009-NLR-NLR-V-52-KATHIRITHAMBY-et-al.-Appellants-and-SUBRAMANIAM-Respondent.pdf
I960Present: Nagalingam J.
KATHTBiTHAMBY et al., Appellants, and SUBRAMANIAM,
Respondent
S. C. 153—G. R. Point Pedro, 449
tThesavalamai—Property purchased by husband—Marriage in 1931, or 1932—JaffnaMatrimonial Rights and Inheritance Ordinance {Cap. 48), sections 19 and20—Thediatheddam—Retrospective effect of amending Ordinance No. 58 of1947—Sections 2 and 7—Construction of statutes—Interpretation Ordinance{Cap. 2), section 5—Appeal dismissed without judgment—Validity as judicialprecedent.
Ordinance No. 58 of 1947 amending the Jaffna Matrimonial Rights andInheritance Ordinance is retrospective in its operation and has effect from thedate of the passing of the main Ordinance in 1911. Satchithanandan V. Sivagutu{1949), 50 N. L>. R. 293 followed.
Under the new sections 19 and 20, thediatheddam is regarded as a species ofproperty which, thongh not forming part of the separate estate of the spousein whose name such property may stand, yet loses the character of its beingcommon to both spouses, which was of the essence of the nature of thediatheddamproperty under the Thesavalami.■
Where the appeal in a case is dismissed without reasons being given .it isincorrect to treat the judgment of the lower Court either .aB a judgment of the. Supreme Court or as a judgment which has any binding effect on the SupremeCourt..
* {1923) 23 N. L. R. 481.
A PPEAIi from a judgment otf the Court of Requests, Point Pedro.
The defendant, a Jaffna Tamil, purchased, a share of a land by adeed 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 theplaintiffs 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 jleath of their sister, the defendant’s-wife, they inherited a half of the acquired land.
W. Tambiah, with S. Sharvanctnda, for plaintiffs appellants.
S. Subramaniam, with P. Navaratnarajah, for defendant respondent-
Our. adv. wilt-
May 23, 1950. Nagaiangam J.—
The construction of certain provisions of the Jaffna MatrimonialRights and Inheritance Ordinance, Cap. 48, as amended by the Jaffna.Matrimonial Right and Inheritance (Amendment) Ordinance, No. 58of 1947. is involved on this appeal. The facts which give rise to the dispute^briefly are that the defendant, a Jaffna Tamil, purchased a J share ofthe land the subject-matter of this action by a deed of 1934 (PI)- Hewas married to sister of the plaintiffs in the year 1931 or 1932 and thewife 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 thecategory of property known as tediatetam and that on the death of theirsister, the defendant’s wife, they inherited a half of the acquiredland; and as the defendant, has prevented them from possessingtheir share they bring this action for the recovery of consequentialdamages.
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 ifthose provisions applied, the property in question having been acquiredfor valuable consideration during the subsistence of the marriage rthe property fell under the category of tediatetam: as defined in section;■19 and that on the death of the wife by virtue of sectiofci 20, a.half share thereof vested in the plaintiffs as. heirs of the deceasedspouse.
The- defendant, however, . contends that these provisions so muehirelied upon by the plaintiffs have been abrogated by the amendingOrdinance and that the new sections 19 and 20 substituted by it for theold – provisions should alone be looked at for the purpose of decidingthe' rights- of parties. In regard to this contention, the plaintiffs jointissue with the defendant and assert that the amending Ordinance whichfound a place in .the Statute book only in 1947, that is-, to say aboutseven years after the death which gives rise to .this piece of litigation,has no application, as their rights had become crystallized before the passingpf the amending Ordinance and that any attempt at determiningtheir rights by reference, to the amending Ordinance would militateagainst the well-accepted principle that the legislature cannot be deemedto have intended to impair or interfere with lights already accruedand vested.
The1 contest may therefore he state^. in the form of a question, viz.,whether the amending Ordinance is prospective or retrospective in. itsoperations.
