53 NLR 385

• Jurisdiction: Sri Lanka
• Court: Court of Appeal (Sri Lanka)
• Citation: 53 NLR 385
• Date: 05 March 1952
• Case Number: NLR53V385
• Type of Document: Case report

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1952 Present: Rose C.J., Nagalingam S.P.J., Gratiaen J., Pulle J.
and Choksy A.J.

AKILANDANAYAKI, Appellant, and SOTHINAGARATNAM
et al., Respondents

S. C. 307-D. C. Jaffna, 3,033

Thesavalamai-Thediatheddam-Jaffna Matrimonial Rights and Inheritance Ordinance, No. 1 of 1911 (Cap. 48), as 6, 14, 19, 20)-Amending Ordinance No. 38 of 1947 Retrospective effect-Interpretation Ordinance (Cap. 2), e. 6 (3).

Held, (i) that the provisions of the Jaffna Matrimonial Rights and Inheritance (Amendment) Ordinance, No. 58 of 1947, which came into force on 3rd July, 1947, do not operate retrospectively so as to affect the rights of persons previously acquired under the provisions of the Jaffna Matrimonial Rights and Inheritance Ordinance, No. 1 of 1911 (Cap. 48).

(ii) that the earlier rulings to the contrary effect in Sachchithananthan v. Sivaguru 1[(1919) 50 N. I. R. 293.], Kathirithamby v. Subrammain 2[(1950) 52 N. L. R. 62.], and Sellappah v. Sinnadurai 3[(1951) 53 N.L. R. 121. 17] were wrongly decided.

APPEAL from a judgment of the District Court, Jaffna. This case was referred under section 51 of the Courts Ordinance for the decision of a Bench of five Judges.

H. V. Perera, Q.C., with C. Shanmuganayagam, for the plaintiff appellant.

C. Vanniasingham, with A. Nagendra, for the 1st defendant respondent.

S. J. V. Chelvanayakam, Q.C., with A. Vythialingam, for the 2nd defendant respondent.

H. W. R. Weerasooriya, Acting Solicitor-General, with G. L. L. de Silva, Crown Counsel, as amicus curiae.

Cur. adv. vult.

March 5, 1952. ROSE C.J.-

The principal point that arises for determination in this case is whether all or any of the provisions of the Jaffna Matrimonial Rights and In heritance (Amendment) Ordinance. No. 58 of 1947, are retrospective in their effect. I have had the advantage of reading the judgments of my brothers Nagalingam and Gratiaen and find myself in agreement with the reasons and conclusions contained in the judgment of the latter.

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In my view the matter is concluded by the imperative provisions of section 6 (3) of the Interpretation Ordinance (Cap. 2) which read: " Whenever any written law repeals either in whole or part a former written law, such repeal shall not, in the absence of any express provision to that effect, affect or be deemed to have affected-

(b) any .... right .... acquired .... under the repealed written law ;

(c) any action, proceeding, or thing pending or incompleted when the repealing written law comes into operation, but every such action, proceeding, or thing may be carried on and completed as if there had been no such repeal. "

It will be noted that the words " in the absence of any express provision to that effect " used in our Ordinance are more restrictive in their scope than the words " unless the contrary intention appears " used in the corresponding English statute.

I find myself unable to agree with the view that one can read into section 14 of the Jaffna Matrimonial Rights and Inheritance Ordinance, No. 1 of 1911 (Cap. 48), an express provision which would have the effect of rendering the repealing law contained in the amending Ordinance of 1947 retrospective in its application so as to interfere with rights that had become vested or been acquired prior to that date. Such a view would seem to ignore the fact that between 1911 and 1947 there was a law (contained in the repealed sections 19 and 20) which determined the rights of parties till the amending law was passed. In my opinion, one would have to look to an express provision in the repealing law itself and it is clear that the amending Ordinance of 1947 contains no such provision.

Having regard to my view of the amending Ordinance, I am of opinion that it is unnecessary and indeed irrelevant to consider whether the effect of the amending Ordinance is more in accord with the spirit of the customary law of Thesawalamai than was the decision in the case of Avitchy Chettiar v. Rasamma 1[(1933) 35 N. L. R. 313.].

It is unnecessary for me to examine the other aspects of this question as they have been fully dealt with in the judgment of my brother Gratiaen with whose views my brothers Pulle and Choksy and I are in agreement.

