SELLAPPAH v. SINNADURAI et al

• Jurisdiction: Sri Lanka
• Date: 10 October 1951
• Type of Document: Case report

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1951 Present: Nagalingam J., Basnayake J. and Swan J.

SELLAPPAH, Appellant, and SINNADURAI et al., Respondents

S. C. 554-D. C, Point Pedro, 2,873

Thesavalamai-Jaffna Matrimonial Rights and Inheritance Ordinance (Cap. 48), ss. 6, 19 and 20-Thediatheddam-Retrospective operation of amending Ordinance, No. 58 of 1947-Interpretation Ordinance, (Cap. 2), s. 6 (2) and (3) (a).

Co-owners-Transfer, by a co-owner, of entirety of common property to stranger-Prescriptive possession by transferee-How computed.

Appeal-Case from District Court-Constitution of Appellate Court-Courts Ordinance (Cap. 6), ss. 38, 48 and 51.

Held (Basnayake J. dissenting) : (i) The amendment of sections 6 and 19 of the Jaffna Matrimonial Rights and Inheritance Ordinance (Cap. 48) by Ordinance No. 58 of 1947 has retrospective operation. The amending Ordinance was enacted in order to declare what the law always was and to restore the law as it stood before the decision in Avitchy Chettiar v. Rasamma (1933) 35 N. L. R. 313. Where, therefore, a woman, who married in 1917, purchased certain lands in 1918 with her dowry money during the subsistence of the marriage, such lands must be regarded as her separate property and not as thediatheddam.

(ii) Where one of several co-owners sells the entirety of the common property to a person who is a stranger and not a co-heir and who purchases it without any knowledge or belief that any other party is entitled to any interest in the property, the possession of the purchaser is not the possession of the co-owners. In such a case, Corea v. Iseris Appuhamy (1911) 15 N. L. R. 65 or Britto v. Muttunayagam (1918) 20 N. L. R. 327 is inapplicable, and the purchaser acquires title to the entire property after adverse possession for ten years.

(iii) Under section 38 of the Courts Ordinance, an appeal from a judgment of a District Court may be directed by the Chief Justice to be listed before three Judges if two Judges, after a preliminary hearing of the appeal, request the Chief Justice to make such direction.

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

This appeal was reserved for adjudication by a Bench of three Judges on a reference made by Dias S. P. J. and Swan J.

H. V. Perera, K.C., with H. W. Tambiah, C. Renganathan, T. Somasunderam and S. Sharvananda for the plaintiff-appellant.- The point that arises on this appeal is whether certain property claimed by the plaintiff is thediatheddam property. In September, 1917, plaintiff married third defendant, who, in March, 1918, during the subsistence of the marriage, acquired the property in dispute with her dowry money. The plaintiff thereafter went to Malaya, where he was employed, and remained there a considerable time. In December, 1923, the wife, who remained in Jaffna, made an application to the District Court of Jaffna for permission to sell her dowry property without the consent of her husband, on the ground that the husband had deserted her. The application was allowed and the third defendant purported to

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convey by deed D 4 of 1924 the land in dispute to Rasamma. From Rasamma the lands devolved ultimately on the first and second defendants. The plaint in the present action was filed on February 14, 1947, and the answer of the first and second defendants was filed on June 27, 1947. On July 3, 1947, the Jaffna Matrimonial Rights and Inheritance (Amendment) Ordinance, No. 58 of 1947, was proclaimed. At the time of acquisition of the property in dispute Ordinance No. 1 of 1911 (Chap. 48) was in operation and under that Ordinance the property is " acquired" or thediatheddam property, notwithstanding the fact that the money was dowry money. Under the Ordinance of 1911 such property belonged equally to the two spouses. According to the phraseology of section 19 of the Ordinance of 1911, if property is acquired by the wife for valuable consideration during the subsistence of marriage the property is thediatheddam even though the source of the consideration is dowry money of the wife. Further, the property is thediatheddam "of" the wife. Section 20 provides the answer to the question " who are the owners of such property ? ". Inheritance is dealt with in sub-section 2. One of the incidents of Thesavalamai is that the husband can deal with the thediatheddam of the wife as he is regarded as the manager of the common property.