This question, I may say a.t oncec, is concluded by authority.. In thecase of Satchithananda v. Sivaguru 1 I had occasion .to consider thispoint and I reached the view that the amending Ordinance wasrestrospective in its operation. My brother Windham agreed with me.That being a two Judge case, even if I were disposed to differ from theview then taken,; it is not open to me to do so as that case is binding onme sitting alone. Mr. Thambiah, however, invites me at least to reservethe point for consideration by a fuller bench on the ground that anotherjudgment of this Court is in conflict with the case of Satchithananda v.Sivaguru 1. He refers to the case, of Sotfoinagaratnam v. Akilandanayakiet el.8 The appeal in that case was dismissed without a judgment..Where a judgment of a lower Court is affirmed without reasons beinggiven by this Court it is incorrect to treat the judgment of the lowerCourt either as a judgment! of this Court or as a judgment which ,hasany binding effect on this Court. The further circumstance- referredto by Mr. Thambiah that the point of law had been argued at greatlength in this Court is again no argument! to treat a judgment of a lowerCourt as having any greater weight than that it is in fact a judgment ofan inferior Court. 'Various reasons may have actuated this Court inaffirming the judgment of the lower Court but not necessarily thosegiven in the lower Court. Only when 'this Court expressly adopts ajudgrheint of the lower Court as its own can .the judgment of the lowerCourt be treated as being invested with that character whereby it isenabled , to be regarded as a pronouncement having a binding effecton 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 isonly, the judgment of this Court on .the point.
In ^reality the further argument of this question has revealed theexistence "of another approach to! the solution of this problem and whichto : my mind is eveq far more, conclusive than the arguments uponwhich the decision in the case of Satchithananda v. Sivaguru 1 was. based-.It was not sufficiently realized in .the course of the argument in thatcase1 that the aniending Ordinance "No. 58 of 1947 in section 2 thereofexpressly refers to the J affna Matrimonial Eights and InheritanceOrdinance as “ the principal Ordinance ” and in every one " of -thesubsequent sections by which " amendments are introduced the terin" principal Ordinance ” continues to be used. Now the term “ principal
' 1 (1948) 50 N.. L. R. 293.'–/" .
* S. C. No. 5'5jD. C. Jaffna No. 3092,'S. C. Min. 3-11-48.
Ordinance is not used in the amending Ordinance as words of ordinaryconnotation but as a term of art. The words “ principal Ordinance ’have been impressed with a special meaning by the InterpretationOrdinance Cap. 2, section 5 whereof runs as follows : —
“ Where any Ordinance is declared-to be passed to amend any citherOrdinance, 'the expression the principal Ordinance ’ shall mean theOrdinance to be amended, and the amending Ordinance shall be read asone unth the principal Ordinance ”
The words italicized are of special significance in this context. Themind oE the Legislature is clearly disclosed in regard to the effectivedate of the operation of this amendihg Ordinance by its use of the term“ principal Ordinance ” in the amending Ordinance. To contrast thisamending Ordinance with another Ordinance viz., Ordinance No. 60of 1947, which is in itself an Ordinance amending an earlier Statute,viz., the prevention of frauds Ordinance, Cap. 57, the Legislature didnot in that amending Ordinance refer to the earlier statute which itsought to amend as the “ principal Ordinance ’’. The reason for thisdistinction is not unimportant and in fact very substantial. What,then, is the meaning to be given to the words that the “ amendingOrdinance shall be read as one with the principal Ordinance ' ’ ? Theplain meaning of these words is that the amendments should beincoi-porated into the main Ordinance and read as if they had been enactedat the time that the main Ordinance itself was framed before an attemptis made to construe or give effect to them ; it certainly would be doingviolence to these words if the amending Ordinance were to be treated asa separate piece of legislation to be construed without reference to themain Ordinance. I have not come across any case either local or ofthe English or Indian Courts where these identical words have receivedjudicial interpretation. There is, however, an old English case whichcomes very close to the subject-matter in hand. That is the case ofAttorney-General v. Pougett 1 where the facts were that by a Statuteof George III an export duty was imposed upon hides of 9s. 4d. but thestatute omitted to mention whether the duty so imposed was in respectof any specified weight. To remedy this omission an amending Ordinancewas passed in the same reign by which the weirds “ per cwt.” wereadded after 9s. Ad. The question that arose was whether the duty at9s. Ad. per cwt. was to be levied in regard to hides that had been exportedbefore the enactment of the amending Ordinance or whether the dutywas merely a sum of 9s. Ad. on the full quantity of hides exported onone cecasidn by an exporter without reference to the weight. ChiefBaron Thomson in giving judgment said:“ The duty in this instance
was in fact- imposed by the first Act, but the gross mistake of omissionof the weight for which the sum expressed was to have been payableoccasioned the amendment made by the subsequent Act, but that hadreference to the former statute as soon as ft passed and they must betaken together as if they were one and the same Act ”.
