SELLAPPAH, Appellant and SINNADURAI et al., Respondents

020-NLR-NLR-V-53-SELLAPPAH-Appellant-and-SINNADURAI-et-al.-Respondents.pdf


Sellappah v. Sinnadurai
121
1951Present : Nagalingam J., Basnayake J. add Swan J.SELLAPPAH, Appellant, and SINNADURAI et al., Respondents
S. C. 554—D. C., Point Pedro, 2,873
Thesavalamai—Jaffna Matrimonial Bights and Inheritance Ordinance (Cap. 48),ss. 6, 19 and 20—Thediatheddam—Retrospective operation of amendingOrdinance, No. 58 of 1947—Interpretation Ordinance (Cap. 2), s. 6 (2) end
(o).
Co-owners—Transfer, by a co-owner, of entirety of common property to stranger—Prescriptive possession by transferee—How computed.
Appeal—Case from District Court—Constitution of Appellate Court—Courts Ordinance(Cap. 6), ss. 38, 48 and 51.
Held (Basnayake J. dissenting): (i) The amendment of sections 6 and 12of the Jaffna .Matrimonial Bights and Inheritance Ordinance (Cap. 48) byOrdinance No. 58 of 1947 has retrospective operation. The amending Ordinancewas enacted in order to declare what the law always,was and to restore the lawas it stood before the decision in Avitchy Chettiar v. Rasamma (1933) 35 N. L. B.313. Where, therefore, a woman, who married in 1917, purchased certain landsin 1918 with her dowry money during the subsistence of the marriage, such laudsmust be regarded as her separate property and not as thediatheddam.
Where one of several co-owners sells the entirety of the common property
to a person who is a stranger and not a co-heir and who purchases it withoutany knowledge or belief that any other party is entitled to any interest in theproperty, the possession of the purchaser is" not the possession of the co-owners.In such a case, Corea v. Iseris Appuhamy (1911) 15 N. L. E. 65 or Brito v.Muttunaydgam (1918) 20 N. Li. B. 327 is inapplicable, and the purchaser .acquirestitle to theproperty after adverse possession for ten years.
Under section 38 of the Courts Ordinance, an appeal from a judgmentof a District Court may be directed by the Chief Justice to be listed before threeJudges if two Judges, after a preliminary hearing of the appeal, request theChief Justice to make such direction.
A PPEAL from a judgment of the District Court, Point Pedro.
This appeal was reserved fdr adjudication by a Bench of threeJudges on a reference made by Dias S. P. J. and Swan J.
V. Perera K.C:, with H. W. Pambiah, C. Renganathan,T. Soma&underam and S. Sharvananda for the plaintiff-appellant.—The point that arises on this appeal is whether certain property claimedby the plaintiff is thediatheddam. property. In September, 1917, plaintiffmarried third defendant, who, in March, 1918, during the subsistenceof the marriage, acquired the property in dispute with her dowry money.The plaintiff thereafter went to Malaya, where he was employed,- andremained there a considerable time. In December, 1923, the wife,who remained in Jaffna, made an application to the District Court ofJaffna for permission to sell her dowry property without the consentof her husband, on the ground that the husband had deserted her.The application was allowed and the third defendant purported to
Setlappah c. Sitmadurai
123
convey by deed D 4 of 1924. the land in dispute to Rasamma. FromBasamma the lands devolved ultimately on the first and seconddefendants. The plaint in the present action was filed on February 14,1947, and the answer of the first and second defendant was filed on■ June 27, 1947. On July 3, 1947, the Jaffna Matrimonial Rights andInheritance (Amendment) Ordinance, Uo. 58 of 1947, was proclaimed.
At the time of acquisition of the property in dispute Ordinance No. 1of 1911 (Chap. 48) was in operation and under that Ordinance theproperty is “ acquired ” or thediatheddam property, notwithstandingthe fact that the money was dowry money. Under the Ordinance of1911 such property belonged equally to the two spouses. Accordingto the phraseology of section 19 of the Ordinance of 1911, if- propertyis acquired by the wife for valuable consideration during the subsistenceof marriage the property is thediatheddam even though the source ofthe consideration is dowry money of the wife. Further, the propertyis .the diatkeddum “of” the wife. Section 20 provides the answer tothe question “ who are the owners of such property ? ”. Inheritanceis dealt with ^in sub-section 2. One of the incidents of Thesavalamaiis that the husband can deal with the thediatheddam. of the wife as heis regarded as the manager of the common property.
