SACHCHITHANANTHAN, v. SIVAGURU,

• Jurisdiction: Sri Lanka
• Date: 12 April 1949
• Type of Document: Case report

293

1949 Present: Nagalingam and Windham JJ.

SACHCHITHANANTHAN, Appellant, and SIVAGURU,
Respondent

S. C. 445-D. C. Point Pedro, 2,935

Thesavalamai-Property purchased by wife-Marriage after Jaffna Matrimonial Rights Ordinance-Thediatetam-Effect of amending Ordinance-- Retrospective-Ordinance No. 58 of 1947.

Ordinance No. 58 of 1947 amending the Jaffna Matrimonial Bights and Inheritance Ordinance is retrospective in its operation.

294

APPEAL from a judgment of the District Judge, Point Pedro.

H. W. Tambiah, with S. Sharvananda, for plaintiff appellant.

C. Thiagalingam, with V. Arulambalam, for defendant respondent.

Cur. adv. vult.

April 12, .1949. NAGALINGAM J.-

This appeal involves a point of some importance in the law of inheritance relating to persons governed by the Jaffna Matrimonial Rights and. Inheritance Ordinance. I shall adopt the facts, so far as they are material, for the purpose of the present appeal, as ascertained by the learned District Judge, the correctness of which findings has not been disputed at the argument.

Two persons, Sivakamipillai and Manickam, were at one time the co-owners of the entirety of the land sought to be partitioned in this case. By deed P6 of July, 1937, these two persons conveyed the land to one Aththal subject to the condition that the vendee should reconvey the premises to the vendors on payment of the consideration with the interest stipulated therein within a period of three years from the date of the execution of the deed. By deed P7 of October, 1937, Aththal re-transferred the entirety of the land to Sivakamipillai, who was one of the vendors to her. Sivakamipillai died intestate, leaving her surviving her husband Periyathamby and three children, the plaintiff and the two defendants. The husband by deed P8 of 1945 purported to convey to the plaintiff a half-share of the land.

The defendants contend that the deed P8 was inoperative to convey any title to the plaintiff. The case for the plaintiff is that as Sivakamipillai " was married subsequently to 1911, that is to say, after the coming into operation of the Jaffna Matrimonial Rights and Inheritance Ordinance, the purchase by her of the property from Aththal by deed P7 of October, 1937, fell into the category of property known as Thediatetam within the meaning of section 19 of the Ordinance, as it stood prior to its amendment by the Jaffna Matrimonial Rights and Inheritance (Amendment) Ordinance, No. 58 of 1947. The defendants on the other hand assert that as a result of the new section that was substituted by the amending Ordinance in place of the earlier section 19, if it can be shown that Sivakamipillai purchased the land with her separate property then the property ceases to be Thediatetam within the meaning of the new section and that no rights vested in the husband so as to make the deed P8 effective. The learned Judge has found as a fact that the consideration provided by Sivakamipillai for the purchase of the land by deed P7 was in fact her separate property.

Counsel on each side concedes that the interpretation placed by opposing Counsel on the earlier and later sections numbered 19 would support the devolution of title contended for by the respective parties. The question on which they are at issue, however, is whether the amending section which was proclaimed law on July 4, 1947, subsequent to the date of Sivakamipillai's death, has application to the question of the distribution of her estate.

295

Mr. Sharvananda for the plaintiff appellant argues that no statute should be construed to have a retrospective operation and that the amending Ordinance cannot be construed so as to give to the new section which replaces the old the same effect as if it had been originally enacted In the principal Ordinance itself but that the effective operation of the mew section must be deemed to date from the date when it became law. In support of his contention he relied upon the following authorities :-

1. The Privy Council case of Ponnammah v. Armugam ¹[(1095) 8 N. L. R. 223.] where, in delivering the judgment of the Board, Lord Davey made the following observation :-

It is unnecessary therefore to discuss the question whether intention is sufficiently shown to take this case out of the well known rule on the construction of statutes that the rights of parties must be decided according to the law as it existed when the action was commenced."

2. The case of Colonial Sugar Trading Co. v. Irwin ²[74 L. J. P. C. 77.], also a Privy Council case, where Lord McNaughten's expressed himself in these words:

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