance under the law of Tesawalami by which theparties to the suit are governed. Put shortly, the chief point in issueis whether or not a spouse is entitled to the entirety of tediatetam propertyacquired by such spouse at a time when the spouses were living in sepa-ration and whether or not it is within the power of such spouse to dealwith the entirety of such property to the exclusion of the other.
No difficulty arises where the general principles apply, for they havebeen considered in the various judgments of this Court. The factsof this case which are admitted are as follows: —One Sundarampillaimarried the plaintiff before the 17th July, 1911, that is the date onwhich the Matrimonial Rights and Inheritance Ordinance (Jaffna)came into operation. In fact it was admitted by Counsel for the partiesthat they were married in the year 1903. The plaintiff eloped withone Gunasekara on the 6th November, 1912, with whom she left forMalaya where she remained till she returned to Ceylon on the 4th March,1931. She went through a form of marriage with Gunasekara on the5th August, 1927 (vide Marriage Ceitificate filed marked D 5). Inthis marriage certificate the plaintiff was described as a spinster andGunasekara as a bachelor. This form of marriage appears to havebeen gone through by these two persons at Matale in Ceylon. Accordingto her evidence given in the District Court, Jaffna, iu case No. 7,213, D4,the plaintiff, since she eloped with Gunasekara to Malaya in 1912, hadcome back to Ceylon in 1920 and 1927 with Gunasekara, and finally in1931, alone. It was in 1927, on her second visit to Ceylon after theelopement, that she went through this form of marriage with Gunasekara.According to her evidence given in the same case Gunasekara died onthe 22nd May, 1929, in Malaya. Sunderampillai, the legally marriedhusband of the plaintiff, whom she deserted in 1912, would appear tohave taken a woman unto himself named Sivapathi after his wife hadleft the Island. The second defendant in her evidence in this case hasstated that so far as she was aware Sunderampillai was married toSivapathi. A child named Savundarammah was born of this union.'Sunderampillai upon deed No. 6,179 of the 26th May, 1926, PI, purchasedthe entirety of this property, a half share of which is now claimed bythe plaintiff being the share that she would be entitled to as Sunderam -pillai’s wife. The marriage between Sunderampillai and the plaintiffwas not dissolved during the life-time of Sunderampillai. Sunderam-pillai died in the year 1939. Before his death Sunderampillai donatedthis property to his daughter Savunderammah upon deed No. 9,773of 1930, D2. Savunderammah upon deed No. 11,344 of 26th November,1944, Dl, conveyed a divided extent of 1J lachams of this land togetherwith another land which adjoins it to the 2nd defendant.
The case went to trial on various issues. Issue No. 3 is the mostimportant one. It runs thus, “ Is this property the separate propertyof Sunderampillai for the reason that it was purchased during the sepa-ration from the plaintiff? ”. The position now is briefly this. Sunderam-pillai and his wife the plaintiff who were married in 1903 separated inthe year 1912. Since then they never lived together as husband said
I.'K SILVA .T.—Vdupillai v. Manomany
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wife. The plaintiff renounced the marftage tie for good when sha-eloped with Gunasekara in the year 1912. She further, in the year 1927,went through a form of marriage with Gunasekara calling herself aspinster. Gunasekara died in the year 1929. Sven in this case shecalls herself the widow of Gunasekara. Sunderampillai, after his wifedeserted him, lived with a woman named Sivapathi, by whom he had achild named Savunderammah. So that it is clear that, from the year-1912, plaintiff and her legally married husband had nothing whateverto do with each other. In fact when giving evidence in D. C. JaffnaCase No. 7,213, the plaintiff stated that Sunderam was her cousin, andthat she stayed on Attabage Estate, an estate near Gampola, with herhusband who was an apothecary. Sunderam was also in the same-estate where Gunasekara was, but she did not know in what capacity.When giving evidence in that case the plaintiff did not even state thatshe was married to Sunderam. It is obvious that although the sepa-ration between Sunderampillai and plaintiff was not mutually arrangedbefore she eloped with Gunasekara, the parties would appear to havereconciled themselves to the position that they were no longer husbandand wife. Each of them went his or her own way. It has been arguedboth in the Court below and here that the property having been acquiredafter the separation, the title to it did not vest in both the .spouses butremained the separate property of the husband who acquired it. Insupport of that proposition we have been referred to an old case reportedin Mutvkisna’s Tesawalami, page 181. The facts of that case areshortly these. The plaintiff and the 1st defendant were wife and husband.They did not live happily together and for ten or eleven years beforeaction was filed tb°’-e was little communication between them, seeingeach other only at intervals and on those occasions quarrelling andseparating again. The plaintiff, the wife, supported herself and herchildren without any assistance from the husband the 1st defendant.While thus separated the plaintiff purchased one of the lands in suitwith her own money derived partly from her dowry property, and'partly with money of her sister’s. The original Court held that theproperty having been acquired by the plaintiff during her separation-from her husband she alone was entitled to the land. That judgmentwas affirmed in appeal.