[Nagalingam J.—Only if the property is in his name ?]
Even if it is in the wife’s name. The whole of the Thesavalamai isnot abrogated by Ordinance No. 1 of 1911—Sangarapillai v. DevarajaMudaliyar l. As husband, he is manager of the common property.The wife has no power to deal with her property.She has no power
to dispose of her half share. Where property is acquired by a wife•during marriage and deed is executed in her favour it vests by lawin both the spouses—Ponnachchy .v. Vallipuram 2. Where property is.acquired by a husband during subsistence of marriage the title, legaland beneficial, vests by operation of law in husband and wife—Sellachchyv. Visuvanathan Chetty 3. Therefore, a husband can convey legal titleto the. whole of the property as he is the owner of the communio.He can sell in the course of management although he has no. deed inhis own name. But he cannot donate more than his half share—seethe judgment of Garvin J. in Sellachchy v. Visuvanathan Chetty (supra).The majority view in that case was that the husband can dispose ofthe whole property as he is the absolute manager. See also Sangarapillaiv. Devaraja Mudaliyar (supra). In the present case Ordinance No. 1of 1911 is applicable. The parties were married in 1917 and theproperty was acquired for valuable consideration in 1918. The.separate property can be alienated with the. consent of the DistrictJudge. The District Judge can dispense with the husband’s consent .only when the wife wants to deal with her separate property. In othercases no court can give consent. If the property in dispute in thiscase was not separate property, and was thediatheddam within themeaning of Ordinance No. 1 of 1911, .then the Court cannot giveconsent. Was it thediatheddam property ? Section 19 makes it clear
•* (1936) 38 N.L.R.l.» (1923) 25 NJJ. R. 151.
*(1922) 23 N. L. R. 97.
– Sellappah c. Sinnadurai
123
that it was thediatheddam of the wife, and section 20 (1) indicates thatit belongs to both husband and wife equally. See Avitchy' Chetti'ar v.Rasamma l. After the answer was filed in the present case the JaffnaMatrimonial Eights and ' Inheritance (Amendment) Ordinance, No. 58of 1947. came into operation. It is submitted that this Ordinancedid not operate retrospectively. There ds nothing in the Ordinanceitself to* say that it is retrospective. Section 7 declares that theamendment shall not affect the rights of the parties in the case ofAvitchy Chettiar v. Rasamma (supra) and in other cases in.which thatcase may have been followed. ' This section was inserted ex abundantioautela. It does not say, by necessary or reasonable implication, thatthe amendment affected the mutual rights of parties in all cases otherthan those expressly indicated. The fact that the amending Ordinancerefers to the earlier Ordinance as the “ principal Ordinance ” is no-indication that the amending Ordinance is retrospective, as practically.all amending Ordinances refer to the earlier Ordinances in the sameway whenever the amendments are not of a simple nature. Withregard to the meaning of the expression “ principal Ordinance ” seesection 5 of the Interpretation Ordinance. Further, section 6 (3) (6)of the Interpretation Ordinance appears to be decisive on this question.No right can be taken away unless expressly taken away by writtenlaw. In England (52 and 53 Viet. Cap. 63) the problem is more-difficult. There must be an intention to affect vested rights—Berberv. Pigden *; The Guardians of the Poor of the West Derby Union v. TheMetropolitan Life Assurance Society 3.
It is submitted therefore that Sachchithananthan v. Sivaguru * waswrongly decided and that Ordinance No. 58 of 1947 has no retrospective-effect.
