054-NLR-NLR-V-71-M.-H.-N.-RAJARATNAM-and-others-Appellants-and-F.D.-CHINNAKONE-Respondent.pdf
H. N. G. FERNANDO, C.J.—Rajaralnam v. Chinnakone
241
1988 Pres nt: H. N. G. Fernando* C.J., Alles, 3.$ and WijayatilaKe, J.
M.II. N. RAJARATNAM and others, Appellants, and F. D. CHINNA-
KONE, Respondent
S. C. 350)65 (Inly.)—D. C. Jaffna. 660/P
Divorce—Action for dissolution of marriage—Effect of decree nisi being madeabsolute—Precise dale on which the marriage is legally dissolved—Ihcsavalamai—Thedintheddum— Husband's power to alienate his wife's share of it—Dale whensuch power terminates— Civil Procedure Code, ss. .188, COS.
in an action for dissolution of marriage, the decree nisi is net effective todissolve the marriage, and it is only the decree absolute which has that effect.
Decree nisi was signed by the District Judge on 23rd January 1913, and on23rd September 194S the Judge made an order ** I therefore order that decreejjjsi be made absolute ”. An endorsement in pursuance of that order was not-made at that stage in the decree nisi itself. The endorsement was in fact madeand signed by the Judge on 20th February' 1900.
Held, that the decree became absolute on 23rd September 1948. Theendorsement of 20th February 1950 was only a ministerial act which gaveformal effect to the judicial order making the decree absolute.
Held further, that, as the husband and wife in the present case were subjectto the Thcsavolamai, the husband ceased, on the date when the decree nisiwas made absolute, to be the “ irremovable attorney ” of his wife in respect ofher share of thediatheddam property.
Sj> PPEAL from a judgment of the District Court, Jaffna.
II. IF. Jayew&rdene, Q.C., with J. V. C. Nathaniel and M. Sfuinmuga-na'.hart, for the Defendants-Appellants.
C. Ranganaikan, Q.C., with K. Kanag-Iswaran and G. Sandra3agara,for the P.aintiif-Respondent.
Cur. adv. wilt.
September 24,1968. H. N. G. Fernando, C.J.—
The learned District Judge has held in 'his case that upon the entryof decree absolute on 22nd September (sic 23rd) 1948 for the dissolutionof the marriage of the parents of the plaintiff, the thediatheddam share ofthe plaintiff’s mother vested in her. It has been argued in appeal thatthe date of the decree abso'ute must be held to be 20th February 1950,and not S eptember 23, 1948.
22 – PP 006137 (98/08)
242
H. N. G. FERNANDO, C-J.—Rajaratnam v. ChinnaJcon«
The decree nisi was signed by the District Judge on 23rd January 1948,and on 23rd September 1948 the Judge made an order “ I therefore orderthat decree nisi be made absolute The record shows, that an endorse-ment in pursuance of the order was not made at that stage in the decreenisi itself. The endorsement was in fact made and signed by the Judgeon 20th February 1950. It is necessary to determine on these facts theprecise date on which the marriage of the plaintiff’s parents was legallydissolved.
It is clear law that the entry of decree nisi for dissolution of a marriagedoes not terminate the status of the parties as husband and wife. In theAserappa case1, this Court disapproved of a practice sometimes adoptedof a Court entering a decree absolute without being moved to do so byone of the parties ; and in the de Silva case * the Privy Council referred tothe need for an application to be made by a party before the Courtmakes absolute the decree of dissolution. In view therefore of thepossibility that neither party may seek to have the decree nisi madeabsolute, the decree nisi is not effective to dissolve the marriage, andit is only the decree absolute which has that effect. Mr. Jayewardenerightly pointed out during the argument of the present appeal that theEnglish procedure for a decree nisi in the first instance (which wasincorporated in our Code) was designed to give the parties an opportunityfor reconciliation.
Having regard to the iaw as just stated, s. 188 of the Civil ProcedureCode cannot apply in the case of a decree absolute for dissolution of amarriage, which must not therefore be dated as of the date of the judg-ment. There is no doubt therefore that the dissolution of the marriagein tin's case could not have been legally effective at any time prior to thetime when the Court made the decree absolute in terms of s. 605 of theCode. The section reads thus :—
“ Whenever a decree nisi has been made and no sufficient cause hasbeen shown why the same should not be made absolute as in the lastpreceding section provided within the time therein limited, such decreenisi shall on the expiration of such time be made absolute .”
