064-NLR-NLR-V-08-KANTAMMA-v.-KANAPATHIPILLEY-et-al.pdf
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KANTAMMA t>. KANAPATHIPILLEY et ahC. R. Jaffna, 27,584.
Tesawalamai—Wife’s chose inaction—Rightsof husband—Merger—
Otty bond—“ Matrimonial Rights Ordinance, 1876. ”
According to the Tesawalami a chose in action belonging to thewife does not vest in the husband.
T
HE plaintiff, who is the wife of the second defendant, sued’one Kanapathipilley and her husband for the recovery of
the amount due on an otty deed granted by the second defendantin 1872 in favour of the plaintiff’s mother, who died intestateleaving plaintiff as her sole representative. The first defendanthad purchased the land from the second defendant subject to theotty bond. The first defendant pleaded that the claim was barred* hy prescription r
The Commissioner overruled * the plea of prescription, and gavejudgment for plaintiff as prayed with costs.
In appeal.
Wadsworth, for first defendant, appellant.
E. W- Jayawardene (H. Jayewardene with *him), for plaintiff,respondent.
2nd February, 1906. Wendt, J.—
The plaintiff in this case is the wife of the second defendantliving separately from him, and she seeks to recover an otty debtincurred by second defendant in 1872. The original otty holder was. plaintiff’s mother* to whom plaintiff has succeeded ab intestato.
1806.
February 2.
1900.
February 2,Wendt, j.
The first defendant is a purchaser from second defendant of the landsubject to the encumbrance. The only issues tried in the Court belowwere whether or not first defendant took the land free of the otty,and whether the debt was prescribed.These points are no
longer in question. When the appeal was first argued (before theChief Justice) the Ordinance No. 15 of 1876 was regarded as appli-cable to the parties, and on that footing this Court was of 'opinionthat the mortgagee's rights, as a chose in action belonging to plaintiff,had vested in her husband, the second defendant, and so being lostby merger. It was subsequently discovered that that Ordinancedid not govern Tamils in Jaffna, and the judgment did hot pass theseal. Parties are now agreed that the Tesawalamai regulatestheir -rights, and the question is whether there is anything in thatcustomary law which deprives plaintiff of her right to enforce theotty. I am of opinion there is not. On the contrary, the Thesawaleme-regards a wife's inherited property as being, like her dowry, herseparate property. See a case reported at page 261 of Mutukisna’sedition, where a similar action like the present was sustained bothby the District Court and this Court in.Appeal. Appellant's counselsought to raise a further question as. to whether the share conveyedto the first defendant could alone be made liable for the defendant.No issue was raised on this point, and consequently the factsnecessary for its determination have not been brought out. I,therefore, decline to consider it. The appeal is dismissed with costs. ‘