The decision of this Court upon the appeal referred by me under section 51 of the Courts Ordinance is therefore as follows :-

(a) that the provisions of the Jaffna Matrimonial Rights and In heritance (Amendment) Ordinance, No. 58 of 1947, which came into force on 3rd July, 1947, do not operate retrospectively so as to affect the rights of persons previously acquired under the provisions of the Jaffna Matrimonial Rights and Inheritance Ordinance, No. 1 of 1911 (Cap. 48) ;

(b) that the earlier rulings to the contrary effect in Sachchithananthan v. Sivaguru2[(1949) 50 N. L. R. 293], Kathirithamby v. Subramaniam3[(1950) 52 N. L. R. 62.] and Sellappah v. Sinnadurai 4[ (1951) 53 N. L. R. 121.] were wrongly decided;

(e) that this appeal should be allowed with costs and the case remitted for trial as indicated in the judgment of my brother Gratiaen.

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NAGALINGAM S.P.J.-

This case is also one that relates to rights of persons governed by the Jaffna Matrimonial Rights and Inheritance Ordinance but is different from the case of Kandavanam v. Nagammah et al.1[S. C. 166, D. C. Jaffna No. 3,737 [S. C . Minutes of March 5, 1952].] and other cases in which this Court had to consider the effect of the amending Ordinance No. 58 of 1947. The facts here are that the plaintiff-appellant, who was married to the 1st respondent in 1925, obtained a judicial separation from him in 1943. She instituted this action in 1946, claiming a half-share of the lands described in the schedule to the plaint on the basis that the said properties formed the thediatheddam of her husband. She also made the 2nd respondent a party to the proceedings as she alleged that the 2nd respondent, the father of her husband, had purchased the lands in his name but in trust for her husband. The defendants denied the allegations that the properties were purchased by the 2nd respondent in trust for the 1st respondent or that the said properties constituted the thediatheddam of the 1st respondent. There were also other pleas raised by the defendants which it is unnecessary to notice for the purpose of the present appeal.

By the time the case came up for trial, the amending Ordinance No. 58 of 1947 had been enacted and the effect of the amending provisions had been the subject of a decision by this Court in the case of Satchithanandan v. Sivaguru 2[(1949) 50 N. L. R. 293.]. In that case, in delivering judgment I expressed the opinion that the amending Ordinance was retrospective in its operation. Counsel for the respondent in the lower Court taking his stand on the decision in the above case successfully contended before the learned District Judge that the rights of the plaintiff were affected by the new section 20 introduced by the amending Ordinance and that the plaintiff could not therefore succeed. The learned District Judge upheld the contention and has dismissed the plaintiff's action.

The question that arises for decision is whether the amending Ordinance has application to the rights of the plaintiff. The new sections 19 and 20 introduced by the amending Ordinance can have no application to the present case, because the scope of their operation, as I have set out fully in my judgment in the case of Kandavanam v. Nagammah et al. (supra), extends only to the estates of persons who may die after the commencement of the principal Ordinance. There is no estate here in regard to which the new provisions can apply, for both spouses are alive. The amending sections, therefore, in no way refer to the rights of the plaintiff. They are applicable to the estates of deceased persons only and not to the rights of spouses whose marriage tie may have been dissolved by a decree a vinculo matrimonii or who may have been judicially separated a mensa et thoro. Nor can it be said that any inference can be drawn from section 7 of the amending Ordinance, for the amendments made do not relate, as already Stated, to the dissolution of marriage by Court or to judicial separation. If, however, one attempted to draw an inference from the language of this section, such for instance as that the rights of a spouse-to take the case pertinent for our purpose-who has been judicially separated before the amending Ordinance came into operation have been taken

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away, one would fall into an error of the magnitude and character referred to by Lord Davey in the case of Guardians of the Poor of West Derby Union v. The Metropolitan Life Assurance Society and others 1[(1897) L. R. A. C. 647.] and adverted to in the course of my judgment in the case pf Kandavanam v. Nagammah et al. (supra).

It will be seen that the amendments say nothing one way or the other with regard to the rights of spouses who are judicially separated, and it will be wholly indefensible to base any deduction upon the absence of a provision. The inference, if any, in reality is sought to be drawn from the circumstance of the subsequent repeal of the provision in the earlier section 20. Such an inference, again, will be one which cannot be sustained or supported upon any logical basis ; so that from a consideration neither of the new section 20 nor of section 7 of the amending Ordinance can it be said that the amendments regulate the rights of the plaintiff. Besides, those rights had accrued to and vested in her at the date of the Court entering a decree for judicial separation in 1943, and by virtue of section 6 (3) (b) of the Interpretation Ordinance those rights cannot be said to have been taken away by the repeal of the old section in the absence of an express provision to that effect. There is no such provision on which one can lean. Furthermore, the plaintiff's action was pending when the repealing written law came into operation, and...