107-NLR-NLR-V-45-SEENIVASAGAM-Appellant-and-VAITHYLINGAM-Reaspondent.pdf
1944Seenioasagam and Vaithylingam.Present: Hearne and Soertsz JJ.
4uy
SEENTVASAGAM, Appellant, and VAITBCYLIiTGAM, Respondent.
34—D. C., Point Pedro, 1,653.
rhesawalamai—Donationof Thediathetam property byhusband—Con-
veyance by wife of her share after death of husband—Conflict of title.
Under the Thesawalamai the husband is not entitled to donate mowthan half the thediathetam property.
Where the husband donates the entire property and the donee retainsthvi^ property, and where, after the death of the husband, wife gives atransfer of her share to another the conveyance is good as against thedonee from the husband.
A
PPEAL from a judgment of the District Judge of Point Pedro.The facts appear from the argument.
N. Nadarajah, K.C. (with him M. M. K. Subramaniam and V. K.Kandaswamy), for the defendant, appellant-—One S. died in ^February,1941, leaving three sons, namely, the plaintiff, the defendant and another,and a daughter who had been given in marriage. By deed D 1 of 1938he had transferred to the defendant all the properties which had beenacquired during the subsistence of his marriage. The trial Judge hasfound that the transfer was by way of donation. After t.he death of thehusband the wife gave her half share of the same properties to the plaintiffwho now claims .title to it in this action.
Thr point at issue is whether a husband governed by file Thesawalamaican donate the entirety of the thediathetam property without the consentof the wife. It is settled law that he can mortgage or sell the entirety—Seelachchy v. Visuvanathan Chetty 1. He can also give it by way ofdowry to his daughters. The question, however, whether he can donatemore than his half share of .the thediathetam is left in doubt. It was heldin Parasathy Atnmah et dl. v. Setupulle 2 that he could not do so. Butthat case was later considered in Seelachchy v. Visuvanathan Chetty(supra') where Bertram C.J. and de Sampayo J. were inclined to take the•view that such a donation is not ipso facto void. See also Tankamuttu v.Kanapathipillai 3. In Iya Mattayar v. Kanapathipillai et alA the dissent-ing view of Garvin J. in Seelachchy v. Visuvanathan Chetty was adopted.Other cases which have a bearing on the point are Sangarapillai v.Devaraja Mudaliyar et al.s and Avichy Chettiar v. Rasamma 6. It is-submitted that there is no difference in principle between the right tomortgage or sell and the right to donate. The decision of four Judges inSangarapillai v. Devaraja Mudaliyar et al. (supra) removes the foundationof .the view of Garvin J. in Seelachchy v. Visuvanathan Chetty (supra).
When the wife’s share of thediathetam has been transferred by thehusband, the wife or any one claiming through her, cannot follow theproperty against the alienee, and her only remedy , if any, is to claimcompensation from the estate of the husband. This view which is-
1 (1922) 23 N. L. R. 97.* (1928) 29N. L. R. 301.
* (1872) 3 N. L. R. 271.6 (1936) 38N. L. R. 1.
» (1923) 25 N. L. R. 153.8 (1933) 35N. L. R. 313.
410
HEARNE J.—Seenivasagam and Vaithylingam.
definitely expressed by de Sampayo J. in Seelachchy v. VisuvanathanChetty {supra) and Tankamuttu v. Kanapathipillai {supra) finds supportin the provision of the law in the second half of section 5 of Part IV. of theThesawalamai Regulation (Cap. 51).
On a question where the Thesawalamai is silent the Roman-Dutchlaw will apply—Puthathamby et al. v. Mailvakanam et al.1. The Thasa-walamai is silent as to the right of the husband to donate more thanhalf of the thediathetam. Under the Roman-Dutch law donations,though excessive and immoderate, made by the husband to third partieswill hold good against the wife unless there has been clear fraud on thepart of the husband—Nathan’s The Common Law of S. Africa {190^ed.),Vol. I, p. 227; Weerasooriya et al. v. Weerasooriya et al.2. No fraud hasbee proved in the present case.
H. W. Thambiah„ for the plaintiff, respondent.-—The points in questionhave already been considered in a number of decisions—ParasathyAmmah et al. v. Setupulle 3; Sampasivam v. Manikkam et al.*; Pon-nachchy v. Vallipuram s; Iya Mattayar v. Kanapathipillai et al. {supra).Section 20 of Ordinance 1 of 1911 (Cap. 48) only restates the previouslaw—Sangarapillai v. Devaraja Mudaliyar et al. {supra). It is now wellestablished that one-half of the thediathetam vests in the wife, and thehusband cannot donate it.
