062-NLR-NLR-V-19-PONNAMAH-v.-KANAGASURIYAM.pdf
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Present : Ennis J. and Schneider A.J.lftlA,
PONNAMAH v.1KANAGASURIYAM.'
27—D. G. Jaffna, 9,468.
Tesawalamai—Acquiredproperty—Propertyacquired aftermarriage—
Insurance policy—Improvements effected on joint, property after
marriage—Tesawalamai, s. 1 (16).
All property purchased after the date of marriage is presumed tobe acquired property until the contrary is proved.
The value of premiums paid during marriage.' on the husband’slife insurance policy was held to be acquired property.
. There a husband bought three-fourths share of a land beforemarriage, and one-fourth share after marriage, and spent moneyfor improvements on the land after marriage—
Held, that section 1, sub-section (16), did not apply.
HE facts are set out in the judgment.
A. St. V. Jayewardene and Arulanandan, for the appellant.
Baiva. K.C., and Balasingham, for the respondent.
Cur. adv. vult.
July 11, 1916. Ennis J.—
This was an action for divorce. The plaintiff, in addition, prayedfor a division of the property, for alimony, and for provision fora child of the marriage, a daughter. She obtained a decree fordivorce, and has been awarded Us. 6,925 as the half share of theproperty found by the Court to be divisible between the parties.
Her claim for alimony was refused, and a sum of Rs. 2,500 wasordered to be settled on the child. The defendant appeals from theorder allowing the plaintiff Rs. 6,925 and the order settling Rs. 2,500on the child. The plaintiff’s claim in respect of the property to bedivided is found in a schedule to the plaint. The parties appear tohave agreed to divide between them the property acquired after themarriage. They appear, further, to have agreed that the Tesa-walamai should control the decision as to what property is acquiredproperty. Following this rule, the learned Judge has held that allproperty purchased after the date of marriage is presumed to beacquired property under the' Tesawalamai until the contrary isproved. The case in Muttukristna’s Tesawalamai, at page 30, seemsto support that contention, and also in Katiresu’s Tesawalamai twocases are cited for the same proposition. The presumption wouldappear to be correct, because- at the time when the Tesawalamai waswritten it would seem that a son, before marriage and during thelifetime of his father, could riot hold for himself any property gained
1016.
Emus J.
Ponnomah
«. Kanaga *
euriyarn
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or earned by him during the time of his bachelorhood; it all belonged.to his father. So that on the marriage tho property brought together,which is dealt with in section 1 of the Tesawalamai, would be, onthe side of the husband, such property as the son had received as agift from his father, or, if his father had been dead at the time, hadinherited from him, and purchases after that would presumably bemade from the profits which section 1 distinctly says are acquiredproperty. On this ground the learned District Judge has dealt witheach of the items in the schedule.
On appeal four of these items only as settled by the learnedDistrict Judge have been pressed for our consideration, namely,Nos. 1, 3, 7, and 8.
With regard to the item No.' 1, it appears that the plaintiff enteredinto a contract for the purchase of certain land prior to his marriage.After the marriage he paid a sum of Rs. 200 to complete the purchasemoney. The District Judge holds that this sum of Rs. 200 was paidfrom the acquired property. The defendant in giving evidencedoes not say that it was not so paid, and applying the presumptionapplied by the learned District Judge the finding is right.
