016-NLR-NLR-V-35-KANDAPPA-v.-ARUPALAVANAM-et-al.pdf
Kandappa v. Arupalavanam.
105
1932
Present: Macdonell CJ. and Dalton J.
KANDAPPA v. ARUPALAVANAM et al.
272—D. C. Jaffna, 26,459.
Thesawalamai—Voluntary separation of spouses—Tediatetam—Propertyacquired by husband after separation—Claim by wife—Ordinance No. 1
of 1911, ss. 21 and 22.
Where spouses, whose matrimonial rights are governed by the Thesa-walamai, entered into a deed of separation which contained the followingprovision, among others:—“We further declare that of .the landsbelonging to either of us on this date, prior to this date, or after this date,the lands that are in the name of either of us shall remain the propertyof the person in whose name the property is and that in the lands in thename of any one of us or in the lands that any one of us may becomeentitled to, the other shall have no claim whatever on any groundswhatsoever ”,—
Held, that the wife had no claim on the property acquired by thehusband after the execution of the deed of separation.
106
MACDONELL. C.J.—Kandappa v. Arupalavanam.
PPEAL from a judgment of the District Judge of Jaffna.
H. V. Perera (with him Tillanathan), for plaintiff, appellant.
N. E. Weerasooria (with him Gnanapragasam), for second defendant,respondent.
November 10,1932. Macdonell C.J.—
I have had the advantage of reading my brother Dalton’s judgmentand I concur in it. But 1 would wish to state my own view of sections21 and 22 of Ordinance No. 1 of 1911.
This land Ollaipulam may be taken to have become tediatetam whenacquired by the husband in 1919. He conveyed it on 2 D 4 to the plaintiffon May 15, 1920, a conveyance, doubtless, which he had no right to makebut this wronful act was condoned, if the expression can be used, byhis wife the second defendant in the present action, by the settlement ofAugust 16, 1922 (P 12) under which the plaintiff in the present action wasto convey Ollaipulam to her for Rs. 1.400; she was a party to thissettlement and after executing it could hardly be heard to say that herhusband had no right to make the conveyance 2 D 4 or that the landOllaipulam after the settlement P 12 was still tediatetam. How could itbe if she had agreed to buy it from the present plaintiff? In actual factshe did. not buy it but allowed her father to do so, a variation of thesettlement P 12 to which clearly she consented. Then her father, since1922 owner of Ollaipulam, conveyed it to her husband on P 4 on January5, 1925. Once back in her husband’s ownership, her case must be thatit thereby again became tediatetam.
Section 21 of Ordinance No. 1 of 1911 says: “ The following property shallbe known as the tediatetam of any husband or wife; (a) property acquiredfor valuable consideration by either husband or wife during the subsistenceof marriage”. Now this land was property acquired by the husbandfor valuable consideration on P 4 of January 5, 1925, and the marriagesubsisted then and does still in the sense that it has not legally beendissolved, and if this provision in section 21 stood alone, it would bedifficult to say that this land did not again become tediatetam immediatelyon its transfer to the husband on P 4. But section 21 must be read withsection 22 which says this: —
“ The tediatetam of each spouse shall be property common to the twospouses, that is to say, although it is acquired by either spouse andretained in his or her name, both shall be equally entitled thereto.Subject to the provisions of the Tesawalamai relating to liability to beapplied for payment or liquidation of debts contracted by the spousesor either of them on the death intestate of either spouse, one-half ofthis joint property shall remain the property of the survivor and theother half shall vest in the heirs of the deceased; and on the dissolutionof a marriage or a separation a mensa et thoro, each spouse shall takefor his or her own separate use one-half of the joint propertyaforesaid ”.
DALTON J.—Kandappa v. Arupalavanam.
107
This section treats dissolution of the marriage and separation of thespouses a mensa et thoro—I think the separation deed P 1 is a separationa mensa et thoro—equally as putting an end to the community of propertybetween the spouses. Verbally it may be held to contradict section 21,but then one must remember that it is provided for something furtherthan section 21 provides for. The former section says what propertybecomes tediatetam and when, sc during the subsistence of the marriage;the latter section goes on to enact what shall happen to the tediatetamproperty when the marriage no longer subsists, and it seems to say thatthe marriage will no longer “ subsist ”, for the purpose of that communityof property known as tediatetam, in either of two events, dissolution ofmarriage or separation. If one wishes, one can say that the draftsmanof sections 21 and 22 has created his own terminology—he is at liberty todo so provided he makes himself intelligible—and has said that on themarriage ceasing to subsist either because of dissolution or because ofseparation, each spouse will take one-half of the joint property for his orher separate use. With this section 22 to guide us, we can now go backto section 21 and read it with section 22, and, so read, it seems to say thattediatetam property is property acquired for valuable consideration byeither husband or wife as long as the marriage has not ceased to subsisteither by reason of its dissolution or by reason of the separation of thespouses. It will follow then that if a marriage has ceased to “ subsist ”because of the happening of either of these events, then the characteristictediatetam will not attach to after-acquired property. This is a case ofsuch after-acquired property—confessedly, since it came to the husbandin 1925, while the separation took place in 1922—and if so the claim ofthe wife to it fails. Construed together, the two sections 21 and 22, seemto me to lead to this interpretation. I agree in the order proposed.
