026-NLR-NLR-V-23-SEELACHCHY-v.-VISUVANATHAN-CHETTY.pdf
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[Full Bench.]
Present: Bertram C.J., De Sampayo J., and Garvin A.J.
SEELACHCHY v. VISUVANATHAN CHETTY.
147—D. C. Colombo,1,963.
Tesawalamai—Acquired property—Gift by husband—Claim by wifethat husband had no power to gift more than half share of acquiredproperty—Property situate out of JqJVid—=Applicability of Tesa-walaxnai.
S, a Tamil subject to TesavxUamdi, acquired after his marriagewith the plaintiff a property in Colombo and donated it to IS, his sonN executed a mortgage of the property, and it was sold in execu-tion, and purchased by the mortgagee (defendant).
Plaintiff brought this action to vindicate half of the propertyon the ground that it was part of the Ihediathetam, and that, there-fore, it was not competent to S, without the consent of his wife,the plaintiff, to donate more than a half share.
Held (Bertram C.JT. and De Sampayo J., Garvin A J. dissenpiente),that defendant’s title was good.
Bebx&am C.J.—Under the Tesawalamai community of goodsis restricted to acquisitions during marriage. The husband isthe manager of the common property. He can freely sell andmortgage the common property without the consent of the wife.But he cannot donate more than one-half. But if the husband,who is the absolute manager of the community, ignores the limita-tion of his powers of donation, and purports to make a gift of thewhole of one of the acquired properties, the donatdoh is not ipsofacto void so far as it relates to the wife’s share; and the wife is notentitled to an immediate rei vindicatio action against the doneefor her half share ; she or her heirs must wait till the dissolutionof the marriage by death or otherwise for some form of compensation.
Any property acquired in the course of trade by one of twospouses subject to the Tesawalamai in a part of the Colony outsideits special local sphere becomes ipso facto partnership property, aspart of the community. The legal title to that property in so faras it is immovable property does not pass to the community,inasmuch as we require special formalities for the passing of titleto immovables, where under our law it does not pass by operationof law. There passes, however, by the tacit agreement of thespouses, manifested by their not having made cm inconsistentmarriage settlement, an equitable right to have that propertydeclared part of the community.
When the plaintiff’s husband purchased the property, he acquiredit subject to a constructive trust in favour of his wife, and his wifewas entitled to sue him for a formal conveyance of her interest.But the right so acquired by the wife-could not prejudice anybona fide purchaser claiming from the donee of her husband.
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Db Samtavo J.—A husband may under the Temwalamai makea donation of the entirety of the acquired property, just as muchas he may sett or mortgage the same. Even if he may not, the wife,if she is prejudiced by any donation of acquired' property by thehusband, cannot seek to obtain as against a bona fide purchaser fromthe. donee a half share of the specific property, but can only askfor half of the acquired property as a whole, or for compensationfrom the husband's representatives.
Gabvrt A.J.—These premises at the time of the acquisition byS vested by operation of law equally in his wife. The husband hadnot the right to gift the entirety of the premises, and the appellantconsequently was not legally divested of her title to a half shareby her husband’s deed of gift.
T
HE facts are set out in the judgment of the District Judge(W. Wadsworth, Esq.):—
This is an action by the plaintiff for declaration of title to a halfshare of premises No. 80, Bankshall street, situated in Colombo. Theplaintiff bases her claim by. right of thfidiathetam or acquisition underthe Tesatoalamai law.
The foots material to the decision of this oase are these :—
More than forty years ago one Sangarapillai, a man of Jaffna, cameto Colombo and traded here in cigars. His parents were both Tamilsof Jaffna. In October, 1881, he went to Jaffna and married theplaintiff. At the time of the marriage he was not possessed of anyimmovable property. He had some money, with which he traded. ' He.had no mudiuom or hereditary property. Plaintiff was a native ofJaffna, both her parents were Tamils, and she was given dowry at thetime of marriage. After marriage, Sangarapillai came back to Colomboand traded as before. Plaintiff never came to Colombo, but remainedin Jaffna all her life. Sangarapillai used to go and see her occasionallyin Jaffna.
Sangarapillai made profits in his business, and acquired immovableproperties both in Colombo and in Jaffna. One of tho properties soacquired by him was premises No. 80, Bankshall street, the propertyin dispute in this case. The deed of transfer, No. 1,788 dated October4, 1894, conveyed the whole of the premises to him. The deed wasduly registered; Sangarapillai possessed the property.
By the marriage Sangarapillai and plaintiff had six children. Theeldest son was Nagalingom. The boy came to Colombo and lived withhis father, and was educated here. He was prosecuting his studies tobecome an advocate, but having failed in the preliminary examinationhe joined the father in business.
On October 16, 1906, Sangarapillai donated the property in questionto his son, Nagalingom, by deed, which was duly registered.
Sangarapillai and Nagalingom carried on the cigar business in these.very premises.
Sangarapillai died in 1910, leaving a will, by which he left hisproperties to his wife, and appointed Nagalingom as executor. Hisestate was duly administered.
Nagalingam continued the business after his father’s death, andpractically attended to the family as his father did. He sent the usualmonthly allowance to his mother in Jaffna. When his sisters married,he gave the necessary dowry.
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NagaKngam possessed the property in question and traded there.By bond No. 1,699 dated June 8,1914, attested by Mr. L. B. Fernando,Proctor and Notary, he • mortgaged the premises to a Che tty andraised Rs. 6,000. .
On September 25, 1916, he executed a secondary mortgage of thesepremises and raised a sum of Bs. 3,000.
By bond No. 1,979 dated May 27, 1918, attested by Mr. C. T.Kandyah, Proctor and Notary, he mortgaged the premises to anotherChetty and raised Bs. 13,000, and discharged the prior mortgages.
By bond No. 3,666 dated October 21, 1919, attested by Mr. J. T.Bartlett, Proctor and Notary, he executed a secondary mortgage of thepremises mid raised a sum of Bs. 10,000 from another Chetty.
All the above mortgage bonds wore duly registered.
In case No. 53,378 of this Court, bond No. 1,979 of May 27,1918, wasput in suit by the mortgagee, the present defehdant, a Chetty, anddecree was entered in his favour against NagaKngam.
In execution of the decree the property was duly advertised andwas put up for sale with the sanction of Court by public auction, andat the sale the defendant became the purchaser, and obtained a transferdated August 27, 1920. Defendant was put into possession of thepremises.
On September 20, 1920, plaintiff, on the advice of her son-in-law,a proctor, files this action, disputing the right of the defendant to thehalf share of the premises, on the ground that as the property wasbought by her husband, Sangarapillai, during the subsistence of themarriage, half of it became by operation of the TesctwaZamai law herown at the time of the acquisition, and that Sangarapillai had no rightto dispose of the whole of the property without her knowledge, andthat NagaKngam became entitled only to half the property; and that,therefore, the defendant's right to a half of the property is invaKd.
Several very important questions affecting persons governed by theTesawatotnai law have been raised, and I consider that a survey ofthe law is necessary for a proper appreciation of the points raised..
Tesatoalamaif as its name denotes, is a description of the country,custom. Tesa (country) and toalamai (custom). In 1704 the DutchGovernor of Ceylon, Governor Simons, directed the Disawa of Jaffna,Claas Isaaksz, to inquire into the customs of the Tamil inhabitants ofJaffna as then existed and to compile them. In consequence, afterinquiry, Isaaksz submitted a description of the customs, in the Dutchlanguage, to the Commander van der Duyn in 1707. The Commanderhad the wne translated into the Tamil language, and deKvered thetranslation to twelve “ sensible ” modetiars to peruse and revise thesame. The “ sensible ” modellers reported that they perfectly agreedwith the usual customs prevailing at this place, and fully confirmed the 'same. Isaaksz insisted on the modeliars giving their assent to hiscomposition by signing it, as he said: “Because I know that themodeliars are deceitful and variable; and therefore when they havesubscribed their names to. the composition of their laws and customs,they will have no opportunity whatever to retract their ament givento the same.""
The twelve modeliars accordingly signed the composition, mnlnwigsome observations as to certain customs relating to slaves.
In 1708 the customs were promulgated by the Dutch Governor ofCeylon and were given the force of law, and authenticated copies of
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the same were sent to the OoiiTtw of Justice and the Civil Landraad fortheir guidance.
