070-NLR-NLR-V-55-KANNAMMAH-Appellant-and-T.-SANMUGALINGAM-et-al.-Respondents.pdf
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Kannammah v. Sanmugalingam
Present : Pnlle J. and K. D. de Silva J.KANNAMMAH, Appellant, and T. SANMUGALINGAM et al.,
Respondents
S. C. 120—D. C. (Inty.) Jaffna, 999
Thesavalamai-—Jaffna Matrimonial Rights and Inheritance Ordinance [Gap. 18),s. 20—Thediatheddam—Vesting of title to if—Retrospective effect, of amendingOrdinance No. 58 of 2947.
Under section 20 of the Jaffna Matrimonial Rights and Inheritance Ordinance,before it was amended on 3rd July, 1947, by Ordinance No. 58 of 1947, title tohalf of thediatheddam property acquired by a husband vested in his wife immedi-ately upon the acquisition of the property. Such immediate vesting of titlein the wife was not inconsistent with the husband’s right to sell or mortgage theproperty.
•il
The amending Ordinance, Ko. 58 of 1947, does not operate so as to affect titleto property which had already vested in a spouse prior to the date of amendment.
^^LPPE-AL from a judgment of the District Court, Jaffna.
H. V. Perera, Q.C., with H. W. Tambiah, for the appellant.
No appearance for the respondents.
Cur. adv. vult.
January 19, 1954. Pulle J.—
The appellant in this case is the widow of one Muttukrishnar Thambi-
appah who died on the 13th May, 1948, leaving a last will dated 14th
1 1952 A.C. 694 al 707.
PUX.LK J.—Kannawmah v. Sanmugalingam
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April, 1948, now admitted to probate, made jointly with, the appellant.Prior to 3rd July, 1947, the date on which the Jaffna Matrimonial Rightsand Inheritance Amendment Ordinance, No. 58 of 1947, came intooperation and after the year 1926 the deceased purchased interests inseveral immovable properties. As executrix the widow has sought toadminister only a half share of the interests referred to on the footing thatat the time of her husband’s death she was entitled to the remaininghalf share by the operation of section 20 of the Jaffna MatrimonialRights and Inheritance Ordinance (Cap. 48). Consequent on two reportsmade by the Secretary of the Court the learned District Judge, afterhearing counsel for the widow, has made order that the entirety of theproperties bought by the deceased be administered and that a freshdeclaration be sent to the Commissioner of Estate Duty and StampDuty recovered on that footing. The appeal is from this order. Learnedcounsel for the appellant stated that the Commissioner of Estate Dutydoes not contest the appellant’s claim.
The submission on behalf of the appellant is that as the deceasedacquired each property a title to a half was immediately vested in herand that in the absence of any alieuation by the deceased, by right ofmanagement under the Tesawalamai, the title to her share continuedto be vested in her and that that share did not form part of the estateof the deceased. It was further submitted on the authority of Kandavanamv. Nagammah et al.1 and Ahilandanayahi v. Sothinagaratnam et al.2that the amending Ordinance of 1947 did not operate so as to affect thetitle vested in her. I have not been able to extract from the judgmentunder appeal a convincing reply to this argument. From the questionsaddressed by the Judge to counsel he appears to have taken the viewthat an immediate vesting of title in a wife upon the acquisition ofproperty by a husband was not possible because such' vesting wasinconsistent with his right to sell or mortgage the property. This view iscontrary to the decision in the case of Iya Mattayer v. Kanapathipillai3in which Dalton J. sets out the position clearly as to the vesting of titleat pages 307 to 309. The power which the husband has to sell or mortgagetediatetam property is no more inconsistent with a prior vesting of titlethan, as was pointed at the argument before us,the sale of property by anadministrator is inconsistent with a vesting of title in the heirs immediatelyon the death of an intestate. – See also the case of Ponnachchy v.Vallipuram et al. 4 followed by Dalton J. in Iya Mattayer’s case 5.
The next question is whether any event had occurred between theacquisition of the properties and the death of the deceased which resultedin the wife losing her title to a half share of the properties. The learnedJudge after citing the last paragraph at p. 105 of 46 C. L. W. from thejudgment of Gratiaon J. in Kandavanam v. NagcummaTj. et al. stated—
“ I hold that the amending Ordinance governs the devolution of the.deceased’s estate and the entirety of the deceased’s tediatetam passed onhis death according to the amended section 20.”.
r 1952) 46 O. L. W. 104. -3 (1926) 29 N. L. JR. 301.
1952) 53 N. L. B. 385.* (1925) 25 N. L. B. 151.
5 (1928) 29 N. L. B. 301.
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SWAN J.—Middleton v. Manuel
I may observe with respect that the passage at p. 105 does not supportthe conclusion reached by the District Judge. On the contrary theconcluding sentence at p. 105 which reads,
– In any event, the vested rights of either spouse in respect of tediatetamproperty acquired prior to 3rd July, 1947, by the other spouse remaintotally unaffected by the subsequent repeal of section 20 (1) of theprincipal Ordinance. The repealing Ordinance does not purport toforfeit the vested rights of either the living or the dead.” must be takento qualify the general words of the earlier sentence to the effect thatshould death occur after 3rd July, 1947, the new section substituted bythe amending Ordinance would govern the case.
I would set aside the order appealed from and declare that the appellantis not bound to administer more than a half share of the propertiesacquired by her husband prior to 3rd July, 1947. There will be nocosts of appeal.
K. D. t>e Silva J.—I agree.
Order set aside.