C. Thiagalingam, K.C. with V. A. Kandiah and E. R. S. R.Coomaraswamy for the defendant-respondent.—Sections 19 and 20 of'Ordinance No. 1 of 1911 have nothing to do with this case. The questionis what is the meaning of the word thediatheddam. _ It does not meana different thing before and after the amending Ordinance came intoforce. The amending Ordinance is a declaratory statute. The questionwhether it is of retrospective effect does not really arise. The statuteis declaratory because it seeks to define the word thediatheddam in viewof erroneous decisions. Assuming that sections 19 and 20 have some-application, two questions arise—what is thediatheddam, and on whomdoes thediatheddam rest? With regard to the meaning of “ acquired "in section 19 see the Thesavalamai (Chap. 51) Part I, section. I, and the-judgment of Withers J. in Jivaratnam v. Murukesu *. Section 19 (a) ,cf Ordinance No. 1 of 1911 correctly defined thediatheddam and thereis no necessity to consider the amending Ordinance. See also Nalliakv. Ponnamah It is perfectly clear that the property in dispute wasthe property of the wife as it was admittedly purchased with dowrymoney. With regard to the question' whether the amending Ordinance-was retrospective, see Odgers’ Construction of Statutes, 1946 ed., p. 194p
1 (7933) 35 N. L. R 313.* (1949) 50 N. L. R. 293.
, (1937) 1 K. B. 664.5 (1895) 1 N. it. R. 251. *
* It. R. (1897) A. C. 647 at p. 655!* (1920) 22 U. L. R. 198.
124
NAGALINGAM J.—Scllappah t>. Sinnadurai
Halsbury’s Laws of England, 1st ed., Vol. 27, pp. 116, 162. Even whereno express words appear in a statute to indicate that the statute isretrospective, still, if the context so requires, a retrospective effect canbe given to it—A.O. v. Theobald l; Lane v. Lane 2.
With regard to the use of the word “ repeal ”, see Surtees v. Ellison *.When an Act is said to be “ repealed ”, except as regards past trans-actions, the old Act is treated as if it had not existed. The effect- of theuse of the words “ delete and substitute ” in the amendment is to makeone read the principal Ordinance as if the words in the amendmentwere in the principal Ordinance from 1911. Section 6 of the Inter-pretation Ordinance has no application, as that refers to total repeal.
[At this stage Counsel for the appellant submitted that the Benchwas not properly constituted. The argument in regard- to thissubmission is dealt with in the judgments of Basnayake J. and Swan J.infra.')*
T. Perera, K.C., in reply.—Even if there is a canon'of interpretationwhich comes into conflict with section 6 of the Interpretation Ordinancethe statutory provision must prevail. The “ dominant intention ofthe legislature ” referred to in Sachithanantham v. Sivaguru (supra)is something subjective. The intention, of a statute- and the intentionin enacting a statute are different. The proper test would be—is thereexpress provision' in the new Ordinance taking away rights acquiredunder the old Ordinance? Section 7 of the amendment is a “ savingclause ”. With regard to the effect ' of a saving clause, gee PunjabProvince v. Davlat Singh *.
W. Tambiah continued.—The trial Judge did not consider thequestions of adverse possession and ouster. The parties are co-ownersand no prescription can arise. There is no evidence of adversepossession and no ouster was proved—Corea v. Appuhamys; Sideris v.Simon 6. Mere possession and the execution of deeds do not amountto ouster—Ummu Ham v. Koch1. See also Cooray v. Perera * and
L. M. Cadija Umma v. S. Don Manis Appu 9.
Cur. adv. vult.
October 10, 1951. Nagalingam J.—
This appeal raises a point of some importance in regard to the matri-monial lights of a wife governed by the Matrimonial Bights and Inheri-tance (Jaffna) Ordinance (Cap. 48 of the Legislative -Enactments).Though the argument has ranged over a' very wide field, the decision■of the case lies in a very narrow compass.
The facts- briefly are: The plaintiff married his wife the third defendantin September, 1917. In March, 1918, by deed P2, the third defendantbought certain lands with her dowry–money and the lands in dispute
■* (1890) 24 Q. B. D. 557.
(1896) 74 J2. T. 557.
» (1829) 7 L. J. (O. S. ) K. B. 335.
(1942) A. I. B. Bed. Court 38 at p. 42.
(1911) 15 N. L. R. 65.
(1945) 46 N. L. R. 273.
’ (1946) 47 N. A. R. 107.
(1944) 45 N. L. R. 455 at p. 456.
• (1939) 40 N. L. R. 392 at p. 396.