The section contemplated that the existing decree nisi “ shall be madeabsolute ”, and, when the Court (as it did in this case) has signed an order■' that the decree nisi be made absolute ”, the Court has done all that thesection requires to make the decree absolute. I hold therefore that thedecree under consideration became absolute when the Judge signed thisorder on 23'd September 1948. The circumstance that the formalendorsement in pursuance of that order was signed only on a later datedoes not in my opinion alter the position. The signature of the formalendorsement is only a ministerial act which gives formal effect to thejudicial order making the decree absolute ; and at this stage in the actionthere is no reason why the principle recognised in s. 188 (that a decreedates back to the date of adjudication) should not apply.
* (1935) 37 N. L. R. 372.C * (1936) 38 N. L. R. 63.
H. N. Q. FERNANDO, CJ.—Rqjaratnam v. GMimaborM
243
I turn now to the other question which arises in this appeal. It isnow common ground that the land which is the subject of this action wasthediatheddam property of the plaintiff’s parents. The plaintiff’s fatherChinnakone sold a half share of the land to one Rajaratnam by the deedD1 of October 1948. Thereafter by D2 of 12th January 1949 he againdisposed of a hal: share of the land, stating on this occasion that he hadhimself acquired the and with his mudusom. The deed D2 was noteffective to convey the half-share of Chinakone’s wife, because (as I haveheld already; Chinnakone’s marriage was dissolved when the decree fordissolution became absolute on 23rd September 1948; and it wrasconceded at the argument that the wife did have a half-share, even ifthe land had been acquired with Chinakone’s mudusom.
The plaintiff acquired title to his mother’s half-share by the gift 1*6of 1962, and he brought t his action against Rajaratnam’s heirs in August1962 for a partition of the land on the basis that he is entitled to thathalf-share. Having regard to the findings recorded earlier in th s judg- -ment, the only question which remains is whether Rajaratnam and hisheirs have acquired prescriptive title to the half-share of Chinnakone’sformer wife.
There is no doubt that Rajaratnam was aware that this land wasthediatheddam property: he bought one half-share from Chinnakone in.October 1948, and only 3 months later he bought the other ha f-share ona deed in which Chinnakone made a weak and futile attempt to claim thisshare os his own by describing the land as on acquisition made with hismudusom. Moreover, I see no reason upon the evidence to doubt thecorrectness of the Judge’s1 opinion that Rajaratnam knew of the dis-solution of Chinnakone’s marriage. – He thus knew also that the deed D2of January 1949 was ineffective to pass title to the share it purported toconvey, because Chinnakone had by then ceased to be the “ irremovableattorney ** of his former wife. He became a co-owner with that lady inOctober 194S, and he and his heirs could acquire title by prescriptionagainst her only in accordance with the rules governing prescription byone co-owner against another. I am not impressed in this connectionby the argument that this case must be considered as one against theestate of a deceased person. The defendants claim a title by prescriptionby virtue of possession by Rajaratnam and by themselves for a period ofabout 13 years, and they have not proved even that Rajaratnam diedonly after possessing the land for over 10 years.
There is no doubt that Rajaratnam demolished the fences which hadformerly separated this and from an adjoining land owned by himselfand his wife, that he erected fenoes round a corpus consisting of both thelands, and that he planted this land and took its produce for himselfexclusively. But the learned Judge’s find:ng that there was no evidenceof ouster is supported by evidence which has not been disbelieved. Theplaintiff’s mother stated that she noticed the new fences when she visited -the land in 1949, and that she then had a discussion with Rajaratnam;he then asked her to dill her share to him, and added “ if you are not
2-14Sovth Ceyloit Democratic Workers' Union v. Selvcdurai
selling your land, we will have the land partitioned. Till I purchase yourshare let there be no fence In this state of he evidence, I mustagree with the finding of the learned trial Judge that the defendantsfailed to discharge the burden tf proving an ouster or somethingequivalent to ouster.
The judgment of th > District Judge is affirmed, and the appeal is
dismissed wi.h cos.a.
Alles, J.—I agree.Wijayatilake, J.—I agree.
Appeal dismissed.