With regard to item No. 3, a sum of Rs. 8,830 was held by theJudge to be acquired property. This sum was received from theNotary Sithamparapillai, and was paid in respect of the acknowledgeddebt of Rs. 7,000 and another acknowledged debt of Rs. 1,500, andthe balance being interest. The defendant stated that the sum ofRs. 7,000 was paid in respect of a half share of the land calledN&vfttkadu, which had been gifted to him at the request of hissister by Sithamparapillai. It appears that the defendant receivedthis deed of gift in 1906, the marriage of the parties was in 1901.The deed of gift purported to be in consideration of natural loveand affection. In 1912 the defendant instituted a partition action inrespect of this land. That action was No. 8,329 in the District Court.He further instituted another action, No. 8,439, in the DistrictCourt fpr the recovery of Rs. 4,870, money paid as surety for a debtdue to Manicam by Sithamparapillai gnd his wife. The defendantin his evidence stated that the land Navatkadu was purchased in1902 with the money borrowed from Manicam.* These two actionswere settled, and according to the evidence the defendant acceptedRs. 7,000 for his share of the land, and Rs. 1,500 in respect of thepayments he had made to Manicam on Sithamparapillai’s behalf.The learned District Judge^has held that the deed of gift by Sitham-parapillai was in fact made not as a gift, but because Sithampara-pillai had purchased the land for the defendant. In arriving atthat conclusion, he seems to have taken into consideration the caseNo. 8,329. No copy of that case has been put in evidence, so thatthe reason for the finding, so far as it is based on that case, fails.However, it would seem that the two cases were settled at the sametime, and if Rs. 7.000 was the sum paid in respect of the land, and
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Es. 1,500 in respect; of money paid on. behalf of Sithamparapillai, asum of Bs. 3,000 odd of the moneys paid by the defendant to Manicamremains unaccounted for. That money, it would seem from the caseNo. 8,439, came out of the profits which accrued to the defendantduring the time of his marriage. On that basis the onus of proof asto why this sum of Bs. 3,000 odd should have disappeared in thesettlement was on the defendant. The finding of the Judge,therefore, that the so-called deed was not in fact a gift, but a transferfollowing on money consideration, finds some support in an inferencefrom the terms of the settlement, as the defendant admits that in1906, the date of the gift, the value of the share of the land thensaid to be gifted was Bs. 3,000. In these circumstances, I do notfeel * lclined to interfere with the finding that the sum claimed initem No. 3 was of acquired property.
With regard to item No. 7, the plaintiff claimed Bs. 5,000 as thevalue of a life insurance policy. Bs. 2,100, the amount of premiuxnpaid to date, has been held by the Judge to be acquired property.Inasmuch as the full sum was payable in. 1918, and the premiumsstill to be paid were at the rate of less than Bs, 500 per year, theamount found to be acquired property would seem to be too littlein respect of this policy. However, the- plaintiff’s counsel in theCourt below waived any excess. The policy was taken out afterthe marriage, and applying the presumption I have already referredto, the premiums have been paid out of the acquired property.
With regard to item No. 8, this was a sum of Bs. 1,800 said tobe due from one Nagalingam. The defendant stood security forNagalingam, and was sued in that capacity. He says that in orderto pay the debt he sold the land marked No. 2 in the schedule andpaid the debt with the proceeds, and that he subsequently recoveredfrom Nagalingam the sum of Bs. 1,800. The District Judge hasfoiled that the land mentioned in item No. 2 to the schedule wasnot acquired property, and seeing that the item No. 8 is the proceedson the conversion of that property, I consider that the learnedDistrict Judge was wrong iu holding it to be acquired property.Before leaving the question as to what property has been acquired,I should mention a sum of Bs. 2,000 in respect of the first item onthe schedule. This sum was money paid for improvements on acertain land at Anuradhapura. It was urged that this Bs.. 2,000was expended on mudusam property, and, therefore, attached tothat property, but inasmuch as one-fourth of the land was purchasedafter the marriage, the wife was a co-owner in the land, and theimprovements effected could not be held to attach exclusively to themudusam property of the defendant. Inasmuch as the property wasnot hereditary property, in that it never belonged to the defendant'sfather, but was purchased by the defendant, and so does not fallwithin the definition of mudvsam property given in section 1 (1),and sub-section (16) does not apply.
me.
Enotb J.
Pormamakv. Kanaga*auriyam
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1916.
Ennis J.
Ponnamahv. Kanaga-
suriyam
With regard to the settlement of Us. 2,500 on the child, the partieshave departed from their adherence to the Tesawalamai in the lawapplicable as to this claim. Section 622 of the Civil Procedure Codeis the only provision now existing with regard to the interests ofchildren in case of divorce in such a case as this. That sectionenables the Court to make orders with respect to the custody,maintenance, and education of the minor children. Strictly speak-ing, there is a difference between a settlement for the benefit ofthe minor child and an order for maintenance. Counsel for theappellant does not wish to press this distinction, inasmuch as themoney is for the benefit of tlie child. The order must be deemed tobe an order under section 622 of the Civil Procedure Code, and theCourt should give directions as to the investment of this moneyand the payment of the interest. In the judgment there is a clericalerror of Rs. 100 in the item of Rs. 300 enumerated in the sums addedtogether and found to be Rs. 13,850; the amount found to be acquiredproperty, in respect of item No, 12 was Rs. 200 only, and not Rs. 300.I would' accordingly amend the decree by reducing the amountpayable to the plaintiff from Rs. 6,925 to Rs. 5,975. Each partyshould, in my opinion, pay its own costs on the appeal.
Schneider A.J.—I agree.
Varied.