125
NAGALINGAM 7.—Bellappah v. Sinnadurai
are two of those lands she purchased. The husband, the plaintiff, wentto Malaya in June, 1918, while the wife continued to remain in Jaffna.In December, 1923, the wife applied to the District Court of Jaffna forpermission to sell her dowry property without joining her husband as aparty, as the husband, she alleged, had deserted her for a period of overtwo years and also as she had made attempts to find his whereabouts andhad failed in her attempts. That application was allowed by the DistrictCourt and the third defendant sold and conveyed inter alia the lands indispute to one Basamma by deed D4 of March, 1924. From Easammathe lands in dispute have devolved ^through simple mesne conveyances onthe first and second defendants.
The plaintiff has instituted this action’ for a declaration of title that heis entitled to these lands, for ejectment of the first and second defendantsand for damages against them. He also avers in the plaint that the thirddefendant his wife is made a party defendant as she is unwilling to joinhim in the action. The plaintiff’s evidence, however, shows that he andhis wife were living together at the date of the institution of this action.
The question that arises is whether the conveyance D4 of 1924 by thethird defendant in favour of Easamma is valid. The validity,of the deeddepends upon the further question as to what were the third defendant’srights in law in respect of the disputed properties.
. Under the Thesawalamai, the law prior to the passing of the Ordinance,not only was the dowry property of a married woman her separate pro-perty but also any property into which such dowry property may havebeen converted; for example where a wife received a cash dowry from herparents and with that cash she purchased immovable property, that im-movable property would continue to be her separate property, for it wasregarded as merely having taken the place of the cash and to be impressedwith the character of dowry money with which it had been purchased.Even after the enactment of the Ordinance this view continued to holdground. See the cases of Nalliah v. Ponnamah 1 and Sellachchy v. Visu-vanathan Che tty'3. In both these cases the view was taken that tediatetamproperty within the meshing of the un-amended section 19 of the Ordi-nance did not include property purchased by a spouse with his or herseparate funds and that where property was purchased with separatefunds by a spouse such purchase continued to .be the separate propertyof such spouse. The first of these two cases was decided by de Sampayo
and Schneider A. J. while the latter which is headed “ Full Bench ”was decided by Bertram C. J. and de Sampayo J., Garvin A. J. dissenting.
It will be noticed that the application made by the third defendantto the Court was made after the decision of these two cases (the formerin 1920 and the latter in 1922) and was based on the view expressedauthoritatively in these two cases, one of them being regarded, in anyevent at that time, as a Full Bench decision of this Court: so thatcorrectly and properly the lands purchased by the third defendant,admittedly with her dowry, money, were her separate property whichshe was entitled to deal with under section 6 of the Ordinance, providedshe obtained the consent of Court: The Court itself took the same view
V (1920) 22 N. L. R. 198.* (1922) 23 N. L. R. 97.
126
NAGALINGAM J.—Sellappah v. Sinnadurai
of the law and granted the third defendant's application. It would bemanifest that the third defendant, if she instituted the action now,would be met by a plea of estoppel and one can, therefore, quite under-stand why she has not joined the husband in bringing the action..
The law was accepted in the sense laid down in these two cases andcontinued to be acted upon until 1933, when in the case of Avitchy Chettiarv. Ra8amma 1 a Divisional Bench departed from the principal expressedin these two cases and adopted the view that the naked fact of thepurchase of .property by either husband^ or wife dining the subsistenceof marriage resulted in the property purchased being freed fromthe character of separate property even though the consideration providedfor such purchase is shown to be the separate fund of the spouse sopurchasing. A Commission was appointed in 1929 to consider and.report on amendments to Thesawalamai 'and it was to give effect to the-recommendation of the Commission (see Sessional Papers 3 of 1930 and 1 of1933), that the amending Ordinance was prepared but before the amendingOrdinance could be presented to the State Council, Avitchy Chettiarv. Rasamma (supra) was decided and the Legislature took the oppor-tunity as stated in the objects and reasons (which are reproduced here-under for convenience of reference) 2 inter-alia to make “ some modifica-tions rendered necessary ” by the decision and with intent “ to give-,a clear definition of the separate property of each of the partners of a.marriage ” “ based on well established custom ” and “ to remove 'theambiguity which led to the decision in the case of Avitchy Chettiar v.Rasamma ” {supra) enacted the Jaffna Matrimonial Rights andInheritance (Amendment) Ordinance, No. 58 of 1947, in the form in-which it appears.
(1933) 35 N. L. R. 313.