This composition of the country customs is called the Tesavxdamai,
In 1806, when the Dutch settlements in Ceylon were ceded to theBritish Crown, a Regulation, No. 18 of 1800, was issued declaring thatthis Code of customs, commonly known as the Teaawkmai9 should beconsidered to be in full force, and that all questions between “ theMalabar inhabitants of the Province of Jaffna,” or “ in which a Malabarinhabitant was defendant,” should be decided according to this Codeof customs.
In 1814 the then Chief Justice, Sir Alexander Johnston, cansed theCode to be translated into English, and this translation is the law ofTeaawdkmaA now applicable.
Disawa Isaaksz’s insistence on the sensible modellers putting theirsignatures to his composition of the customs to prevent any retractionappears to have had a tremendous effect, for, in spite of many changesin the customs and many repeals of Statute, fcho Code of Tesawaiamai,like the laws of Medes and. Persians, still remains unchanged, at leaston paper. During the last two hundred years the world has ohadgedfand Jaffna with it. Old customs which prevailed in them cmchntd&^g.had fallen into disuse, and even abrogated. Customs regarding adoption,mortgage of slaves, and the like, though still having legal sanctionon paper, as shown in this Code, have disappeared long ago. It is,indeed; surprising that a whole chapter of this immutable Code devotedto male and female slaves, their different classes, their marriages, thedivisions of their properties, their duties, their sales, &c., still findsits place in the Statute Book, despite the abolition of slavery byOrdinance No. 20 of 1844. It maybe that the slaves were designated aspersons of certain low castes—Covias, Chandos* Pallas, and Nallavas—and that as questions' relating to the customs of those persons maystill be said to exist, and the Regulation No. 18 of 1806 having providedfor such questions, though slavery was abolished, the provisions asto slaves still find their place in the Statute. But whatever reasonmight have prompted the compilers of the Ordinances, there cannotbe much question that a good portion of the Code of TesaxoakMnai, asprinted and kept, is obsolete end ineffective. How much of it isobsolete and how much of it is extant it is not necessary to examine,except as to the point relating to this case.
The Tesawalamai Code was compiled at an age when the people ofJaffna, who wore more or less agriculturists, were residing, both in factand in law, in Jaffna and wore “inhabitants ” of Jaffna. Timeschanged, means of communication with other parts of the world becamepossible, and these “ inhabitants ” went to several parts of Ceylon andalso to distant countries, but still maintained their relationships withtheir home, and constructively continued to be “ inhabitant* ” ofJaffna and governed by the Code of Tescmcdamai.
Though the customs mentioned in the Code related to the usages andhabits of people actually resident in Jaffna, some of the expressionsused in the Code may be applicable, and have been made applicable,both by Statute as well as by judicial decisions, to a wider extent.
For instance, the term th&liathetam originally was intended to conveythe meaning profits acquired. A husband brought his inherited ormudttsom property, and a wife brought her dowry property. fcTheyboth cultivated the lauds and fields. Any profits they gained "be camecommon, and was known as ihediathetam. In olden times, and evenat the present day in many places, both husband and wife, and often
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the children too* joined in cultivating the fields and gardens and earnedtheir living. It is possible that neither TVnm.lrftg nor the sensiblemodelings of old had in their minds any thought of the Jaffna inhabitantmaking money outside Jaffna by his own exertions, unaided by hiswife* and getting profits and acquiring property. Bat the termihedicrihetam is wide enough to embrace this mode of acquisition* andthe objection of Mr. Tisseverasinghe* for the defendant* that in thiscase the property bought by Sangarapillai in his own name cannot besaid to come within the meaning of the term (hedia&Ttetam under theTebavxtfamai cannot# therefore, be sustained. In my opinion* allproperty acquired by either of the spouses during marriage must beheld to be thecUathetam or acquired property.
The next question raised was whether Teaqwdlamai applied tothis case* inasmuch as the defendant is not governed by the Tesawakmai.In support it was submitted that the Regulation No. 18 of 1806 laiddown that all questions between Malabar inhabitants of the Provinceof Jaffna* or where a Malabar inhabitant was a defendant* should be de-rided according to the Tesawalamai Code. It is true that the immediateparties here are not both governed by the Tesawalanuxii but only theplaintiff. But the defendant cannot have any more rights than thoseof his predecessor in title* Nagalingam. If Nagalingam was entitledunder the deed of gift only to a half, defendant will be entitled to thathalf only. The provision of the law in stating what the law applicablein a certain case is does not enact that the law is applicable only tothat case and to no other. The point to be considered is the right ofNagalingam* who admittedly is governed by the Teaawalamat Code,
The main question is as to the right of Sangarapillai to donate thewhole of the property to his son Nagalingam. This is a very importantquestion* and although I do not find much difficulty in deriding thisquestion* I have before me a judgment of the Supreme Court decidedin 1872* which creates some difficulty.
The position of a husband under the TeeaMafatnai was more or lessanalogous to that of the husband under the Roman-Dutch law. Itwas truly said that under the Roman-Dutch law the husband and wifewere one* and that one the husband. His marital power extendedover all the property, both movable and immovable* brought intocommunity. He had full power to dispose of the property. Thediarihetam or acquired property under the TeaatodUmcri corresponds tothe community property under tjhe Roman-Dutch law. Such propertywas liable to the husband’s debts. He had the absolute right to sell ormortgage the same. If the property was left undisposed and he died*then there is provision* both under the Roman-Dutch law and theTesawdLemm* as to devolution of title by inheritance. But during the. lifetime of both the spouses the power of the husband to deal withfch8 property is not limited.
Tesawalamai makes no difference between movable and immovableproperty. Whatever powers the husband had over movables extendedto immovables. If he earned money* it was his. He could spend itas he liked.. If he invested the money in immovable property, hispowers or his rights over the property were not diminished or takenaway* and he dealt with it as he liked. All this he could do by reasonof his marital status. When he or his wife died, the community in.the thediatheSam is dissolved* and a half of what remains at the deathof either spouse is considered the absolute property of the survivingspouse* sod the other half passes by right of inheritance to the heirsof the deceased spouse. If, however* there is nothing remaining at
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1022. the death of either spouse, there is naturally nothing for the survivingspouse or for the heirs of the deceased spouse.
Unlike the Roman-Dutoh law, the mudusom property of the husbandthnnCMfy ^ the dowry property of the wife did not form part of any community,but remained their separate property. The husband’s power overthese properties appear to be restricted under the Tesawalamax. Hehad the power to sell the dowry property of the wife with her consent,not necessarily written consent. If he sold without such consent,* thewife was only entitled to claim compensation from him (MiUhuJdstna96), but the sale was not bad.
As regards thedkUhetam, the husband’s right to sell or mortgage isnot disputed. Mr; Balasingham, for plaintiff, however, disputes theright of the husband to donate the whole of the thediathetam, andrelies on the case of Parasathy Ammal v. SetwpuUe,1 He cannot pointto any passage in the Tesa/walamai Code itself which limits the powerof the husband. He submitted that this Court was bound to followthe judgment of the Supreme Court, and could not alter the law as laiddown there. This case finds its place in the reports nearly thirty yearsafter judgment was delivered, probably, on account of the importance ofthe question as to the validity or otherwise of a contract ex turpi causa.As the report is not quite clear on the point raised in this.case, I sentfor the record in that case. The reporter has made some mistake inthe statement of the ewe in the reports* The District Judge held thedeed was illegal and not valid.
In that case the plaintiff alleged that her husband during the marriagelived in concubinage with another woman, and donated the whole ofthe acquired property to her, and brought the action against her to havethe deed set aside on the ground that the deed was invalid. The mainground on which the District Judge decided the case was that thedonation deed was invalid, as it was a contract ex turpi causa, and,therefore, invalid and illegal. The question of the right of the husbandto deal with the whole of the property was also incidentally raised. Inhis judgment he stated, without giving any reasons, that “by theTesawalamai, the property being acquired after marriage, the plaintiff'slate husband, if he could donate for the purpose recited in the bond,viz., concubinage, he had control only over half the lands.” I notefrom the record that Mr. Advocate Wyman (father of Mr. Balasingham),the greatest authority on Tesawalamai, on behalf of defendant, sub-mitted to the Court that the lands donated-were lands purchased by thedonor in his own name only, and hence he could donate the same, and• that there was nothing in the Tesawalamai to the contrary. Thedeed being set aside in toto, the question of.the donor's right under theTesawakmai does not appear to have been gone into fully by the Judge.Defendant appealed, and was represented by counsel. The respondentwas not represented. The decision of the lower Court was reversed onthe question of the consideration for the deed. The Supreme Court,however, did not give full relief to the defendant, but reiterated thedictum of the District Judge as to the donor’s right under the Tesa-walamai ; in fact, the Supreme Court went further, and had down thedictum that "by the Tamil customary law (referring, I take it, to theTesa/walamai) the donor could only dispose of half this property.”How this wide dictum came to be made is not clear, but it is not disputedthat this dictum is not applicable so far as dispositions by mortgages orsales are concerned* The defendant probably was satisfied when hegot the half*
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I an^bound to follow the judgment of the Supreme Court, whatevermy views may be, if the decision applied to this case. I find that lamfree to adjudicate on the question raised, as the facts of this case axemateri&Uy different.