Dalton J.—
The plaintiff brought this action against the two defendants, husbandand wife, for declaration of title to a piece of land named Ollaipulam,8 lachams in extent. He has been successful in respect of one-half shareof the land only, his action as against the second defendant and what iscalled her half share being dismissed with costs. From the latter part ofthat judgment he appeals.
The defendants, husband and wife, were married in 1914, and aregoverned by the thesaioalamai. The property in question formed partof what was acquired by the husband during the marriage, in the year
It is not questioned that it was then tediatetam. In February,
the husband is said to have deserted his wife, and on May 15, 1920,he conveyed the property in question by the deed marked 2 D 4 to hishalf brother, the present plaintiff. The consideration is said to havebeen Rs. 1,000, and the property was subject to a mortgage, the sum ofRs. 415 for principal and interest being deducted from the sum of Rs. 1,000.In July, 1920, the wife filed an action (No. 14,871) against her husbandfor judicial separation, and also for a division of the property acquiredby him after the marriage, in which connection the land Ollaipulam wasspecially mentioned. In his answer the husband denied the allegationsupon which the wife based her claim for a judicial separation, and pleaded
108
DALTON J.—Kandappa v. Arupalavanam.
that the property in question had already been disposed of by him. Hefurther set out that his wife had obtained an order for maintenance whichwas still in force.
In October, 1921, the wife had commenced another action, D. C.Jaffna, No. 16,213, against three defendants, one Aiyathurai, her hus-band, and the present plaintiff, for the purpose of setting aside a decreeand judgment obtained by Aiyathurai against her husband in a claimon a promissory note. Aiyathurai had obtained a writ and seized theland Ollaipulam, and the sale had been fixed. She set out in her plaintthat the three defendants were acting in collusion to deprive her of theshare she claimed in the land.
After some time a settlement, including both actions Nos. 14,871 and16,213, was arrived at between the parties. This is the document P 12dated August 16, 1922. By the terms of that agreement the plaintiff,the wife, was to pay the sum of Rs. 1,400 to the third defendant (thepresent plaintiff), and on that sum being paid, the third defendant (thepresent plaintiff) was to convey the land Ollaipulam to her. She wasalso to have the conveyance of the life interest of her husband in anotherland called Vellipulam, which life interest had been purchased by thethird defendant (the present plaintiff). It was further agreed that shewas to withdraw case No. 14,871 without costs. With regard to themaintenance due to the wife under order in P. C. Kayts, No. 6,572, sheagreed to give her husband a receipt in consideration of the transfer ofthe aforementioned properties. Aiyathurai also agreed to take no stepsto recover the balance due to him on his judgment, if the settlement wascarried out. It was to be carried out within one month.
On September 18 the case No. 16,213 was withdrawn, an order beingmade that it be dismissed with costs. Case No. 14,871 was withdrawnwithout costs. On August 26 the present plaintiff was paid the sum ofRs. 1,400 by the wife’s father, Veerappa Velauther, and he conveyedthe land Ollaipulam (P 3) on that date to him. The wife was apparentlyunable to raise the money herself. On the same day the present plaintiffconveyed (deed 2 D 7) to the wife the life interest he had purchased in thesecond land Vellipulam. The third document signed that day was thedeed P 1, a deed of separation between husband and wife. All these threelast mentioned documents were signed before the same notary, the twowitnesses to 2 D 7 being also the same as those on P 3. One of thesewitnesses was also a witness to the deed of separation P 1.
It is clear from these facts that within a month of the settlement theterms of the settlement had all been carried out, with one variation.The Rs. 1,400 was not paid by the wife, but by the father, and in returnfor that payment the land Ollaipulam was conveyed not to her, but tohim. Under the circumstances there cannot, however, be the least doubtthat this variation was made with her full knowledge and consent. Shecannot be heard then to say that it was not carried into effect.
The principal provisions of the deed of separation between husbandand wife, which must of course be construed in light of the other con-ditions of the settlement between the parties, were as follows:—They
DALTON J.—Kandappa v. Arupalavanam.