Ceylon Government Gazette No. 8,274; Part II, February 26, 1937 :
“ Objects and Reasons.
This Bill is intended to give effect to the recommendations contained in theReport of the_ Thesawalamai Commission dated December 12, 1929 (SessionalPaper III of 1930) and in their Supplementary Report of October 9, 1931 (Sessional’Paper I of 1933) with some modifications rendered necessary by the decision of theSupreme Court in the case of Avitchy Chettiar v. Sasamma (35 N. L. S. page 313).
Clause 2 is designed to place-beyond doubt the applicability of the JaffnaMatrimonial Rights arid Inheritance Ordinance, 1911, to all the property of thosegoverned by it regardless of the actual situation of such property, whether in theNorthern Province or elsewhere.
– In clauses 3 and 4 amendments are proposed to sections 8 and 9 of the principal'Ordinance, in order to give a clear definition of pie separate property of each of thepartners of a marriage. The definition is based on well-established custom and isintended to remove ambiguity which led to the decision in the case of Avitchy Chettiarv. Sasamma. A clearer definition of thediatheddam is also proposed in claused,and the new principle according to which thediatheddam is to devolve on the intestacyof a spouse is set out in Clause- 6.
Although the meaning of section 24 of the principal Ordinance is that sonsand daughters all take equal shares, it seems to be necessary to add to it the provisionthat the surviving parent or other members of the family may no longer exercise thecustomary right of distributing all the property of the deceased parent as dowry to-the daughters to the exclusion of the sons. This proposal is set out in Clause 7.
The object of Clause 8 is to save the rights of the parties in the case of AvitchyChettiar v. Sasamma and in other cases in which that case may have been followed
'as a precedent prior to the. date on which this amendment becomes law.
J. C. Howard,Legal Secretary.
Colombo, February 23, 1937,
NAG ALIN GAM J.—Sellappah ». Sinnadurai
127
The question that now arises is as to what is the effective date ofoperation of the provisions of the amending Ordinance. I think itis elementary to state that one should look at the enactments themselvesin* the first instance to see if any assistance can be derived therefromin regard to the question and if the Legislature either expressly or bynecessary implication has indicated the date of operation, then theanswer is found. With this end in view I shall set out the relevant portionof section 6 of the Ordinance as amended by the Amending Ordinance:
" All movable or immovable property to which any woman marriedafter the commencement of this Ordinance may be entitled at the timeof her marriage, or which she may during the subsistence of the marriageacquire or become entitled to by way of gift or inheritance or byconversion of any property to which she may have been so entitled orwhich she may so acquire or become entitled to shall …. belongto the woman for her separate estate … ”
Nothing can be clearer than that- the Legislature intended that thesection as amended should apply to all women married after the com-mencement of this Ordinance for the section as amended expressly saysso. If this section as amended applies to all women married after thecommencement of this Ordinance, as it undoubtedly does, it is hardlynecessary to inquire further from when does the amendment speak, forit obvious it must necessarily speak from the date of. the commence-ment of the Ordinance itself, for only then can it. apply to till womenmarried after the commencement of the Ordinance, that is to say, from the17th of July, 1911, the date of commencement of the Ordinance. Thereare no words from which it is possible to come to any other conclusionmuch less that the section as amended only applies to women marriedafter the passing of the amending Ordinance, No. 58 o£ 1947, on 4th July,1947. To intrqduce the notion that the section as amended is to applyonly to persons married after the 4th July, 1947, the date of passing ofthe amending Ordinance, one would have to recast the whole section anddelete the words “ any woman married after the commencement of .thisOrdinance ” and substitute – therefor the words “ any woman marriedafter 'the passing of the amending Ordinance.” In other words onecannot accept the view that the amendment is to apply only to womenmarried after 4th July, 1947, without doing violence of a totally un-justifiable character to the section itself. I cannot do better than quotean often cited passage from Craies on Statute Law 1 where the law isstated thus:
“If it is a necessary implication from the language employed thatthe Legislature intended a particular section to have a retrospectiveoperation, the Courts will give it such an operation. * Baron Parkesaid Lord Hatherley in Pardo v. Bingham 2 ‘ did not consider it aninvariable rule that a statute could not be retrospective unless so ex-pressed in the very terms of the section -which had to be construed,and said that the question in each case was whether the Legislaturehad sufficiently expressed that intention. In fact, we must look to
1 4th ed. p. 334.* (1870) 4 Ch. App. 735. 740.