In that oase the donation was in favour of third parties* Section 4of the Teaawakmai deals with donations, and places certain restrictionson the power of a husband to gift away property. For instance, hecannot gift away more than one-tenth of his hereditary property,which is entirely his own, without the consent of his wife and children.This implies donations outside the family. Following the spirit of therestriction, it can, with justice, be said that the restriction may be extend*ed to acquired property* The judgment of the Supreme Court shouldbe taken only to effect donations outside the family, and which wereexecuted without the consent of the wife and children. I am not sureif even this section is not obsolete at the present day.
In this oase it was a donation to a member of the family. Thereis nothing in the Tesawalamai to prevent a donation to the wife orchildren. Nor can any such restriction be inferred from any provisionin that Code. The husband’s rights to dispose of property are not takenaway, except as stated in section 4*
It may be noted that the donation in this case was to his son, whowas doing business with him, and who later supported the mother andsisters and gave dowry to the sisters when they married. Thedonation was not in any way prejudicial to the rights of the wife andchildren.
In the next place, it is conceded that the husband under theTesawalamai can donate the property with the knowledge of the wife,and plaintiff alleged in the plaint that the donation was without herknowledge. A definite issue was framed on this point* Under theTesawalamai no consent is required in writing. Her verbal consent, oreven acquiescence, should be held to be sufficient. She need not in lawjoin the conveyance or transfer. As such, where the husband and wifejareKvingpeaceably, or, in the language of the Tesawalamai, when they arenot living separately on account of scone difference, it is reasonable toconclude that such consent was given, or that the wife had knowledgeof the transaction. She says she did not know. I do not believe herevidence. I find that the property was not gifted to Nagalingamwithout her knowledge. She says she came to know about the donationonly a year or two ago* She is put up to bring the action after theproperty was sold in execution against her son Nagalingam. She saysshe knew her husband acquired the property at the time he acquired it.The donation was made four years before her husband died. Herhusband died nearly ten years ago, mid she was made his sole legatee byhis will. She did not claim the half under the will. It is not reasonableto think that she did not know anything about the property till recently.In my opinion she knew all about it, and now she is put up by her son-in-law, who happens to be a lawyer, and it may be that Nagalingamhimself is also responsible for the action. If the mere statement of thewife, several years after the death of the husband, that she did notknow of the disposal of the property by her husband should be actedupon, it will throw open the door to frauds and perjuries, and willunsettle well-established title to land.
There is still another point in which this case diffem from the casein 3 N. I* There the action was to have the deed of donationset aside, and was between immediate parties* If, in this matter,
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plaintiff brought the action against Nagalingam, there may be somereason to plead the judgment in the 3 N. L. JR. ease as the law on thepoint. If the action was against Nagalingam to set aside the deed, onthe ground that the donor had no right to dispose of more than half theacquired property, Nagalingam might have replied that the propertyin question was not the only acquired property, that there were severalothers, and that stock must be taken to find out if the other propertiesdid not exceed the half share of ail the acquired property. Half of theacquired property does not mean necessarily half share of each andevery property. He might also have justly pleaded that, inasmuch asthe widow had elected to take all the property of the deceased under thewill, she could not now be allowed to claim this property apart from thewifi. As between immediate parties, the law and equities may be easilyapplicable*
Where the rights of third parties are concerned, both in law and inequity, such rights should not be prejudicially affected, unless someexpress provision of the law is contravened.
It is not necessary to decide the questions of prescription or :ofestoppel in view of my finding that Bangaxapillai had the right to giftthe whole of the property to his son Nagalingam.
I should like to add that several practiced difficulties would arise if aparticular system of law, comprising as it does only a collection ofcustoms of a particular place at some remote time, and which collectionis not a complete one and does not provide for all cases, should beconstrued or applied to include other matters not provided for. No onewill question that the Tesawdlamai Code is not a complete collection.of the oustoms of the country at the time of the compilation* Nor canany one seriously contend that the oustoms1 which prevailed for theconditions of life two h tzndred years ago could be extended to apply to con~ditions unknown then. As regards the system of inheritance of propertyleft by either spouse, there is reason to find out the principle in whichproperty devolved on the heirs, but in cases where acts are done inter vivosand affect properties outside the place where the custom prevailed, andwhere third parties’ rights are affected by such acts inter vivos, the rightsof a person to deal with his own property should follow the law generallyaffecting such acts.
Ordinance No. 7 of 1840 provides how property-^ confine myself toimmovable properly—is transferred from one person to another, andrights passed. The owner of a property in whom the right to it isvested executes a deed attested by a notary and two witnesses, and hisrights are transferred by that deed. The transferee passes on his rightsto another, and he to another, and so on. To ensure that any intendingpurchaser may exactly know the state of the title to a property, the lawhas laid down certain provisions in the Registration Ordinance, wherebynotice is given to the public in the registers of the district as to thedispositions of the property made from time to time by the owners.The notary who examines the title for an intending purchaser will beable, to say if the title is good or not on an examination of the registers.In this case the several notaries who attested the several deeds wererightly satisfied with the title of the persons appearing in the register.The defendant is an innocent purchaser. If, as was contended, thoughthe title was in Sangarapillai, and presumably he had, primdfade, theright to dispose of the property, he did not have the legal right to partwith the whole of it under a particular system of law, no person cansafely purchase property in this Island.. The intending purchaser
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must needs find out if the vendor or any of his predecessors were Tamils,If they were governed by the Tesawalamai, if they or their prede-cessors in title'were married or not, if the properties were acquired bythem before or after marriage, if married, had the wives of the differentpersons knowledge of the transfers, and so on. Counsel suggested thatit would not be difficult to find out a man’s nationality from his name.Not only the vendor’s nationality, but the nationality of all his prede-cessors must be found.* Name does not count. Names of severalpersons do not betray their nationality. Not a few in Ceylon, and manyin Jaffna in times gone by, especially when they became Christians,adopted Hebrew, Portuguese, Dutch, English, and even Americannames, and their descendants, at least a large number, have consideredit proper to retain the' names of their ancestors. Several Tamils ofJaffna, have such names still, and, therefore, name is no test to find outif a man is governed by the Tesawalamai or not. On the other hand,there are several Tamils in Ceylon owning properties who are notgoverned by the TescnvcdamaL Nor, again, will it be possible orpracticable to concern oneself with the domestic affairs of other persons,possibly strangers or persons dead years ago. It is unthinkable thatany law should be found which should necessitate inquiries of the kindabove stated.
The Tesawdatnai Code does not platie any restriction on the powerof a person to dispose of his own property during the lifetime of hiswife, nor is there any provision in the Code that in disposing of hisproperty he must let his wife know what he is doing or what he has doneto make such disposition valid.
I dismiss plaintiff’s action, with costs.
A. St. V. Jayawardene, £.0. (with him Andamndan and J. Joseph),for plaintiff, appellant.—In Parasathy Ammal v. SetmpuRe1 theFull Court recognized the. long-accepted principle of Tesauxdamai,that the husband can only dispose of half the acquired property, andthis has never since been questioned. – Recently Schneider A-J.followed it in Sampasivam v. Manikkam.* According to theTesawcdaniai, the iheduUhetam or acquired property vests in both thespouses at the moment of acquisition. Section 22 of OrdinanceNo. 1 of 1911 merely declares theold law. The husband is no doubtthe manager of the dowry of the wife as well as the wife’s half shareof the thedicUketam. Just as he cannot alienate any portion of herdowry property, so he cannot alienate the wife’s half share of theihediaihetam. A sale or mortgage of the wife’s half of the tkedia-thetam is permitted on the ground that the proceeds thereof ispresumed to benefit the marriage community. The same cannotbe said of a donation. Even under the Roman-Dutch law thehusband, who has unlimited powers of disposition of the commonproperty, can be restrained from alienating the same if he actsfraudulently. Ahusband under the Tesawdltmai has less extensiverights than a husband under the Roman-Dutch law (section 4*sub-sections (1) and (2)). The learned District Judge himself does
»(1872) 3N. L. B. 27i.* & C. Min., July 22,1821 reported in this
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1022. not question the soundness of the decision in Parosathy Animal e.SedaSichy ^etuPu^e (oupra). Th© question of the defendant being a bona fidev. Vimvana- purchaser for value was never raised in the lower Court, and oughtthan Ghetty not to form the basis of any decision.