The facts of the case that we are considering are more weighty in-favour of the person who acquired the property than those consideredin that case for the reason that Sunderampillai and his wife had nocommunication whatsoever and had nothing to do with each otherafter 1912. Tnis case was followed by Ennis A.C.J. and Porter J. in-CheUappa and another v. Valliamma and another 1. The head noteruns thus:—“ Where husband and wife, who are subject to the Tesa–walami, have been living separately, by mutual consent, the husband’has the right to deal, by way of donation, with the entirety of the propertyacquired by him during the separation ”. These two cases were citedin the original Court and the learned District Judge appears to have-laid emphasis on the words “ by mutual consent ”, in regard to sepa-ration. But I do not think that mutuality regarding separation couldi
1 (1923) 1 Times oj Ceylon Law Reports, P- 276.
•250J.'K SIT. VA J.— Vclupillai v. Manomaity
have taken place in this instance before such separation for the plaintiffeloped with Gunasekara. I do not think that one can conceive of ahusband and wife mutually agreeing that the wife should elope witha man. But it is sufficient Jo say that after her elopement renouncingthe marriage tie, parties reconciled themselves to the situation createdby her act. So that we have in this case the elements perhaps in agreater degree, than those considered in Nagatta v. Nagappen and anotherin Mutukisna’s Tesawalami, page 181, and in Chellappa and another v.Valliamma and another (supra).
I may say at this stage that plaintiff did not get into the witness boxand give evidence. She called no evidence whatsoever except producinga certain document, that is, the deed of transfer upon which Sunderam-pillai acquired this property in the year 1926. The oral evidence givenby 2nd defendant stands uncontradicted. No' evidence was led by theplaintiff to show that her dowry property was utilised by Sunderampiliaito acquire this property, and, it is reasonable to hold that Sunderam-piliai had purchased this property with his own money in the year 1926,fourteen years after his wife had left him and gone to Malaya. Variousauthorities have been cited to us and the two cases referred to by meare in point. I think the principle laid down in those two cases is basedon the spirit of the Tesawalami. It is not necessary to consider themuch mooted point whether the husband who has the right to managethe tediatetam property may have the right to donate or to conveyfor valuable consideration or mortgage, &c., the said property.
The conclusion I arrive at is that this was the separate property ofSunderampiliai he having acquired the same by purchase with his ownmoney during the period in which the spouses lived in separation. Thatbeing so, he had the right to dispose of it in any manner he liked. Thedonee Savunderammah from the year 1930 possessed this property till shesold it in 1944 to the 2nd defendant who paid Rs. 15,000 as considerationfor this land and another.
There is no evidence before Court that the 2nd defendant was anyother than a bona fide purchaser for valuable consideration. The 2nddefendant in her evidence stated that as far as her knowledge wentSunderampiliai was married to Sivapathi, and that they lived as husbandand wife. The plaintiff all throughout appears to have ignored herlawful husband except when she came to Court to claim a half shareof what her husband had acquired. There is no evidence whatsoeverthat the plaintiff ever possessed any share of the land before she cameto Court or asserted title thereto. I
I therefore would answer issue No. 3 in the affirmative. On the question-of prescription too it has to be answered in favour of the 2nd defendant.The plaintiff's action is dismissed both here and in the Court below“with costs.
Swan J.—I agree.
Appeal allowed.