same meaning that Chief Baron Thomson intended to convey by the=words, “ they (the main and amending Ordinances) must be takentogether as if they were one and the same Act
If, therefore, the proper method of construing the amendmentsintroduced by the amending Ordinance is to construe them afterincorporating them into the main Ordinance and then reading both.Ordinances as if they were one, the reason for the enactment ofsection 7 which was left in some obscurity in S atchithananda v -St-vaguvu becomes obvious. Section* 19 is in Part 3 of the mainOrdinance which part deals with inheritance – section 14, which is thevery first section of this part, expressly declares that the subsequentsections, of Which sections 19 and 20, it will be observed, are-two, should apply to the estates of persons who die after the com-mencement of the Ordinance, provided they fall under one or other of thefollowing two classes : —(1) unmarried persons (2) married persons who-were married subsequent to the Ordinance. If the new sections 19 and20 are therefore substituted in the principal Ordinance and read in thelight ox the provisions of section 14, nothing can be clearer than that theoperation of the new sections 19 and 20 extends to the two categories ofpersons set out above, that is to say, these sections would have operationin respect of estates of the aforesaid classes of persons dying after 17th-Tuly, 1911, the date of the commencement of the main Ordinance. Xnthis view of the date of commencement of operation of the new amending-seet'ons 19 and 20, the reason for the enactment of section 7 in the-amending Ordinance by which the amendments were excluded from havingeffect on certain decided cases is plainly understandable. . But for thissaving clause, even the decided cases would have come within the ambitof the amendment. The policy of the Legislature not to! interfere withdecided cases even where it sets out to declare the law as distinct fromenacting new law is well established and is an old one. Commentingon retrospective statutes, Craies observes in his Treatise on Statute Law ltha-t “ Acts df this kind like judgments decide like cases pendingwhen the judgments are given but do not reopen decided cases ”.
Furthermore, the amending Ordinance cannot but be regarded as apiece of legislation declaratory in its nature. After the main Ordinancehad become law in 1911, the construction of section 19 as it then stoodcame up for consideration in the case of Nalliah v. Ponniah z. Notwith-standing the wording of that section 19, both the lower Court and thisCourt gave effect 'to the well-knciwn principle of Thesawalamai thatwhere propertey is acquired by either spouse during the subsistence ofmarriage with his or her separate property, the property so acquiredcontinued to have its separate character and did not fall under thecategory of tediatetcim property. This judgment, however, came upfor review in the Divisional Bench case of Avitohi Ghettiar v. Rasamma 3and the Divisional Bench took a contrary view and held .that providedthe property was acquired during the subsistence of the marriage by eitherspouse, such property became tediatetem irrespective of the fact thatthe consideration paid fo^. such purchase may have been the separate
= (1920) 22 N. L. R. 19S.
(1933) 35 N. L. R. 313.
1 1907 ad. p. 332.
3
property of one of the spouses. This Divisional Bench case introducedfor the first time a new notion foreign, to Thesawalamai in regard towhat is known as tediatetam and caused and continued to cause no littlediscontent among the people of Jaffna. It was to remove this discontentthat the amending Ordinance was passed. Looked at from the historicalpoint of view, too, it is easy to see why the operation of the amendingOrdinance should be coeval with the main Ordinance. If the newsection 19 of the amending Ordinance was enacted to restore the oldconception of tediatetem, which ^t undoubtedly does, can one think ofany sound reason for the Legislature deciding to perpetuate the erroneousnotion of Thesawalamai embodied in the earlier section 19 even in regardto persons who may have died between 1911 and 1947, the dates ofthe passing of the main and the amending Ordinances respectively. Ican think of none. The amending Ordinance has the effect of declaringwhat was always the law and its operation therefore cannot be confinedto any period subsequent to when it became law. The case of Attorney-General v. Theobold 1 is an authority for the proposition that where astatute is in its nature declaratory the presumption against construingit retrospectively is inapplicable.