Bawa, K.C. (with him Tisseverasinghe), for defendant, respond-ent.—Under the Tesawahmai the husband has an unlimited rightto dispose of the acquired property. He could mortgage it at hisdiscretion {Muthukistna 124), sell it to satisfy the debts he hadinourred (Katharuvcdoe v. MenatchipiUe,1 KaUresu 15, Muthu-kistna 124), or dowry the same to his daughters aB he likes (Thaniba-piUai v. Sinnatamby1 2 and Nagaratam v. Alagaratam 3). There isno authority to show that his power to donate is takenarway fromhim. Sangarapillai had donated this property to his only son, whowould even otherwise be ultimately entitled to it. The nature ofthe community created by marriage, is nowhere defined in Tesa-walamai. As causus omissus in Tesawalamai is supplied by theRoman-Dutch law {Puthalamby v. MailvalcanamTeyvar v.SeevagamipiUai,5 Muthukistna 325), the community createdmust be taken to be the same as in Roman-Dutch law. If thehusband donates the property in fraud of the community, only tworemedies are open to the wife. First, to sue the donee to have thedeed of donation set aside; and, secondly, to sue the husband orhis representative to make good the loss. It was the former ofthese remedies that was sought for in Parosathy Ammal v. Setupulle{supra). This action is available, only against the donee or atransferee with notice of the fraud, but not against an innocentthird party, who had got the property for valuable consideration.If such an action had been brought against, the son, he might havehad a good defence. The deed of donation is good as long as it isnot set aside by a competent Court, and it cannot be attackedincidentally in this action. The second remedy, to .make good theloss, is still open to her, but it is doubtful whether she could succeed,as all his other properties were bequeathed to her by his last will.If Roman-Dutch law does not apply, Trusts Ordinance, No. 9 of1917, sections 65, 66, and 118, would apply. Under these sectionsproperty in the hands of a third party without notice cannot bereached.
The acquired property may be regarded as partnership propertywhen it remains in the name of the person in whose name it isbought (Madar Saibo v. Sirajudeen 6).
Story on Equity lays down the principle governing partnershipproperty (section 1207).
1 (1892) 2 c. L. R. 132.4 (1897) 3 N. L. R. 42.
8 (1913) 18 N. L. n. 34S.4 (190$) 1 Bed. 201.
3 (1911) 14 N. h. R. 60.4 (1913) 17 N. L. R. 97
( 107 )
Jayawardene, in reply.—When Tesatvalamai is silent, what shouldbe applied is the Hindu law and not the Roman-Dutch law. Dona-tion is not allowed in Hindu law (Cornish on Hindu Law 116),Cited also 1 Mad. H. C. Rep, 122, 2 Mad. H, C. Rep. 162, 3 Mad,H. C. Rep. 50,13 I. L. R. Mad. 490.
Oiw. adv. vuU.
January 16,1922. Bertram C.J.—
This appeal raises an important question under the Tesawcdamai.It relates to a valuable property in Colombo situated at No. 80,Ban&shall street. This property was bought in 1894 by oneSangarapillai, a trader who had lived for many years in Colombo,but whose home was in Jaffna, and who was admitted to be subjectto the Tesawcdamai, In 1906 Sangarapillai donated the whole of thisproperty to his son Nagalingam. His widow, the present plaintiff,avers that, while she was aware of the purchase,- she knew nothing‘ of the gift. On September 27, 1910, Sangarapillai died, leaving awill, by which he bequeathed all his properties to his widow, andappointing his son, Nagalingam, executor of his will. Nagalingamexecuted a series of mortgages of the property, and in 1918 it wassold in execution at the suit of one of the mortgagees, the defendant,and purchased by him at the sale. The action is now brought tovindicate half of this property on the ground that it was part ofthe thediathetam, and that, therefore, it was not competent to'Sangarapillai, without the knowledge of his wife, to dispose of itby way of gift to Nagalingam to the extent of more than one-half.
The learned Distriot Judge, the late Mr. Wadsworth, in a verycarefully reasoned judgment, has disallowed the plaintiff’s claim,and dismissed her action on several grounds. Accepting on theauthority of the Full Court decision in ParasathyAmmtdv, SeiupuUe1the proposition that the husband cannot dispose of by way of giftmore than one-half of the thediathetam, he holds that this only appliesto donations outside the family; he further holds (on no verydefinite material) that the gift took place with the knowledge ofthe plaintiff, and disbelieves her assertion to the contrary. Hefurther expresses the view1 that the prohibition against donatingmore than one-half of the thediathetam applies to the thediathetamas a whole, and not to each individual property comprised in it.He points out the extreme inconvenience that would be causedif the title of a purchaser outside the Northern Province was liableto be invalidated by the allegation that under a local customary law,of an incomplete and uncertain character, one of his predecessorsin title was precluded from disposing of the interest which hepurported to convey.
The institution of a community of goods in marriage, unknownto the Roman law, was independently developed among races sodistant and diverse as the Dravidian inhabitants of the Malabar
M im)ZN.L.B.27h
1922.
Seelaehehy9. Viauvanathan OheUy
1922.
Bbbocbam
c.j.
Stdaehehyv, VUuvana-than CJheUy
( 108 )
Coast and the Germanio tribes, from whom, in all probability, theRoman-Butch law derived it. (See Voet 23, 2, 66 ; Planiol, DroitCivil, III., a. 891.) I can find nothing to correspond to itin the law of the Hindu Joint Family, which was suggested as thesource of the Tesatodlamai in the course of the argument, nor doesthe passage oited from Cornish's Joint Hindu Family, by Mr.
St. V. Jayawardene, seem to me to have any bearing on thesubject. I am disposed to believe that in the Tesawdlamai it wasan independent development. The extent to which this partnershipwent has varied very greatly in the different systems of customarylaw whioh have recognized it. It reached its fullest developmentin the great commercial cities of Flanders and the Netherlands,where the community was universal, no doubt by reason'of itsconvenience for commercial purposes. (Planiol, III., a. 896.)The Tesawala/mai restricts it to acquisitions during marriage—apeculiarity which the Tesawalamai shares with the law of the ancientVisigoths (Ibid., 8. 1684) and with that of the Frisians at thetime of Voet (23, 2,85).
In its original conception, both in the Tesamilamai and elsewhere,such a form of community was apparently confined to the fruits of *the common exertions of the spouses (ef. “ de omni re quam simulcoUaboraverint ”—Loi Ripuaire oited Planiol, III., a. 891 (II.)),but it seems to be admitted that in the, modem Tesawalamai itmust be taken asextendingto all acquisitions made by the husbandin the course of his business. It is an essential feature of thecommunity in almost all its forms that the husband should be themanager of the common property; There is no question that thisis so in the Tesawalamai. He can freely sell (KatharuvcJoe v.MenatchipUleJ) and mortgage (Muthukislna 124) the commonproperty without the consent of his wife. But it is said that inthe Tetawalamai, so far as an alienation by donation is concerned,there is a limitation of the powers of the husband, and that he isrestricted from disposing of the common property by donation tothe extent of more than one-half.
The questions which we have to consider are these ;—
Does such a limitation exist ?
If it exists, what is its nature ? and, in particular,
What is the extent of its local application, that is, does it
apply to property outside the Northern Province ?
With regard to the first of these questions, I can have no doubtthat such a limitation does exist. It is certainly singular thatneither in the Tesawalamai as codified in 1706, nor in its re-codifica-tion in 1921, nor in its formulation as given in the appendixto Muihuhi8tna,8 Tesawalamai, nor in any of the numerouscases collected in that volume, is there any mention of any such 1
1 (1892) 2 O. L. B. 132.