[NAGALINGAM J.-Only if the property is in his name ]

Even if it is in the wife's name. The whole of the Thesavalamai is not abrogated by Ordinance No. 1 of 1911-Sangarapillai v. Devaraja Mudaliyar 1[(1936) 38 N. L. R. 1.]. As husband, he is manager of the common property. The wife has no power to deal with her property. She has no power to dispose of her half share. Where property is acquired by a wife during marriage and deed is executed in her favour it vests by law in both the spouses-Ponnachchy v. Vallipuram 2[(1923) 25 N. L. R. 151.]. Where property is acquired by a husband during subsistence of marriage the title, legal and beneficial, vests by operation of law in husband and wife-Sellachchy v. Visuvanathan Chetty 3[(1922) 23 N. L. R. 97.]. Therefore, a husband can convey legal title to the whole of the property as he is the owner of the communio. He can sell in the course of management although he has no deed in his own name. But he cannot donate more than his half share-see the judgment of Garvin J. in Sellachchy v. Visuvanathan Chetty (supra). The majority view in that case was that the husband can dispose of the whole property as he is the absolute manager. See also Sangarapillai v. Devaraja Mudaliyar (supra). In the present case Ordinance No. 1 of 1911 is applicable. The parties were married in 1917 and the property was acquired for valuable consideration in 1918. The separate property can be alienated with the consent of the District Judge. The District Judge can dispense with the husband's consent only when the wife wants to deal with her separate property. In other cases no court can give consent. If the property in dispute in this case was not separate property, and was thediatheddam within the meaning of Ordinance No. 1 of 1911, then the Court cannot give consent. Was it thediatheddam property ? Section 19 makes it clear

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that it was thediatheddam of the wife, and section 20 (1) indicates that it belongs to both husband and wife equally. See Avitchy Chettiar v. Rasamma 1[(1933) 35 N. L. R. 313]. After the answer was filed in the present case the Jaffna Matrimonial Rights and Inheritance (Amendment) Ordinance, No. 58 of 1947, came into operation. It is submitted that this Ordinance did not operate retrospectively. There is nothing in the Ordinance itself to say that it is retrospective. Section 7 declares that the amendment shall not affect the rights of the parties in the case of Avitchy Chettiar v. Rasamma (supra) and in other cases in which that case may have been followed. This section was inserted ex abundanti cautela. It does not say, by necessary or reasonable implication, that the amendment affected the mutual rights of parties in all cases other than those expressly indicated. The fact that the amending Ordinance refers to the earlier Ordinance as the " principal Ordinance " is no indication that the amending Ordinance is retrospective, as practically all amending Ordinances refer to the earlier Ordinances in the same way whenever the amendments are not of a simple nature. With regard to the meaning of the expression " principal Ordinance " see section 5 of the Interpretation Ordinance. Further, section 6 (3) (6) of the Interpretation Ordinance appears to be decisive on this question. No right can be taken away unless expressly taken away by written law. In England (52 and 53 Vict. Cap. 63) the problem is more difficult. There must be an intention to affect vested rights-Barber v. Pigden 2[(1937) 1 K. B. 664. ]; The Guardians of the Poor of the West Derby Union v. The Metropolitan Life Assurance Society 3[ L. R. (1897) A. C. 647 at p. 655].

It is submitted therefore that Sachchithananthan v. Sivaguru 4[ (1949) 50 N. L. R. 293.] was wrongly decided and that Ordinance No. 58 of 1947 has no retrospective effect.

C. Thiagalingam, K.C. with V. A. Kandiah and E. R. S. R. Coomaraswamy for the defendant-respondent.-Sections 19 and 20 of Ordinance No. 1 of 1911 have nothing to do with this case. The question is what is the meaning of the word thediatheddam. It does not mean a different thing before and after the amending Ordinance came into force. The amending Ordinance is a declaratory statute. The question whether it is of retrospective effect does not really arise. The statute is declaratory because it seeks to define the word thediatheddam in view of erroneous decisions. Assuming that sections 19 and 20 have some application, two questions arise-what is thediatheddam, and on whom does thediatheddam rest ? With regard to the meaning of " acquired " in section 19 see the Thesavalamai (Chap. 51) Part I, section 1, and the judgment of Withers J. in Jivaratnam v. Murukesu 5[ (1895) 1 N. L. R. 251.]. Section 19 (a) of Ordinance No. 1 of 1911 correctly defined thediatheddam and there is no necessity to consider the amending Ordinance. See also Nalliah v. Ponnamah 6[(1920) 22 N. L. R. 198.]. It is perfectly clear that the property in dispute was the property of the wife as it was admittedly purchased with dowry money. With regard to the question whether the amending Ordinance was retrospective, see Odgers' Construction of Statutes, 1946 ed., p. 194 ;

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Halsbury's Laws of England, 1st ed., Vol. 27, pp. 116, 162. Even where no express words appear in a statute to indicate that the statute is retrospective, still, if the context so requires, a retrospective effect can be given to it A.G. v. Theobald 1[(1890) 24 Q. B. D. 557]; Lane v. Lane 2[(1896) 74 L. T. 557.]

With regard to the use of the word " repeal ", see Surtees v, Ellison 3[(1829) 7 L. J....