109
refer to the reasons whereby they are unable to live together as husbandand wife, and they agree in future to live apart. The conveyance' of thelife interest of the husband in the land Vellipulam is mentioned, and thewithdrawal of the claim for maintenance in case No. 6,572. They go onto declare that—
“ of the lands belonging to either of us on this date, prior to this date,or after this date, the lands that are in the name of either of us shallremain the property of the person in whose name the property is, andthat in the lands in the name of anyone of us or in the lands thatanyone of us may become entitled to, the other shall have no claimwhatever on any grounds whatever.”
The wife is given full right to deal with her own property as she wishes,without the interference of her husband, and without his consent beingobtained. If consent is necessary, he purports to give it in the deed.Finally, they agree that all rights arising from matrimonial relationshipare at an end. The land Ollaipulam was not referred to in the deed, forit had already been conveyed the same day by the plaintiff to the wife’sfather. Neither the transferor nor transferee was a party to the deed ofseparation, but the deed was part of the larger scheme of settlement ofthe disputes between all the parties.
After the conveyance to her father the wife, according to her evidence,continued to live on the land, her father living two compounds away.There is nothing to suggest that they, the wife and father, have not beenliving on the friendliest terms right up to the hearing of this presentaction, and it seems that they are still doing so. The inference is thatthey are on the best of terms.
The next step in the history of this land Ollaipulam is in January, 1925.On January 5 the wife’s father Veerappa Velauther conveyed the land(deed P 4) to the husband for the sum of Rs. 1,500, Rs. 1,326 of which isstated to have been paid in the notary’s presence. I refer to this deedlater. The last step is in 1929, when the husband by deed P 2 conveyedthe land to the present plaintiff on -October 12, 1929, for the sum ofRs. 1,000, Rs. 140 of which is said to have been paid in the notary’spresence. That deed is the basis of plaintiff’s claim in the present action.
The first defendant, the husband, filed no answer to the claim, but thesecond defendant, the wife, laid claim to half the property on the footingthat it was tediatetam as from its purchase in 1919. Her claim is basedupon the fact that the marriage is still subsisting between the parties.How she could, in any event, therefore, in face of that fact obtain adeclaration that she was separately entitled to one-half of the land, it isdifficult to see.
Issues were framed, of which the most important is the first, in thefollowing terms: —Is the second defendant estopped from claiming anyshare in the land in dispute in view of the deed of August 26, -1922?(Deed of separation PI.) The trial Judge has found that the deed wasa most unjust bargain, and by it the wife is supposed to give up all herrights in property acquired during marriage. He is mistaken, however,on more than one question of fact. He states it is the plaintiff’s life
110
DALTON J.—Kandappa v. Arupala-uanam.
interest in the land Vellipulam which is conveyed to the wife by deed2 D 7, that the plaintiff is an old man and his life interest worth next tonothing. It is the husband’s life interest, however, which is conveyed,which the plaintiff had purchased. Then, as regards the settlement ofthe actions throughout which the wife had legal advisers, and as isevident, the assistance of her father, the ..learned trial Judge says thesettlement was an unconscionable and unfair settlement, and apparentlywas never carried out. On the facts I have recited, I can see nothingunconscionable and unfair in it. The learned trial Judge, however,seems to have come to this conclusion on the assumption that a worthlesslife interest in the land Vellipulam was conveyed to her, which conclusion,as I have pointed out, is incorrect.
The statement that the settlement was not carried out is not supportedby the facts. They all point to show it was carried out, with the one vari-ation to which I have referred. That variation, one is driven to conclude,was made with the consent of the wife, doubtless for her convenience.Plaintiff states he sold the land to her father at her request, and his evi-dence on this point is consistent with all the facts that are not questioned.The unsatisfactory nature of his evidence in general is referred to, and itis not questioned that the learned Judge’s view of the part plaintiffplayed may be quite correct, but he has not referred to some very unsatis-factory answers given by the wife in her evidence. She clearly wantedto deny responsibility for signing the deed of separation, but she eventuallyhad to admit it was signed by her. Then she wished to make out that byit she never intended to give up her rights to Ollaipulam, although shehad entered into a settlement whereby she was to pay Rs. 1,400 for thisland and have it conveyed to her, and although on the day of the signingof the deed of separation it was at her request conveyed to her father,who paid the sum of Rs. 1,400 for it. She seeks to make out that shepersonally knew nothing about the settlement of the two actions she hadbrought, or what she had agreed to do, but that her proctor had settledthe cases. Her father was not called as a witness to support her in thispresent action, presumably because his evidence could not help her.Although charges of collusion have been made against others, she has notsuggested her father in 1925, or at any other time, acted in collusion withthe husband or plaintiff. On the facts, in my opinion, the trial Judgewas wrong in holding that the terms of the settlement were in any wayunconscionable and unfair, and that they were not acted upon. Whenthe land Ollaipulam was sold to the wife’s father in 1922 with her consent,she retained no rights in it by virtue of her marriage.