( 109 )
♦
limitation. Hus is all the more singular, as in both the Code of1706 and in the appendix to Muthukistna the general question oidonations of property and the limitation of the power of the spousesto make donations is dealt with in some particularity. On the otherhand, there is the weighty, and, indeed, binding, authority of theFull Court decision in Parasathy Ammal v. SetupuBe (supra), inwhich it is said “ by the Tamil customary law the donor could onlydispose of half this property.” It is significant also that in thatcase the District Judge in the Court below, who had the best possiblemeans of acquainting himself with the local customs, seems to havetreated the proposition as not open to question. That decision hasbeen recently followed by Schneider A.J. in Sampasivam v. Manik-tarn.1 He there observed that the proposition was not challengedin the Court below in that case, and that he could find no case wherethe law as stated mlParasathy Ammal v. SetupuBe (supra) had beendisputed, though the decision had (stood for more than fifty years.Z think, therefore, that decision must be accepted as correctlystating the law.
The explanation of this distinction between donations and otherforms of alienation must remain uncertain. Possibly that suggestedby Mr. Arulanandan may be the true one, namely, that the proceedsof sales or mortgages are presumed to be expended in the interestsof the community, whereas a donation means a permanent reductionin its assets without any corresponding compensation,. Moreover,from a comparative observation of other systems of law, it wouldappear to be quite in accordance with the spirit of the principleof “ community of goods ” that donations should be treated on aspecial footing. Thus, in Roman-Dutch law, if the husband makesdonations of such a character and of such an amount that anintention to defraud the wife may be presumed, these donationsare liable to be impugned ( Voet 23, 2, 64). See as an illustration ofthis principle the interesting case of Weerasooriya v. Weerasooriya,2Similarly, in French law, which in this matter derives its principlesfrom the same source as the Roman-Dutoh, the Code Civil dealsspecially with donations. Donations of immovables are forbidden.(Art. 1422.) Donations -of movables are allowed subject tocertain restrictions. The jurisprudence of the Courts has, moreover,established the old Commonlawprinciplethatallexcessivedon&tionsare liable to be annulled as fraudulent. (Planiol, Droit Civil, III.,s. 1024.) An old French commentator on the French customarylaw has expressed the objection to the husband’s freedom ofdonation with some force: “ Qu* on lui permette d*administrer enpJeineliberU, soil; maisdedonner ! Danner, c*estperdre” (FerrUre—see Ibid., s. 1019.)
Accepting, therefore, the proposition that this limitation on thehusband’s powers of donation exists, the question we next have to
15. O. Min.t July 22,1921, reported in this volume. 2 {1910) 13 N. L. B. 376.
1982*
Bkbtkaw
ax
Seelockchyv. Visttcano-than Ghetiy
( 110 )
1922. ask ourselves iB: What is its nature ? In the course of the argument3bbtram ^ Was <^so'asse<l whether, under the community of acquisitions, the
J.wife had a vested right to a share in each property as it was acquired,
jSeelachchy ora s^iaTe ^ *ke totality of the acquisitions on the dissolution
v. Ftaittma- of the marriage. I can have little doubt that the former alternative*fto» Oketiy is the true one. The idea of a community in all systems seemsto me to import an ipso facto co-proprietorship in all propertieswhich fall into the community. As Voet puts it in Roman-Dutchlaw (23, 2, 68), omnia ipso jure sine traditio corporalium, et cessioneincorporalivm communicantur turn prxsentia turn futura, I thinkthe same principle must be applied to the form of communityrecognized by Tesatoqlcmai, more especially as it has been laid downthat on all matters on which the Tesawalamai is silent, recourse 'may be had to the Roman-Dutch law. (See Puthathomby v.Mailvakanam.*) .
But this is not really the question. The question is not as to thewife’s proprietary interest, but as to' the extent of the husband’spower of management. It is a feature of all systems of communitythat the husband is the absolute manager of the commu|rity. Soextensive indeed are his rights, that it has been suggested that theyhave practically the effect of reducing the wife’s right from that ofco-proprietorship to a mere interest in expectancy. (See Dumoulincited Planiol, III., s. 898.) “ Proprie non est soda sed speraturfore.31 In view of these extensive powers, the question ariseswhether, if the husband ignores the limitation of his powers ofdonation and purports to make a gift of the whole of one of theacquired properties, his action is ipso facto null so far as relatesto the wife’s share, or whether, on the contrary, it does not merelyentitle the wife to some form of compensation. The question iswhether this restriction does not so much make him incompetentto donate the whole, but rather simply imposes upon him a limita-tion which he ought to observe. The principle quod fieri non debuit,factum valet is elsewhere recognized in this connection. Thus, inRoman-Dutch law, according to the custom of Holland, even if itwas provided in the dotal pact that the woman should retain herdowry intact, the husband did not lose his power of alienating it,and if he alienated it, his wife had no right of vindiccstio .of'thealienated property, unless in the ante-nuptial settlement the powerof alienation was expressly taken away from the husband, (Voet23,5, 7.)
The question arises, therefore, whether the act of the husbandin the case contemplated is ipso facto void, entitling the wife to animmediate ret vindicatio action, or whether on the contrary she orher heirs must not wait till the dissolution of the marriage by deathor otherwise for some form of compensation. In favour of the latterview is a passage in paragraph IV., section 5, of the Tesawalamai,
1 (1897) 3 N. L R. 42,
( 111 )
i
where it is expressly said that if a husband without tEe knowledge 1928,of his wife shall have given a part of the thediathetam to his heirs,—*
the matter is ultimately to be adjusted on the death of husband and ^$c^AMwife between their respective heirs. Nothing is said about the—r-
donation being ipso facto void. Indeed, the contrary is implied. fSuww-Further, in more than one place in the Tesawatamai, andin the cases tton Ckettycollected by Muthukistna, there are passages which seem to implythat unauthorized alienations by the husband, whether of dowry orhereditary property or of acquired property, are not ipso facto void,but are matters to be dealt with by way of compensation. (See para-graph IV., sections 3 and 4; paragraph I., section 10; MtUhukistna98, 117, 124, 126, 126,.and 176.) Further, it should be notedthat in Roman-Dutch law, in the case of a donation by the husbandin fraud ofthe community, it is only on the dissolution of the marriagethat the wife (or her heirs) can assert h*v remedy, and that it is onlyin the event of no funds being available to compensate her thatshe has an actio quasi-Pauliana (or, as Wesel suggests, a directrei vindicatio action) to set aside the gift. (See Voet 23, 2, 54, andWeerasooriya v, Weerasooriya (supra).) Similarly, in French lawthe remedy for an unauthorized donation does not arise till apartition takes place at the dissolution of the community. (SeePlaniol, III., 3.1029.)
On the other side is the case of Parasaihy Ammal v- SetupuUe(supra), which was a rei vindicatio action, and was taken against thedonee without any reference to an account with the heirs. It is tobe observed, however, that the point was not taken in that case, and,moreover, the action was brought after the death of the husband,and it does not appear whether there were any other propertiesfrom which the aggrieved wife could have derived compensation.
I am inclined to believe that the balance of authority is in favourof the proposition that the wife’s remedy arises only on the dissolu-tion of the marriage by way of compensation, and that at any rate,in the absence of any express provision of the Tesawatamai, theprinciples ofthe Roman-Dutch law might well he adopted by analogy.
The question, however, has not been very fully examined, and itappears to me that it might well be left to be further elucidated insome subsequent case by evidence of local custom such as appearsto have been frequently tendered in old Tesawatamai cases. It isnot necessary to decide the case upon this ground, for, as I willproceed to show, even if the alienation by the husband within*thelocal realm of the Tesawatamai would have been ipso facto void, andeven though within those limits a rei vindicatio action from thebeginning would have lain for the recovery of the property, no suchaction lies in the present case on grounds quite independently ofthe question just discussed.
This brings us to the third of the questions above discussed,namely, the local extent of the application of the Tesawatamai*
( U2 )
1022. . To what extent and in wbrsTanoor does the Teeawalamai apply‘nr7Tr^_ °utaide the Northern From^ t Ikb is ah important question,OX which has been previously discussed both in the Courts and outsidethem. I observe that in* the evidence and documents published* Viwvana- “i connection with the Tesawdlamai Commission, it was assumed***** Otevy by more than one prominent witness that the Tesavxdamai did notapply to property “ outside Jaffna,” and that the late Mr. "WilliamWadsworth in an interesting memorandum expressed the opinionthat “ Looked at from every point of view there oannot be anydoubt that the Tesawatamai Code is both & personal and a local lawapplicable to the Tamils of the Er^n^nce of Jaffna and to propertyin Jaffna.” When we are dealing with customary law, such extra-judicial utterances by s person well acquainted with looal customsare entitled to consideration.