Even where the Thesawalamai has no express provision, the Roman-Dutch law is not applicable in a case which can be decided by generalprinciples deduced from the Thesawalamai—Chanmugam et al. v. Kandiahet al. 6.
N. Nadarajah, K.C., replied.
Cur. adv. vult.
July 26, 1944. Hearne J.—
The plaintiff and the defendant are brothers. Their father hadtransferred during his lifetime to the defendant the properties describedin the plaint. These had been, acquired during the subsistence of hismarriage with Ponnachchy, the mother of the parties.
The trial Judge held that at the time of the transfer the father wasnot indebted to the defendant, and that the transfer was by way ofdonation. I accept this finding of fact. Ponnachchy conveyed her halfshare of the thediathetam to her son, the plaintiff, by deed P 5. Inthese circumstances the rights of the two brothers under the rival deedsdepend upon the answers to two questions. (1) is a husband governedby the law of the Thesawalamai entitled to deal with the whole of thethediathetam property by way of donation? (2) If he does so, whatis his wife’s remedy? Is her share irretrievably lost?
The first question was answered in the negative' as far back as 1872.In Parasathy Ammah v. Setupulle {supra) it was held that, “ although thehusband had the right …. to manage and dispose' of property
(1897) 3 N. L. R. 42.* (1921) 23 N. L. R. 257.
(1910) 13 N. L. R. 376.s (1923) 25 N. L. R. 151.
2 (1872) 3 N. L. R. 271.8 (1921) 23 N- L. R. 221.
HEABNE J.—Seenivasagam and Vaithylingam.
411
belonging to the community by way of sale, he had no power to donateanything beyond half of the properlyThe correctness of the law
on Jbhis point was not questioned in Sampasivam v. Manikkam1.
In Seelachchy v. Visuvanathan Chetty z, it was decided by the majorityof the Judges, on different grounds, that a bona fide purchaser acquiredgood title (in that case the transfer was a gift to a son from whom thedefendant had purchased bona fide), but both of the Judges, whotook this view, approved the decision in Parasathy Ammah v.Setupulle {supra) in no uncertain terms. Bertram C.J. said that “ thedecision must be accepted as correctly stating the law ” whileGar^n A.J. said, “ Express authority …. is to be foundin th^ case of Parasathy Ammah v. Setupulle, where it washeld in an action by the widow to vindicate her title to property donatedby her husband that she was entitled to judgment for half the property,
‘ inasmuch as by the Tamil customary law the donor could only disposeof half the property ’The binding authority if this case can hardly
be questioned now.
In regard to the 2nd question there is authority for the view that awife’s remedy is to claim compensation from her husband’s estate and“ not to claim against an alienee from her husband a half share in anyspecific property Tankamuttu v. Kanapathipillai 3. It was stated byde Sampayo A.C.J. that this was what .the majority of the Judges haddecided in Seelachchy v. Visuvanathan Ghetty {supra) but, clearly, this isnot the case. Bertram C.J. expressly reserved the point, while Garvin A.J.thought that “ if the husband has not the power to dispose of more thanone half, the wife is entitled to contend that she has not been divested ofher title to a half share of her husband’s deed of gift ”. This view ofthe matter commended itself to Dalton J. in a judgment with whichByall Grant J. agreed in Iya Mattayar v. Kanapathipillai et al* and if Imay say so with respect, strongly commends itself to me.
The position, as it appears to me is this. If a husband donates thewhole of the thediathetam property to a son and the donee conveys itto a bona fide purchaser, the latter acquires good title and the wife’sonly remedy is a claim for compensation. If, however, the donee retainsproperty conveyed to him and, as in this ease, after the death of thehusband, the wife gives a transfer of her share to another son, thatconveyance is good against the husband’s donee. Her remedy is notrmly by way of a suit for compensation. She can assert her claim to herhalf share against the husband’s donee and the transferee from her cando the same.
The Judge followed Parasathy Ammah v. Setupulle and Iya MattayarKanapathipillai and correctly held that the decision inSeelachchy v. Visuvanathan Ghetty was not applicable to the factsof .the case before him. In doing so and in giving judgment in favourof the plaintiff-respondent, he was, in my opinion, right. I would dismissthe appeal with costs.
Soertsz J—I agree.
Appeal dismissed.
1 (1921) 23 N. L. R. 257.* (1922) 23 N. L. R. 97.
(1923) 25 N. L. R. 153. „(1928) 29 N. L. R. 301.