KATHIRITHAMBY et al. v. SUBRAMANIAM

• Jurisdiction: Sri Lanka
• Date: 23 May 1950
• Type of Document: Case report

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1950 Present: Nagalingam J.

KATHIRITHAMBY et al., Appellants, and SUBRAMANIAM,
Respondent

S. C. 153-C. R. Point Pedro, 449

Thesavalamai-Property purchased by husband-Marriage in 1931 or 1932-Jaffna Matrimonial Rights and Inheritance Ordinance (Cap. 48), sections 19 and20-Thediatheddam-Retrospective effect of amending Ordinance No. 58 of 1947-Sections 2 and 7-Construction of statutes-Interpretation Ordinance (Cap. 2), section 5-Appeal dismissed without judgment-Validity as judicial precedent.

Ordinance No. 58 of 1947 amending the Jaffna Matrimonial Eights and Inheritance Ordinance is retrospective in its operation and has effect from the date of the passing of the main Ordinance in 1911. Satchithanandan v. Sivaguru (1949), 50 N. L. R. 293 followed.

Under the new sections 19 and 20, thediatheddam is regarded as a species of property which, though' not forming part of the separate estate of the spouse in whose name such property may stand, yet loses the character of its being common to both spouses, which was of the essence of the nature of thediatheddam property under the Thesavalami.

Where the appeal in a case is dismissed without reasons being gives it is incorrect to treat the judgment of the, lower Court either as a judgment of the Supreme Court or as judgment which has any binding effect on the Supreme Court.

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APPEAL from a judgment ,of the Court of requests, Point Pedro

The defendant, a Jaffna Tamil, purchased a 1/4 share of a land by a deed of 1934. He was married to plaintiff's sister in the year 1931 or 1932 and the wife died in 1940. It was contended on behalf of the-plaintiffs that as the land was acquired during the subsistence of the defendant's marriage it fell under the category of property known as. thediaheddam and that on the death of their sister, the defendant's wife, they inherited a half of the acquired land.

H. W. Tambiah, with S. Sharvananda, for plaintiffs appellants.

S. Subramaniam, with P. Navaratnarajah, for defendant respondent.

cur. adv. vult.

May 23, 1950. NAGALINGAM J.-

The construction of certain provisions of the Jaffna Matrimonial Bights and Inheritance Ordinance, Cap. 48, as amended by the Jaffna Matrimonial Bight and Inheritance (Amendment) Ordinance, No. 58 of 1947, is involved on this appeal. The facts which give rise to the dispute-briefly are that the defendant, a Jaffna Tamil, purchased a 1/4 share of the land the subject-matter of this action by a deed of 1934 (P1). ' He was married to sister of the plaintiffs in the year 1931 or 1932 and the wife died in 1940.

The case for the plaintiffs is that the property having been acquired during the subsistence of the defendant's marriage it fell under the category of property known as tediatetam and that on the death of their sister, the defendant's wife, they inherited a half of the acquired land; and as the defendant, has prevented them from possessing their share they bring this action for the recovery of consequential damages.

The case of the plaintiffs is rested upon a reading of sections 19 and 20 as first enacted in the main Ordinance. It cannot be gainsaid that if those provisions applied, the property in Question having been acquired for valuable consideration during the subsistence of the marriage, the property fell under the category of tediatetam as defined in section 19 and that on the death of the wife by virtue of section 20, a half share thereof vested in the plaintiffs as heirs of the deceased spouse.

The defendant, however, contends that these provisions so much relied upon by the plaintiffs have been abrogated by the amending Ordinance and that the new sections 19 and 20 substituted by it for the old provisions should alone be looked at for the purpose of -deciding, the rights of parties. In regard to this, contention, the plaintiffs join issue with the defendant and assert that the amending Ordinance which found a place in the Statute book only in 1947, that is to say about

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seven years after the death which gives rise to this piece of litigation has no application, as their rights had become crystallized before the passing of the amending Ordinance and that any attempt at determining their rights by reference to the amending Ordinance would militate against the well-accepted principle that the legislature cannot be deemed to have intended to impair or interfere with rights already accrued and vested.

The contest may therefore be stated in the form of a question, viz., whether the amending Ordinance is prospective or retrospective in its operations.

This question, I may say at once, is concluded by authority. In the case of Satchithananda v. Sivaguru¹[(1949) 50 N. L. R. 293.] I had occasion to consider this point and I reached the view that the amending Ordinance was retrospective in its operation. My brother Windham agreed with me. That being a two Judge case, even if I were disposed to differ from the view then taken it is not open to me to do so as that case is binding on me sitting alone. Mr. Thambiah, however, invites me at least to reserve the point for consideration by a fuller bench on the ground that another judgment of this Court is in conflict with the case of Satchithananda v. Sivaguru¹[(1949) 50 N. L. R. 293.] He refers to the case of Sothinagaratnam v. Akilandanayaki et el.²[S. C. No. 65/D. C. Jaffna No. 3092. S. C. Min. 3.11.48] The appeal in that case was dismissed without a judgment. Where a judgment of a lower Court is affirmed without reasons being given by this Court it is incorrect to treat the judgment of the lower Court either as a judgment! of this Court or as a judgment which has any binding effect on this Court. The further circumstance referred to by Mr. Thambiah that the point of law had been argued at great length in this Court is again no argument1 to treat a judgment of a lower Court as having any greater weight than that it is in fact a judgment of an inferior Court. Various reasons may have actuated this Court in affirming the judgment of the lower Court but not necessarily those given in the lower Court. Only when this Court expressly adopts a judgment of the lower Court as its own can the judgment of the lower Court be treated as being invested with that character whereby it is enabled to be regarded as a pronouncement having a binding effect on this Court. I do not therefore think that there is any conflict of authority on this point so far as this Court is concerned, for there is only the judgment of this Court on the point.

In reality the further argument of this question has revealed the existence of another approach to the solution of this problem and which to my mind is even far more conclusive than the arguments upon which the decision in the case of Satchithananda v. Sivaguru¹[(1949) 50...