Tl.vc question has also-been discussed in two cases in this Court,namely, Vefotpittai v. Sivaka/nijpiUai1 and Spencer t>. Rajaratncm?The arguments in these two cases covered a wide range, and observa-tions were made in the judgments which seemed to have a bearingon this question, but if the facts be carefully examined, it will befound that those observations are wholly obiterand that the actualdecisions in both cases have no bearing on the present question.In the first of these cases, it was held on the factsthat the deceasedperson, whose status was in question, was subject tothe Tesamilamai.No decision was given to the applicability of the Tesawdlamai tohis lands in Batticaloa. In the second it was held on the facts thatthe deceased person, whose status was in question, was not subjectto the Tesatoalamait and consequently there was no ocoasion togive any decision as to the applicability of the Tesawdlamai to hisproperties in Colombo.
• The danger of acting upon principles enunciated in obiter dictais illustrated by the fact that in the former case the observationsof both Judges proceeded upon the assumption that there couldexist in Ceylon more than one matrimonial domicil, and theyaccordingly seem to suggest that consequently the provisions ofsection 6 of Ordinance No. 21 of 1844 had a decisive bearing on thesubject now under discussion. In the second case, however, thisassumption was expressly repudiated by both Judges (includingWood Renton C.J., who took part in both cases), and the contraryprinciple enunciated in Wijesingke v. Wijesinghe8 was accepted,namely, that only one matrimonial domicil can be acquired inCeylon.
It may be well at this point to discuss and dispose of section 6of Ordinance No. 21 of 1844. That Ordinance was passed at atime when British colonists were settling and acquiring propertyin various parts of the Colony, and finding themselves faced with
1 (2910) 13 N.L. R. 74.a16 A R. 391.
• (1891) 9 S. C. O. 19$.
( 113 )
diverse systems of law, which if applied to themselves would affectthe mutual proprietary rights of husband and wife in regard to theproperties so acquired. Presumably, therefore, with a view todefining their position with regard to these systems of law, section 6enacted a principle, which is in exact accordance with that whichhas since been confirmed by judicial decisions in England, and alsowith the principles of Boman-Dutoh law expounded by Voet.It declares that the mutual proprietary rights of husband and wifewith respect to any immovable property in any part of the Colonyacquired during the subsistence of the marriage shall, in the absenceof any marriage settlement, be determined: in accordance with thelaw of the matrimonial domicil of the parties, or, if a marriagesettlement exists, in accordance with the terms of that marriagesettlement. In other words, it declared that in the absenoe of amarriage settlement the mutual rights of husband, and wife whosematrimonial domicil was England should be determined bythelaw ofEngland, and those of a husband and wife whose matrimonial domicilwas Ceylon by the law of Ceylon. The section never intendedto suggest that there might be several matrimonial domicils inCeylon, and to regulate the rights of parties within one of suohmatrimonial domicils with reference to immovable propertyacquired in another. Such a view would have been inconsistent withthe principle of Wijesinghe v. Wijesinghe (supra), which was appar-ently overlooked by this Court in the first of the cases above referredto, but recalled and re-emphasized in the other. The Tesawdlamaiis part of the law of Ceylon, and its personal or local Umitationswere entirely unaffected by the section. It is clear, therefore, thatsection 6 of Ordinance No. 21 of 1884 has no bearing upon thequestion of the local application of the Tesawalamai.
It has, however, one effect of an incidental character, and thatan important one. There is no exception of the Tesawalamai inthe Ordinance. It applies to persons subject to the Tesawalamai asmuch as to the other inhabitants of the Colony. On the one hand, itauthorizes them freely to dispose of their property by will, notwith-standing any “law, usage, or custom now orat any time heretoforein force within the Colony.” On the other hand, it authorizes thembefore marriage to conclude marriage settlements regulating theirmutual proprietary rights, if they so desired, in a manner inconsis-tent with the Tesawdlamai. This circumstance will be found Jkohave an important bearing on the problem before* us.
Now, Spencer v. Bajaratnam (supra) does lay downone principle—obiter it is true, but supported by weighty arguments—which is ofgreat importance, namely, that the Tesawdlamai is not a personallaw in Ceylon as the Hindu or the Muhammadan law is in BritishIndia, but is an exceptional custom in force in the “ Province ofJaffna,” and applying primarily or mainly to a certain class of itsInhabitants. I think that the considerations urged in the judgments13
1922.
Bbbxbam
O.J.
Seelachchyv* Vieuvaiut'than Chetty
( 114 )
1022.
Bertram
C.J.
Sedachchyv. Vieuvana-than QheUy
amply substantiate that principle, and that it should bo adopted.For certain purposes the Tesawalamai applies to all immovableproperty within the Province. Nothing is expressly said in thejudgments with regard to its effect on immovable property situatedoutside that Province. This, in the present connection,istheproblemthat remains for us to determine. It was suggested in that case inthe argument by Mr. Elliott (p. 324) that the true principle is this:“ The Tesatcalamai may be divided into two heads. One partdeals with personal relations, &c., which Jaffna Tamils carry withthem wherever they go. The other part deals with land tenureand other matters which are purely local.” We are not calledupon to give a decision on the whole of this interesting and broadproposition, which seems intended, among other things, to comprisethe law of succession. We are simply concerned with the mutualproprietary relations of husband and wife subject to the Tesa-uxdamai with respect to immovable property acquired during thecontinuance of the marriage but situated outside its special realm.
The problem then is simply this. In what manner does a specialiooal customary law, to which a husband and wife are subject,affect their mutual proprietary rights with regard to immovable pro -perty acquired during the marriage but situated outside the localitywithin which that customary law is in force ? This happens to bethe precise question which is discussed at great length by Voet inthe ohapter ‘‘ De Ritu Ntvptiarum ” (23,2), and which was obviouslythe subject of much controversy in his day. The historical positionwith reference to which he speaks, namely (if I understandit aright),that of several federated states, all subject to the same Commonlaw, but modified in its application to each by local customs andmunicipal statutes, is no doubt not exactly on the same lines as ourown. But it furnishes a sufficiently close analogy to render hisconclusions a useful guide to us in considering the application ofa local customary law to immovable property outside its localsphere.
Voet’s method of treating the subject is as follows: The conclu-sion to which he had finally come was “that as regards froth immov-ables and movables, wherever situate, the only law to be regardedis the law of the matrimonial domicil, and that consequently undera marriage contracted between Hollanders, with a Holland matri-monial domicil, lands not only in Holland, but also in Frisia orany other place, are common property, wherever the local law doesnot require special solemn formalities before a local authority forthe transmission of title, but is satisfied with the individual intentionof the transferors according to the principles of Homan law; andthat, where the local law does not allow title to be transferredotherwise than by solemn formality, they are at any rate liable tobe declared common property upon the institution of a personalaction for that purpose.” (Voet 23, 2, 85.)
( 115 )
The way he reaches this conclusion is as follows: How is it, heasks, that when a Hollander in Holland contracts a marriage, boththe Frisian and the Holland lands of the spouses become commonproperty, or liable to be so declared ? {“ communia fiant autcommunicanda sint”) He answers that the Holland lands becomecommon by virtue of the law or custom of Holland, which is notin the case supposed affected by any ante-nuptial agreement, and isconsequently tacitly ratified by the spouses, so that the force of thelaw and the tacit consent of the spouses here concur. But as tothe Frisian lands, the Holland law can, of course, have no directapplication to them. Why, then, do they form part of the com-munity ? This tacit ante-nuptial agreement generates in Frisia(where a solemn formality in writing is necessary to pass title tolands) an equitable right to have these lands declared commonproperty (communicandi necessitas) just as in countries, where nosuoh formality is necessary for the passing of title, it would affect anactual vesting of a common title (commimio). The tacit agreementof the spouses consists in this circumstance, that knowing as they do,or must be taken to do, the effects of marriage according to the lawof the matrimonial domicil, they must be taken to have contractedthe marriage on the basis of this law and its conditions as beingjust, fair, good, and laudable, and as being one which if it had dis-pleased them they could have repudiated by an express dotalagreement. The conclusion, therefore, is that “ inasmuch asexpress nuptial settlements, by which it is provided that there shallbe a universal community between the spouses, have the effect,if not of transferring title, at any rate of conferring personal rights(effectum, si mm reed&m, at saltern personalem) as regards all propertieswherever situated, even in those places in which a universal com-munity has not been introduced, provided that the constitutionof such a community by such an agreement is not expressly for-bidden …. there is no reason why we should not attributethe same effect to this tacit agreement of the spouses with regard toall properties wherever situated/5It will be observed that Voet draws a distinction between placeswhere title passes by simple consent and places where a specialformality is required for the purpose. In the former, eygn thoughthe agreement of the spouses, express or tacit, was made in alocality subject to a different system of law, a title in co-proprietor-ship (communio) actually vests; in the others all that passes is aright to have such a title made effective (communicandi necessitas),or, as would be said if we were using terms of Tfriglfeh law, in theone case a legal title, in the other case an equitable one. Voet putsthe matter more fully and precisely in another passage in the samecontext when referring to the analogy of a partnership agreement.He says: “The things which a person has hitherto possessed/jnhis own name, he has henceforth agreed to possess in the name of
1922.
