115-NLR-NLR-V-59-DURAIRAJAH-et-al.-Appellants-and-MAILVAGANAM-et-al.-Respondents.pdf
540
’ WEERASOORIYA, J.—Durairajah v. Mailvaganam
.1957Present:Weerasooriya, J., and Sansonl, J.
DURAIRAJAH el al., Appellants, and MATLVAGANAMet al., Respondents
. S. C. 232— D. G. Jaffna, 1411M
Vendor and purchaser—Thesavalamai—Husband and wife—Sale of land by them—.Covenant to warrant and defend title—Inability of the wife—Jaffna
Matrimonial Sights and Inheritance Ordinance (Cap. 43), as amended byOrdinance Ho. 5S of 1947, ss. 6, 19.
. Whore several vendors enter into a covenant to warrant and defend titleto a land convoyed b3r them, and the title is subsequently questioned by a thirdparty in an action, it is incumbent on the vendee to give notice to warrant and' defend titlo to each of his vendors whom he sooks to hold liable under' tho covonant.'
Accordingly, where a husband and his wifo governed by the law of-■ Thcsavalamai sell immovable property belonging to tho wife, notice to warrantand defond title must be given to the wife separately if sho is to bo hold liable.In such a case, notice to the husband cannot, by virtue of section 6 of theJaffna Matrimonial Rights and Inheritance Ordinance, be construed ns notice. to the wife as well.
A.PPEAL from a judgment of the District Court, Jaffna..
Rcnganathan, for the defendants-appellants.
JV. Nadarasa, with S. Sharvananda, for the plaintiffs-respondents.
Cur. adv. vult.
May 16, 1957. Weerasooriya, J.—
The plaintiffs-respondents sued the defendants-appellants in thisaction to recover a sum of Rs. 5,400 as damages sustained by reason ofthe failure of the defendants to warrant and defend title to the land des-cribed in the schedule to the plaint in terms of their covenant in deed PIof 1953 on which they purported to transfer the land to the plaintiffsfor valuable consideration. After trial judgment and decree were enteredin favour of the plaintiffs in a sum of Rs. 4,950 and costs as against bothdefendants and from this judgment and decree the defendants haveappealed.
The 1st defendant is the husband of the 2nd defendant. On deed P3of 1952 the.2nd defendant purchased the land in suit from one Iyampillai.P3 contains a recital t-hat the 2nd defendant stated that the purchaseprice of Rs." 1,500 represented a portion of her dowry money. It iscommon ground that the defendants are governed bj- the law ofjVesawalamai, and although no specific issue was raised on the questionwhether this property is her separate property, the answer to it wouldhave a bearing on the following two of the issuos on which the case wentto trial and which are the only issues material to this appeal :
** (4) Was notice to warrant and defond title duly given to the.defendants in case No. 11429 D. C. Jaffna ?
<5) If not, is the plaintiffs’ action maintainable ? ”
WE ERASOOll rVA. J.—Durairajah v. Mailvognnam
541
At tlic hearing before us the appeal of llie 2nd defendant only waspressed l*y Mr. Rcnganatlian. As conceded by him, oven if this pro-perty is tho 2nd defendant’s separate property the 1st defendant wouldbo liable in damages under liis covenant in PI to warrant and defendtitle in view of the answers of the trial Judge to tho two issues set outabove, the correctness of which answers, in so far as they affect the caseof the 1st defendant, was not canvassed by Mr. Rcnganatlian.
Shortly after the execution of PI certain persons as the trustees of theVaithceswaram Temple filod D. C. Jaffna Case No. 11429 against theplaintiffs for declaration of title to the land in suit and for ejectment anddamages on tho basis that the land was tho proper^' of tho temple.Tho ovidenco of Proctor Visuvanathan, which tho trial Judge hasaccepted, is that on the filing of that action the 1st plaintiff and the1st defendant retained him to appear for tho defendants in the actionand that while the 1st defendant did not intervene as a part}' he renderedsuch assistance as ho could in the defence of it. Judgment was howevergiven in favour of the plaintiffs in that caso and on the advice of counselno appeal was preferred against it. The 1st plaintiff eventually paid asum of Rs. 1,000 in full settlement of the damages and costs awarded.Apart from the evidence of the 1st plaintiff, the conduct of the 1st de-fendant as spoken to by Proctor Visuvanathan clearly indicates that the1st plaintiff had given him notice of tho filing of case No. 11429 and thatthe purport of the notice was that he should warrant and dofoncl tho titleconveyed on PI. We sec no reason, therefore, to interfere with thefinding of the trial Judge that notice to warrant and defend title was dulygiven to the 1st defendant.'
Whcro several vendors have entered into a covenant to warrant anddefend the title conveped by them, the law is clear that in the ovont ofthe vendee being involved in litigation in which that title is questioned itis incumbent on him to give notice to warrant and defend tit-1 o to eachof his vendors whom he seeks to hold liable imdor the covenant,Subraniania-m el al. v. Sivaguru h The notice need not, however, boin writing and it would be sufficient if such notice could be implied fromthe surrounding circumstances as having boen given orally.
Tho question that arises in the present caso is whether the notice thathas been held to have been given to the 1st defendant can bo construedas a notice to tho 2nd defendant as well. Tho 1st plaintiff in his evidencedid not say that a separate notice was given to the 2nd defendant. Thepiosition taken up by him at the trial seems to havo been that since the .defendants arc governed by the law of Tcsaivalamai the 1st defendantas the husband is the manager of the 2nd defendant’s property and there-fore Jiotico to the 1st defendant alone was sufficient. It was on thisbasis that the learned trial Judge gave judgment against tho 2nddefendant. Ifo also took the view that under tho law of Tcsaivalamaitho husband is the agent of his wife.