14-N.L. R. Vol.-Liii
128
NAGAXiINGAM J.—Sellappah v. Sinnadurai
the general scope and purview of the statute, and at the remedy soughtto be applied, and consider what was the former state of the law, andwhat it was that the Legislature contemplated’.
If one bears therefore in mind that the separate property of a spouse wasdefined in the way in which it received judicial interpretation in the casesof Nalliah v. Ponnamah 1 and Sellachchy v. V is uv ana than Chetty 2 for over22 years even after the passing of the Ordinance before that definitionwas assailed in the case of Avitchy Chettiar v. Basamma 8 and when it isremembered that not merely as a result of the report of the Commissionbut in consequence of the last mentioned decision it was that the lawwas amended, it is not difficult to see that the Legislature intended thatthe amendment which was in the nature of a piece of enactment declaringwhat the law always was and restoring the law as it stood before thedecision in Avitchy Chettiar v. Basamma 3 should have operation from thecommencement of the Ordinance itsqjf. It is hardly necessary to observethat the amendment restores the law- as stated in. Nalliah v. Ponnammah 1and Sellachchy v. Visuvanathan Chetty 2 and departs from that expressedin Avitchy'Chettiar v. Basamma. 3
It would also be noticed that section 3 of the amending Ordinancewhich amends section .6 of the principal Ordinance does not use the term•“ repeal ” and no question arises therefore of any-attempt made on thepart of the Legislature to conserve any vested rights. Indeed the con-clusion would appear to be irresistible that the Legislature did not regardthat by passing the amending section 3 it was interfering with any vestedrights of a husband who was married after the commencement of the Ordi-nance and whose wife was yet living, for it is obvious that no argumentbased on section 6 (2) of the Interpretation Ordinance was available tosuch a husband, as* contended for at the Bar.
In this view of the matter it is clear that the lands in question to whichtec third defendant became entitled by conversion of her dowry money towhich she was entitled at the time of her marriage were her separateproperty and therefore the alienation by deed 1)4 with the permission ofCourt was valid and binding so as to give an indefeasible title to thepurchaser. The first and second defendants have therefore a validtitle to the lands and no question of prescription arises so far-as thedefendants are concerned for they have a legal title in themselves. Itis for the plaintiff to show that he who has no paper title has a title byprescription but the evidence is conclusive that he never has had posses-sion since 1924, when the sale to Basamma took place.
I should, however, wish to make an observation in regard $o the conten-tion based on the assumption that the 'first and second defendants wereco-owners with the plaintiff and that the;r possession was therefore theplaintiff’s possession. This contention was advanced on the footing ofCorea v. Iseris Appuhamy * and Britto v. Muttunayagam 5 and similarcases. It will be found that in all these cases the action was againsta co-heir who continued to be in possession and not against a stranger
1 {1920) 22 N. L. R. 198.3 (1933) 35 N. L. R. 313.
1 (1922 23 N. L. R. 97.* (1911) 15 N. L. R. 65.
(1918) 20 N. L. R. 321. ‘
BA8NAYAJCE J.—Sellappah v. Sinnadurai
129
who had bought the entirety of the land from one of the co-owners andcontinued to be in exclusive possession thereof. The point is covered byauthority. In the case of Mohamed Marikar v. Kirilamaya 1 two heirspurporting to be the sole heirs of the original owner transferred the landto the defendant. After the expiry of over ten years, a purchaser fromanother heir of the original owner instituted an action for declaration oftitle for a share and relied upon co-ownership to surmount the obstaclepresented by adverse possession. Schneider J, with whom Garvin A.J..agreed, held that the judgment in the ease of Corea v. Iseris Appvhamy 2was inapplicable to the circumstances of that case. In the present caseRasamma and her successors in title had been in exclusive possessionfrom 1924 till the date of the institution of action in 1947. Their posses-sion was overt and was adverse to the plaintiff, and it is in these circum-stances idle to contend that Basamma or any of her successors in titleever regarded themselves as co-owners with anyone else. Basanuna andher successors in’ title purchased the entirety of the property withoutany knowledge or belief of the existence of any other party entitled toany interest in the land. The plea of prescription therefore is of no availto the plaintiff.