Bertram
OJ.
Seelachchyv. VisuvdriO'than CheUy
( 116 )
1922. •
Bbrtram
O.J.
Seelachchyv, Visuvana-tom Qhetty
another, and bo from that moment everything belonging to thepartners or in our oase to the spouses is deemed to have beendelivered on the basis of a title of partnership, even though infact they have not been delivered.”
Voet is, cf course, speaking of places each subject to its own muni-cipal law, and each capable of constituting a separate matrimonialdomicil, but, if bearing this difference in mind, we apply theseprinciples, as in my opinion we may justly do, to the case of a regionsubject to a special customary law differing from , the ordinarylaw of the country in which it is situated, the result would appear tohe as follows : Any property acquired in thecourse of trade by oneof two spouses subject to the Teaawalamai in a part of the Colonyoutside its special local sphere becomes to$o facto partnership propertyas part of the community. The legal title to that property does not,however, pass to the community, inasmuch as we, like the Frisians,require special formalities for the passing of title, wbsre under ourlaw it does not pass by operation of law. There passes, however,by the taoit agreement of the spouses, manifested by their not havingmade an inconsistent marriage settlement (as under section 6 ofOrdinance No. 21 of 1844 they might have done), an equitable rightto have that property declared part of the community. It mightbe said that this tacit agreement itself is obnoxious to OrdinanceNo. 7 of 1840, and that the law, therefore, cannot give effect to it,But I think that this is too strict a view. I prefer, as Mr. Bawasuggests, to regard the solution as coming within a principledefinitely made part of our legal system by section 96 of the TrustsOrdinance, No. 9 of 1917. “ In any case not coining within thescope of any of the preceding sections where there is no trust, butthe person having possession of the property has not the wholebeneficial interest therein, he must hold the property for the benefitof the persons having such interest, or the residue thereof (as thecase may be) , to the extent necessary to satisfy their just demands.* *In other words, I hold that when the plaintiff's husband purchasedthe property now under consideration, he acquired it, in consequenceof his marriage contract, subject to a constructive trust in favourof bis wife, and that his wife was entitled to sue him for a formalconveyance of her interest, or, as Voet puts it, subject to a necessitascommunicandi.
But the right so acquired by the wife cculd not prejudiceany bona fide purchaser claiming from the donee of her husband,even though the gift to this donee was a breach of this constructivetrust. (See sections 88, 63,66, and 118 of the Trusts
Ordinance.)
Theproperty was, in fact,constructively and equitably partnershipproperty. The view of the English principles of equity, now, ifnot previously, so far as they relate to this subject, formally adoptedinto our legal system by the Trusts Ordinance, i3 admirably expressed
( 117 )
in the passage cited by Mr. Bawfe from Story's Equity Juris-prudence:—
“In cases, therefore, 'where real estate is purchased forpartnership purposes, and on partnership account, it is whollyimmaterial, in the view of a Court of Equity, in whose nameor names the purchase is made and the conveyance is taken;whether in the name of one partner or of all the partners;whether in the name of a stranger alone or of a stranger jointlywith one partner. In all these cases let the legal title be vestedin whom it may, it is in equity deemed partnership properly,not subject to silrriv^rship; and th$ partners axe deemedthe cestuis qui trust thereof .
“ A Court of law may, nay must in general, view it onlyaccording to the state of the legal title. And if the legal titleis vested in one partner, or in a stranger, a bona fide purchaser ofreal estate from him, .having no notice, either express or con-structive, of its being partnership property, will be entitledto hold it free from any claim of the partnership. But if hehas such notice, then in equity he is. clearly bound by thetrust, and he takes it cum onere, exactly like every othe^purchaser of a trust estate ” . .. . Story—Equity
Jurisprudence, s. 1207.
In the year 1900 the House of Lords, apparently oblivious of thefact that the whole question had been worked out by Voet, examinedthe question afresh, came to the same conclusions, and appliedthem to the case of French spouses, married in community ofproperty, settling in England, and there acquiring both movableand immovable property. (See Be Nicole v. Curlier1; Re BeNicole ;2andBicey—Conflict of Law8,pp. 510 seqq. and 837-8.) Thiscase now settles the law with regard to the effect of a marriage incommunity upon the mutual proprietary rights of the spouses withreference to property acquired in another country subject to awholly alien system of law. As I have said, these principles,mukstis mutandis, are capable ci application to the conditions ofthis Colony and to the circamstancee of the present, case. Inthat case no question arose of the rights of any bona fide purchaser.It was recognized that the wife acquired a proprietary interest inthe property purchased by her husband. There vas no occasionthere to inquire whether that interest so acquired was legal orequitable. If the question had arisen, it would no doubt be heldto have been equitable. The distinguishing feature of the presentcase is that the defendant was a bona fide purchaser without notice,and consequently th6 equitable proprietary interest of the plaintiffavails her nothing*
1 {ZOQOj A. a 22.> {2900} 2 Oh HO.
1922.
Bertbam
O.J.
Seflachchy
o. Viauvava-
ihan Qhetty
1922.
TftPffElHfcflUl
OJ.
Sedachchy
v. ViBuvana-than Chetty
( 118 )
Applying these principles to the present ease, I hold that the
9
or of the limitation of her husband’s power to alienate the partner-ship property by way of gift, was not in any way responsible to theplaintiff, and acquired the property free of her equitable claims,and that he is therefore entitled to judgment and to the dismissalof this appeal.
There are two supplemental matters which deserve remark.In holding that, so far as relates to the mutual proprietary rightsof husband and wife, the Tesawalamai, though primarily of localapplication, may affect property outside the sphere of its specialoperation, I desire to say nothing of its possible application inmatters of inheritance. That question must await a case in whichit is specifically raised. I will only say that when that questioncomes up for consideration much light may be derived from a studyof the paragraph in Voet’s chapter “De Ritu Nwpbimum” towhich I have referred above.
I should further like to say that I do not think that it should betoo readily assumed that the questions discussed in this case will,so far as relates to all marriages celebrated since its enactment, besuperseded by the operation of section 22 of Ordinance No. 1 of 1911.Only so much of the Tesawalamai as is inconsistent with that Ordi-nance is thereby repealed. Nothing is said in that Ordinance aboutthe local application of the Tesatoalamai, but it does not follow thatits application is intended to be co-extensive with the Colony.Similarly, nothing is said about the husband’s power of managementof the property comprised in the community, nor of any limitation 'on his power of. donation. It does not follow, however, that theseprinciples have been repealed. It will be a matter for considerationwhether the Ordinance generally, and section 22 in particular,should not be read subject to these principles as well as to manyothers not specifically referred to.
I would dismiss the appeal, with costs.