It was held in Sangarapillai v. Deverajah A[udaliycir – that in tho casoof husband and wife who aro govornod by tho Tcsaivalamai “ the husbandis the sole or irremovable attorney of tho wife ” in respect of tedialalem
(1041) V. L. Jl. 124.
– (1936) 3S -V. L. Jl. 1.
542
– WEERASOOHIVA, J.—Durai rajah v. Rfailuaganam
property and that as such he had the power to alienate or mortgage itfor valuablo consideration. In that case, however, the questions that. arose for decision were in regard to the correct interpretation of sections.
and 20 of The Jaffna Matrimonial Rights and Inheritance Ordinance(Cap. 48) prior to their amendment by Ordinance No. 5S of 1947. Section
(in its unamended form) provided that the tediatatem of each spouse
shall be property common to either spouse and that although it is acquiredby either spouse and retained in his or her namo both shall be equallyentitled thereto. But, as pointed out by Gratiaen, J., in Kumarastvamyet al. v. Subramaniam el al. *, tho amending Ordinance introduced afundamental alteration in regard to the vesting of title in the non-acquiring spouse to tediatalem property acquired by the other spouse,and he expressed the view that such property, if acquired by one spouseafter the date on which that Ordinance came into operation, must beregarded as the separate property of the acquiring spouse subject, how-ever, to the devolution of the same on tho death of the acquiring spouseunder section 20 (as amended by that Ordinance). On the view expressedby Gratiaen, J., it would seem doubtful whether the decision in San-garapillai v Devarajah hludaliyar {supra) and earlier decisions relating tothe husband’s marital power over the tediatatem property of his wifeapply in so far as such property has been acquired after the amendingOrdinance No. 58 of 1947 came into operation. But it is not necessaryto decide the point in the present case since I am of tho opinion that onthe ovidence adduced at the trial it is. not possible to hold that the landin suit is the 2nd defendant’s tediatatem property as defined in section 19 asamended by Ordinance No. 58 of 1947, which governs the case since P3,which is the 2nd defendant’s source of title, was executed after thatOrdinance had come into operation.-
As I have already stated, no issue was raised whether this land is -the 2nd defendant’s separate property and it was, no doubt, for thatreason that no evidence was adduced at the trial as specifically rele-vant to that question. Even if the statement imputed to the 2nddefendant in the recital in P3 that the purchase price represented aportion of her dowry is disregarded as being merely hearsay (the 2nddefendent not having given evidence) there seems to he no groundin view of the definition of tediatatem property in the amended section 19to hold that it has been estabished that the land is property of that des-cription. While the subsequent deed PI, under which the defendantspurported to convey to the plaintiffs the title acquired on P3, contains arecital that the 1st defendant also was “ seised and possessed ” of the land,
I do not think that much value can bo attached to it in view of its equi-vocal nature. It is also possible that the recital, in so far as it relates(if it does relate) to the title of the 1st defendant in the land conveyed,,was based on an incorrect understanding of the legal position in regard toproperty acquired by tho 2nd defendant after tho coming into operationof Ordinance No. 58 of 1947.'
The question whether the requisite notice to warrant and defend titlewas given by the 1st plaintiff to the 2nd defendant when he gave such
{1051) 50 -V. X. n. 44.
Poditncnihc Kmnarihamy v. Abcykoon Banda
543
notice to tlio 1st defendant must, therefore, bo decided on the basis thatthe land in suit is not the tediataiem property of the 2nd defendant andis her separate property.
Mr. Nadarasa for the plaintiffs addressed to us tlio submission thatunder the Tesaicalamai the husband is tlio manager of even his wife’sseparate property and, therefore, the agent of the wife for the purposeof any notice required to be given in respect of such property. (I usethe expression “ separate property ” hero as meaning separate propertyother than tediataiem property acquired after Ordinance No. 58 of 1947camo into operation and which, according to Gratiaen, J., in Kv.ma.ra-sicamy ot al. v Subramaniam et cl. (supra), would also bo a species of sepa-rate property). The submission of Mr. Nadarasa is, however, in the teethof section 6 of tlio Jaffna Matrimonial Rights and Inheritance Ordinance(Cap. 43) from the terms of which it is clear that in the caso of immovableproperty forming tho wife’s separate estato she has full pow ers ofmanaging it or of leasing or mortgaging it independently of her husbandwhoso written consent is necessary only for a transfer of it.
I hold, therefore, that the notice given to the 1st defendant to warrantand defend titlo is not a notico to the 2nd defendant. The judgmentand decree of tho Court below as against the 2nd defendant mustaccordingly bo set aside and the plaintiffs’ action against her dismissedwith costs in both Courts.
In regard to the judgment and decree as against the 1st defendant, itwas pointed out by Mr. Rcnganathan that on tlio findings of the trialJudgo the amount of damages payablo should be Rs, 4,750 and notIts. 4,950. This was conceded by Mr. Nadarasa. The decree appealedfrom will bo varied by substituting Rs. 4,750 in place of the sumof Rs. 4,950. Subject to this variation the appeal of the 1st defendantis dismissed with costs.
S-iXSONi, J.—I agree.
Appeal of 1st defendant dismissed.
Appeal of 2?id defendant allowed.