It was urged, however, on appeal that in view of the fact that herhusband purchased the land again in 1925 by deep P 4, as a legal marriagestill subsisted at that date between her and her husband, although theywere living apart under the deed of separation, the property was tedia-tetam, being property acquired for valuable consideration during thesubsistence of the marriage, within the provisions of section 21 ofOrdinance No. 1 of 1911. It was further argued that the wife could not byany deed or agreement entered into by her do away with the effect of thelaw that property acquired for valuable consideration during marriagewas tediatetam. To deal with these arguments one has to consider the
Ill
DALTON J.—Kandappa v. ArupaUivanam.
effect of a deed of separation entered into by husband and wife in theterms of P 1, which I have already set out. In considering this questionI am assuming that the property in 1925 became tediatetam again, althoughit was held in Chellappa v. Valliamma1 that property acquired by onespouse after the separation is not property held in common. Mr. Weera-rsooria has asked us to reconsider that decision in view of what he statesare the explicit terms of section 21, but it is not necessary for the purposesof this case to do so. In any event I might point out that the effect ofsection 21 has been fully considered in Nalliah v. Ponnxah* which decisionis binding on this court.
Counsel has been able to refer us to no cases dealing with the effect ofa voluntary deed of separation on the joint property of spouses governedby the thesawatamai. I see no reason to think, however, they can be inany more favourable position than spouses married in community ofproperty under the common law, who have entered into a deed of separa-tion seeking to put an end to the community. One may therefore obtainassistance in answering this question from that source by way of analogy.It was held in Zeideman v. Zeideman3 that in Roman-Dutch law allcontracts which spouses might lawfully and effectually enter into witheach other before marriage may lawfully and effectually be entered intoby them during the subsistence of the marriage, in so far as regards andconcerns themselves, provided always that such contracts be not of sucha nature as to constitute either directly or indirectly a deed of donationfrom one spouse to another. (See Voet 23, 2.63; 24, 1.8) It wasfurther held, however, that all extra judicial contracts entered intobetween the spouses for the separation of goods in community and thenon-liability of each for the future debts which may be incurred bythe other are utterly ineffectual against creditors or other third partiesnot representing either of the spouses (Voet 24, 2.17 and 19). In alater case (Scholtz v. Felmore) the report of which I have beenunable to obtain, Sir Henry de Villiers (later Lord de Villiers) heldthat the general rule is that a voluntary deed of separation betweenparties is binding as between these parties, but that it does not affectthe right of creditors. In Danovich’s v. Danovich’s Executors11 thespouses had entered into a notarial agreement of separation, by whichthe community of property was cancelled. After the husband’s deaththe wife claimed half of the husband’s estate. On the facts hereit was held that the cancellation of the community amounted to adonation between husband and wife, and the wife was declared entitledto half the estate.
It is not necessary to consider the bearing of these cases so far asdonations between the spouses governed by the thesawalamai are con-cerned, since the deed of separation in this case can under no circumstancesbe called a donation. Applying the general principle of the commonlaw, in the absence of anything to show that such principle is in anyway repugnant to the law governing the parties here, I would hold thatthe deed P 1 is binding as between the parties; and the wife cannot now
11 Times of Ceylon Law Reports 274.* T Menzies 238.
a 22 N. L. R. 198.* 8. C. Jula's Reports 192.
5 (1919) Transvaal Provincial Divn. 198.
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DALTON J.—Kandappa v. Arupalavanam.
seek to obtain any benefit from property acquired by her husband afterthe execution of the deed contrary to its express terms. The answer tothe first issue should therefore have been in the affirmative, and the claimof the second defendant should have been rejected.
On the question of possession, the evidence is clear, assuming that thewife was in possession of the whole land from 1919 to 1922, in ,the latteryear, since the property was conveyed by her consent to her father, herpossession then continued with his permission, she recognizing his title.On the evidence she cannot establish title by prescription.
In all these circumstances, the finding of the trial Judge that the con-veyance by the husband, the first defendant, in 1929 to the plaintiff waswithout consideration does not in any way help the defence of the seconddefendant, nor is it repugnant to plaintiff’s claim.
The appeal must be allowed, and the decree entered in the lower Courtmust be set aside. Plaintiff is entitled to judgment in accordance withsub-sections (a) and (b) of the prayer of his plaint, with costs. There isno evidence as to damages. He is also entitled to the costs of this appeal.
Appeal allowed.