Plaintiff’s action therefore fails.
An argument was addressed to us with regard to the date of operationof the new sections 19 and 20. These come under Part HI of the Ordi-nance dealing with inheritance and have no application to the problenj*presented by the present case. I need only observe that if one will readsection 14 and the new sections 19 and 20 it would be noticed that eventhose sections have operation from the date of the passing of the Ordi-nance and catch up estates of all persons who may have died after thecommencement of the Ordinance, subject to the limitation contained insection 14 itself. One can then quite appreciate the reason for enactingsection 7 of the amending Ordinance and why it was necessary to enactthat the amendments made by the amending Ordinance were not to bedeemed to affect the mutual rights of the parties in Avitchy Chettiar v.Rasamma 3 or in other cases decided in accordance with the decision of _that case; for in truth the amendments affect the estates of all persons whodied after 1911.
For the foregoing reasons, the appeal is dismissed with costs.
Basnayake J.—.
This case came up for argument in the first instance on the 3rd ofJuly, 1950, before my brothers Bias and Swan. Both the appellant andthe respondent were represented by counsel. After a preliminary hearingmy brother Bias made the following order with which my ■ brother Swanconcurred:
“ My learned brother and I sue agreed that this case should bereferred to the learned Chief Justice as we are of opinion that thiscase merits consideration by a Bench of three or more judges of the
Supreme Court.
i {1922) 1 T. L. R. 158.1 (1911) IS N. L. R. 65.
. K. B 69182 (10/57)
(1933) 35 N. L. R. 313.
130
BASNAYAKE J.—Sellappah. s. Sinnadurai
“ The question is whether the amendment of section 19 of the JaffnaMatrimonial Eights and Inheritance Ordinance (Chapter 48) by Ordi-nance No. 58 of 1947 has a retrospective effect, viz., whether rightswhich vested prior to the amendment are affected by the amendingOrdinance ? The question will also arise – whether the case ofSachchithananthan v. Sivaguru (1949) 50 N. L». . R. page 293 has beenrightly decided ? For these reasons we think this case merits considera-tion by a Divisional Bench or Fuller Bench. Mr. Kandiah wants usto note that even if the point is decided against him that he has otherquestions to argue in support of the judgment.”
The appeal was, on the order of My Lord the Chief Justice, then listedbefore a Bench of three Judges consisting of my brothers Nagalingantand Swan and myself.
It was argued on the 19th and 21st of December, 1950, and its hearingwas interrupted by the Christmas vacation. Owing to the absence ofthe Judges who composed the Bench on circuit, it was not possible toresume the hearing till 26th September, 1951. At the resumption ofthe hearing learned counsel for the appellant brought to our notice thatthe Bench hearing the appeal was not properly constituted in as muchas the reference to a Bench of three Judges was not in accordance withsection 51 of the Courts Ordinance. He argued that the Chief Justicehad power to refer a case to a Bench of two or more Judges under section43a of the Courts Ordinance, and that he had also power to constitutea Full Bench under section 51 of the Courts Ordinance. Learned counselcontended that the present reference was under neither section of theCourts Ordinance and that the Chief Justice had no other power to referthe matter to a decision of two or more Judges.
Learned counsel for the respondent submitted that the Bench wasproperly constituted. He relied on section 38 of the Courts Ordinance.The material portion of that section reads:
“ All appeals in civil cases from the decision of a single Judge sittingas in the last preceding section provided, and from judgments andorders of the several District Courts of the Island, shall be heard beforetwo at least of the Judges of the said Court.”
He laid emphasis on the words “ at least ” and submitted that thosewords indicated that more than two judges may hear a civil appeal froma District Court. I am unable to agree with that view. The words“ two at least ” do pot mean “ two or more ”. It is another way ofsaying effectively that two Judges and not less than two shall hear civilappeals. Those words are well known in enactments, especially whereit is desired to fix a time or a period of time with certainty. In the caseof In re Railway Sleepers Supply Company 1 Chitty J. expressed the viewthat “ 14 days ” and " at least 14 days ” meant the same thing. Myview receives confirmation from the practice of this Court extending overa quarter of a century in listing civil appeals from District Courts beforetwo Judges and no more.
