AVITCHY CHETTIAR v. RASAMMA

• Jurisdiction: Sri Lanka
• Date: 20 December 1933
• Type of Document: Case report

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1933 Present: Garvin A.C.J., Dalton and Drieberg JJ.

AVITCHY CHETTIAR v. RASAMMA

240-D. C. Kurunegala, 13,636

Thesawalamai-Proprety acquired by wife out of her dowry-Is it Thediathetam -Jaffna Matrimonial Rights and Inheritance Ordinance, No. 1 of 1911, s. 21.

Under the Thesawalamai, property acquired by a wife during the subsistence of the marriage out of money which formed part of her separate estate, is Thediathetam property, within the meaning of section 21 of the Jaffna Matrimonial Rights and Inheritance Ordinance of 1911.

THIS was an action brought by the plaintiff under section 247 of the Civil Procedure Code to have certain premises declared liable to be seized and sold in execution of a decree obtained against the intestate estate of one V. C. Kanagasabai. The premises were claimed by Rasamma, the widow of the deceased, as being her separate property purchased by her upon a deed bearing No. 1,669 of November 3, 1924.

Kanagasabai and Rasamma were natives of Jaffna to whom the Thesawalamai applied and were married on September 10, 1919. It was found as a fact that the consideration for the transfer was paid by Rasamma out of money which formed part of her separate estate, viz., the cash dowry which was given to her by her parents. The learned District Judge held that the premises were not liable to be sold in execution of the husband's debts and dismissed the plaintiff's action.

H. V. Perera (with him Rajapakse), for plaintiff, appellant.-The land in this case was purchased in the name of the wife with her dowry money. The marriage was after 1911 and the Thesawalamai Ordinance, No. 1 of 1911, applies. That Ordinance amends the previous law. Sections 21 and 22 govern this case. This property comes under 21 (a), i.e., property acquired for valuable consideration during the subsistence of the marriage. The Thediathetam of each spouse is property common to both spouses. Older decisions before the new Ordinance say that money of either spouse which is earmarked and is converted into other property remains the property of the spouse to whom the money belonged and does not become Thediathetam (Jiveratnam v. Murugesu1[1 N. L. R. 211]. In Nalliah v. Ponnammah 2[22 N. L. R. 198.] it was held that the old law was not changed.

[DALTON J.-Do you suggest that the meaning of the word Thediathetam has been changed by this Ordinance?]

Yes. The term is defined in legal phraseology which has a very definite meaning (Thamotheram v. Nagalingam 3[31 N. L. R. 257.]). The definition is exhaustive. All that need be ascertained is when the property was acquired and whether it was for valuable consideration. It does not matter from where the consideration comes. One cannot limit it to valuable consideration which is itself thediathetam. As long as community of property subsists there will be no certainty with regard to title to property if one had to inquire with what money the property was purchased.

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[DALTON J.-If a person has money before marriage and converts it into property during marriage he loses it?]

That is so. Even under the Marriage Ordinance the immovable property of the wife is hers while the movables belong to the husband. But if a wife during marriage sells her property the money will vest in the husband. Every acquisition must be out of the funds of one or other or both of the spouses. The character of such property will be the character of the fund with which it was acquired. If the character of the property acquired depends on the source of the consideration there would be no thediathetam at all. There is no common property at the time of marriage.

[DALTON J.-The thediathetam of the old law is defined in section 1.]

That does not correspond with the definition in section 21. Thediathetam there includes only profits arising out of property. Freedom of alienation is essential to property.

R. L. Pereira, K.C. (with him Soertsz, K.C., and Chelvanayagam), for defendant, respondent.-Section 21 must be read with the earlier sections. These rules are merely for the purpose of ascertaining how the property is to be inherited. Property is placed within three categories, i.e., from the father, from the mother and common or thediathetam property, for the purpose of showing how property is to devolve on the heirs. The issue in this case was whether the property was bought out of the dowry money of the defendant. This issue of law was not raised in the lower Court. The point is not taken in the petition of appeal. The law was taken for granted by the parties.

Section 21 does not contain an exhaustive definition of thediathetam property. It is not even a definition at all. It is for the limited purpose of inheritance and that only. Property is divided into property from the father's side and property from the mother's side. All other property is caught up by thediathetam. It can include all earnings and all savings made by either husband or wife. The purpose of the law is to conserve for the males what comes from the paternal side and for the females what comes from the maternal side. The legislature here intended to conserve property in the same manner as it devolved. Section 21 means property acquired for valuable consideration by either husband or wife other than property referred to in sections 19 and 20, i.e., mudusam and urumai or dowry. This interpretation gives effect to the custom prevailing in the Northern Province of preserving paternal property among the sons and their descendants and maternal property among the daughters and their descendants. Property acquired from dowry money cannot be called thediathetam because that would be to make the three classes already mentioned interchangeable. See the judgment of Sir A. Kanagasabai in Nalliah v. Ponnammah1[22 N. L. R., at 200.]. The valuable consideration must itself be thediathetam.

Cur. adv. vult.

December 20, 1933. GARVIN A.C.J.-

In execution of a decree against the intestate estate of one V. C. Kanagasabai, deceased, the Fiscal seized an estate called Mahawatte, situated at Giriulla. The premises were claimed by Rasamma, the widow of the

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deceased, as being her separate property purchased by her upon a deed bearing No. 1,669 of November 3, 1924. In due course her claim was upheld. The plaintiff then brought the present action under the provisions of section 247 to have the premises declared liable to be seized and sold in execution of the decree above referred to. Several issues were framed...