The object of the Legislature in enacting that the amending Ordinanceshould be read as one with the principal Ordinance would have beenbetter achieved had it not used the word “ repealed 55 in enacting thenew sections 19 and 20 but used some such word as “ abrogatedinstead, for then the apparent conflict that arises by using the word“ repealed ” which word has a special significance as set out in section6 of the Interpretation. Ordinance and referred to in Satehvbhananda v.Sivagui'u 2 would not arise.
There is another difficulty that may be said to arise by reason of thelanguage used in section 7 of the amending Ordinance. That sectionuses the phrase “ prior to the date on which this Ordinance comes intooperation ”. If the amending Ordinance is to have effect from thedate when the principal Ordinance came into operation, then the phrasecan make nc sense. On the other hand, if the phrase is to be deemedto refer to the date when the amending Ordinance was passed as theeffective date of operation of the amendments, then all the calculatedpains taken by the Legislature to refer to the main Ordinance as theprincipal Ordinance would have been an irksome toil it had set itselfall to no purpose, and it would follow that the studied use of the words“ principal Ordinance ” would be equally meaningless. This conflictand these absurdities would be avoided if the phrase is read to mean“ prior to the date on which this Ordinance becomes lAw ”. This construc-tion would also carry into effect the intention of the Legislature in passingthe amending Ordinance.
(1897) 24 Q.B.D. 527.
(1949) 50 N. L. R. 293.
Having regard to these considerations, I am confirmed in the viewthat I expressed in the ease of Satchithaixanda v. Sivaguru 2 that theamending Ordinance has retrospective effect and has effect from thedate of the passing of the main Ordinance in 1511.
If the main Ordinance as amended applies, then by virtue of section 19(ne^) the property purchased by the defendant becomes his tediatetem,.for there is no evidence that the consideration paid for the purchasecame from his. separate estate. In passing, I might observe that theposition would be the same even if the old section 19 applied. The realobstacle to the plaintiffs’ success in this case is section 20 (new). Boththe new sections 19 and 20 speak of “ tediatetem. of a spouse ”. Under-the Thesatualamai, tediatetem was property belonging in common tothe two spouses though it may have bqen acquired by one of the spousesand the meaning of the term under Thesawalamai is correctly set out inthe old section 20 (1). Now for the first time under the new sections 19and 20 tediatetam is regarded as a Species of property which though notforming part of the separate estate of the spouse in whose name suchproperty may stand, yet loses the character of its being common to bothspouses, which was of the essence of the nature of tediatetam propertyunder the Thesawalamai. By reason of the loss of the common or jointcharacter of the tediatetam property consequences of a far reachingcharacter bringing about a revolutionary change in the law of inheritance-result. The change itself is expressly embodied in the new section 20,which runs as follows: —
“ On the death of either spouse one half of the thediatheddam whichbelonged to the deceased spouse, and has not been disposed of by lastwill or otherwise, shall devolve on the surviving spouse and the othei~half shall devolve on the heirs of the deceased spouse ”.
It will be noticed that it is tediatetam property iwhich belonged to thedeceased spouse that would devolve in respect of a half share thereof onthe surviving spouse and the other half share on the heirs of the deceasedspouse. The new section 19 having already used the phraseologythediatheddam of a. spouse ” the idea underlying- that term is carriedforward in section 20 when it concerns itself only with the devolution oftediatetam property belonging to the deceased spouse. If, therefore, thesurviving spouse has tediatetam property belonging to him or her,that tediatetam property, unlike under the old Thesawalamai, does notbecome subject to devolution at the dissolution of marriage, and in effectbecomes, as a result of the dissolution of marriage, the separate propertyof the surviving spouse to which the heirs of the deceased spouse canlay no claim. The property in this case is not property that belongedto the deceased spouse—dshe deed of conveyance is in favour of thedefendant. The property, therefore, is at best- tediatetam of the defendant-—and this tediatetem property did not fall into the category of propertythat was subject to devolution at the date of the death of the defendant’swife, but continued to be vested in regard to the entirety thereof inhimself. In view of the foregoing, it cannot be said that any share ofthe property claimed by the plaintiffs devolved on them by reason ofthe death of their sister.
For these reasons the plaintiffs’ appeal fails and is. dismissed with costs.
c
Appeal dismissed.