De Sampayo J.—
I have had the advantage of reading the judgment prepared bymy Lord the Chief Justice ; but as under the special circumstancesin which we are placed this case must be disposed of at least byMonday, I regre^that I am unable to deal .with all the mattei^discussed in that judgment. Nor is it necessary that I shouldso, because on the point involved in the case I have formed^adifferent opinion which is decisive of this appeal. The questionis whether under the Te&aioakmai a husband may not validlyalienate by way of donation any property acquired by him withoutthe concurrence of the wife. I may say at once that I agree withthe finding of the learned District Judge that the plaintiff, widowof Sangarapillai, whose act of donation is called in question, at the
( 11» )
time knew of the donation to their son Nagalingam, and acquiescedtherein. With regard to the law, as the free right of alienationis one of the essential elements of ownership of property, any speciallaw which is alleged to take that right away or materially restrictit must distinctly appear either in some enactment orin authoritativejudicial decisions. In my opinion there is no such support for theproposition maintained on behalf of the plaintiff. It is remarkablethat there is absolutely nothing on the point in the Tesawalamaiitself which is appealed to as the special law governing this matter.The only passage to he found in that collection is section 1, sub-section (1), which describes the different kinds of property broughtinto the marriage by the husband and wife, namely, mudusom orhereditary property brought in by the husband, chidenam or dowryproperty brought in by the wife, and thediathetam or acquisitionsof the husband or wife during the marriage. The sub-section nextdescribes the ultimate destination of the property, and states thaton the death of the spouses the mvdusom is inherited by the sonsor male heirs and the chidenam by the daughters or female heirs,and then it proceeds to state that “ the acquisition of thediathetamshould be divided among the sons and daughters alike.” TheTesawalamai, thus, does not deal with the question of the husband’sright of alienation, but only statesa rule of inheritance, and it seemsto me obvious that the inheritance can only be of the property thatremains at the death of the parent after any alienations madeduring life. As regards this, there is judicial authority, to whichI need not particularly refer, and it is, indeed, conceded by plaintiff’scounsel that the husband can validly alienate by way of sale ormortgage. Why, then, is any line drawn between such alienationsand donations? It was suggested by Mr. Arulanandan on thefirst day of the argument that the reason was that in the case ofsales and mortgages the money was brought back for the benefitof both spouses, whereas in the case of a donation there was no suchequivalent brought into the community. This suggestion is in-genious, but I am afraid it is plausible only. There is no indicationof such a ground cf distinction in the decisions recognizing thevalidity of sales and mortgages, and I do not think the reasoningis sound. So far, then, the Tesatoalamai Code itself does not helpthe plaintiff. As regards judicial authority, the sheet anchor ofthe plaintiff is Parasathy Ammal v. Setwputte.1 But I do not thinkthat this fifty-year old judgment is really an authority on the point.It was a case in which the husband had donated a piece of acquiredland to his concubine, and the judgment of Creasy C. J. dealt learnedlywith the Roman-Dutch law on the subject of donations ex turpicausa. I suspect that the judgment was reported so late as 1900on account of the valuable discussion of that important point.On the question of the right of the husband to dispose of the entirety
1922.
Da SahfayoJ.
Seelachchyv* Visuvana-ihan Chetty
1 (1872) S N. L. R. 271.
( 120 )
1922.
13b Sampato
j.
Qedachchy
v. Viauvana-than Chetty
of the land, all that we have is this single sentence : “ The decree ofthe Court below should be set aside and judgment entered for theplaintiff for half the land in question, inasmuch as by the Tamilcustomary law the donor could only dispose of half this property.”There is no reason given for so interpreting the customary law, noreference made to the Tesawalcmai or to any previous decision,and there is no discussion whatever of the subject. There was noappearance for the respondent, and we are left without any guidanceas to what argument of counsel for the appellant might have prevailedwith the Courts Nor oan I read the pronouncement as & definitedecision that the husband cannot donate, as distinguished fromselling or mortgaging, more than half of any acquired property.We are asked to read the judgment in that sense, because it saysthat the “ donor ” could only dispose of half the property. If so,this is a very cryptic way o£ deciding an important point of law.In my opinion the word “ donor ” in the context is not descriptiveof the act, but Only of the person whose act was in question; it wasas much as to say <c the person who gave the impeached donation.”The important expression in this connection is “ dispose of.” Itis not “ dispose of ” by way of donation, butc< dispose of ” generally.The opinion expressed is as consistent with a holding that a husbandcannot dispose of more than half in any way whatever, whetherby sale, mortgage, or gift, and it may well be that after all the ChiefJustice meant to go as far as that, though it is quite clear that heWas really interested only in the other question to which the wholejudgment was devoted, namely, as to a donation ex turpi coma.Assuming, however, that that case decides what is contendedfor, howfar is it a good authority ? It is said that it is a Full Court decision.We had the Supreme Court Minutes produced before us. It appearsthat the Chief Justice sat with two other Judges on that day. Butit does not at all appear that the Court was specially constituted forthe purpose of deciding that case or any other case. The list for theday was a long one, consisting of a large number of Police Courtappeals and of District Court final and interlocutory appeals. Thecase in question appears in the middle of the District Court cases, andthere is nothing to indicate that, it was specially considered by thethree Judges. It is more likely that the two Puisne Judges, not havingsufficient work to occupy them separately, sat with the Chief Justiceto assist him generally. Moreover, the Minutes do not showthat theyexpressed any opinion. There is only the draft judgment of theChief Justice, and there is nothing to indicate that the other Judgesagreed with it, or even signed or initialled it. I do not think that thejudgment in question has any greater authority than that of a singleJiidge, which, therefore, is open to review1. In my opinion a husbandmay, under the Tesawdta/mait make a donation of the entirety of anyacquired property just asmuebas admittedly he may sellormortgagethe same, and I would djflTnjaa this appeal on that short ground. Even
( 121 )
if he may not, I agree with the contention of Mr. Bawafor the respond-ent that the wife, if she is prejudiced by any donation of acquiredproperty by the husband, cannot seek to obtain asagainsta bona fidepurchaser from the donee a half share of the specific property, butcan only ask for half of the acquired property as a whole, or forcompensation from the husband’s representatives. In this casethe husband by will gave all his remaining property to his wife, theplaintiff, and I think she must be oontent with it.
Gabvust A.J.—
This is an action to vindicate title to a half share of certainpremises situated in Colombo. The plaintiff is the widow of oneSangaxapillai. Admittedly they were both subject to the Tew-wdlamai, and the premises in question were acquired by the husbandduring the subsistence of the marriage. SangarapiUai gifted thepremises by deed to his son Nagalingam, through whom the defend-ant makes title.
It is not disputed that under the Tesawalamai there is communitybetween spouses in all property acquired by either during thesubsistence of the marriage; nor is it disputed that the premisesunder litigation in this case were subject to that community.
Property so acquired, which as such becomes subject to community,is designated thediatheiam. What is the nature of this community ?Does title to property acquired by one of the spouses vest equally inthe other, as in the case of spouses subject to the communio bonorumof the Roman-Dutch law, or does the title remain in the spousewho acquired it, subject to the equitable right of the other spouseto take his share ? Under the latter system a formal conveyanceof immovable property to the wife will immediately, upon the execu-tion of the conveyance, vest the title in both spouses. It was suggest-ed that under the community known to the Tesawaiamai the spousesin relation to property subject to that community stood in exactlythe same position as the members of a commercial partnership.That is to say, that the title to property standing in the name ofone partner remained in that partner alone, though as regards theother members of the partnership his position was that of a trustee.For this proposition no authority was cited. Though I can findno local decision which explicitly declares the community subsistingbetween spouses subject to the Tesawalamai to be in this respectidentical with that known to the Roman-Dutch law, there areindications that that position was never doubted.
It is significant that in Ordinance No. 1 of 1911, “ which representsthe conclusions formed by a Committee specially appointed toinquire into the body of customary law known as the Tesawaiamai,the law is by section 22 declared as follows: * The th&diathetcmof each spouse shall be property common to the two spouses, that
1922.
Db SampayoJ.
Seelaehchyv. Vieuvana-than Chetiy
( 122 )
1922.
Gabvxn
A.J.
Seelachehyv. Vimtvana*than Chatty
is to say, although it is acquired by either spouse and retained inhis or her name, both shall be equally entitled thereto.’ ”
This is an explicit declaration of the law in the sense in which itwas, so far as I am able to judge, always understood.
If this view of the law be correct, these premises at the time ofacquisition by Sanagarapillai vested by operation of law equallyin his wife.
It remains, therefore, to consider whether in such a case as thisthe husband has the right to dispose of any property subject tothe community by gift.
Under the Roman-Dutch law as part of the marital powers com-mitted to the husband was the right to control and dispose ofproperty belonging to the community. It has been held by thisCourt that the husband may under the Tezawalamai dispose ofcommon property by way of sale. If he has not the power to do soby way of gift, the appellant is, I think, entitled to'contend that shehas not been legally divested of hsv title to a half share of thesepremises by her husband’s deed of gift. Express authority insupport of the appellant's contention is to be found in the case ofParasathy Ammal v. SetupvUe,1 where it was held in. an action bythe widow to vindicate her title to property donated by her husbandthat she was entitled to judgment for half the property, “ inasmuchas by the Tamil customary law the donor, could only dispose of halfthe property.”'^
For these reasons I think the appellant, who has not been legallydivested of her title to half these premises, is entitled to succeed.
I would accordingly allow the appeal, with costs.
H2872)ZN.L.B. 271.