This being not an appeal before a single Judge the order by my brotherDias cannot be related to section 48 of the Courts Ordinance. It can only
1 (1885) 54 L.J. Ch. 722.
BASJsAYAKB J.—Sellappah v. Sinnadurai
131
be regarded as a request to My Lord the Chief Justice to exercise thefunctions vested in him by section 51 of the Courts Ordinance. Thepresent Bench has not been constituted as therein provided, and I amin agreement with the submission of learned counsel for the appellantthat the Bench as constituted at present for the purpose of this hearingis not in accordance with the statute, but as my brothers Nagalingamand Swan were of a different view the majority decided that the caseshould be heard and we gave counsel the opportunity of concluding theirarguments.,
This is an action by one Alfred Alagaratnam Chellappah for declarationof title, for ejeotment, and for damages in respect of two allotments ofland described in the schedule to the plaint.
The plaintiff’s case is that his wife, the 3rd defendant, purchsed in1918 four lands after his marriage with her in 1917, for a sum of Bs.4,750, which was part of her dowry. After the purchase of these lands,the plaintiff went to Malaya and remained there till 1946. Duringhis absence in Malaya his wife visited him once in 1941 and remainedwith him there till 1946, when they both returned. When he wentto the lands which are the subject matter of this action in 1946 he foundthat the first defendant wa$ in possession. On inquiry he learned thatthe lands had been sold by his wife, the third defendant, by deed D4of 17th March, 1924. The sale had been effected under the authorityof an order of court made on the application of the plaintiff’s wife. Tnher application she had alleged that she was the lawful wife of the plain-tiff, that her husband had deserted her for a period of over two years,that she was entirely dependent on her own earnings for the maintenanceof herself and her child, that owing to her state of indebtedness she wasdesirous of selling some of the dowry property, that she had failed totrace the whereabouts of her husband though every endeavour was madein that behalf, and that she was not aware whether he was alive or dead.That application was lodged on the 21st of December, 1923, and thelands in question were sold to one Mary Ttasamtnah, wife of one AlbertPonniah. The vendee on that deed P4 disposed of her rights in 1924,and the 1st, 2nd, 4th, and 5th defendants purchased the land in 1942.
The following issues were tried:
Were the lands in .dispute acquired for valuable consideration
during the subsistence of the plaintiff’s marriage with the 3rddefendant ?r
If so, did the plaintiff and the 3rd defendant become jointly entitled
to the said lands by reason of such acquisition ?
If so, is the plaintiff entitled to a declaration that he is entitled
to manage and deal with the said land ?
Is the plaintiff entitled to be placed in possession of the said lands ?
What damages ?
Are the 1st and 2nd- defendants entitled -to the said lands under-
and by virtue of deed No. 1226 of 5.5.1945 ?
Have the 1st and 2nd defendants acquired prescriptive title to
the said lands '?
Were the lands in question separate property of the 3rd defendant ?
132BABNAYAKFi J.—Sellappah o. Sinnadurai
The issues were answered against the plaintiff, and he has appealed.'The main question argued before us in appeal was that the Ordinancethat applied to the plaintiff and the third defendant at the time of purchaseand sale of the lands in question was the Jaffna Matrimonial BightsOrdinance of 1911, and that the relevant sections are 19 and 20 as theystood before the amendment of .that Ordinance by Ordinance No. 58of 1947 which came into operation on 3rd July, 1947.
For the respondent it was contended on the authority of the judgmentof my brother Nagalingam in Sachchitanathan v. Sivaguru 33 that OrdinanceNo. 58 of 1947 had retrospective effect and that sections 19 and 20,as amended by Ordinance No. 58 of 1947, applied to the plaintiff andthe third defendant in respect of the purchase and sale of the lands inquestion.
Learned counsel for the appellant contended that an Ordinance does notaffect the past operation of anything done under a repealed Ordinanceunless the repealing Ordinance expressly provides that past transactionsshall be affected. There is no such provision in Ordinance No. 58 of1947 and it cannot therefore be said to affect the purchase and sale by thethird defendant of the lands in question. Section 7 of Ordinance No. 58of 1947 declares that the amendment shall *not affect certain decisionsspecified therein. I am unable to regard that section as anything morethan a provision inserted ex abundanti cautela for .the purpose of prevent-ing any person from asserting that the amendments effected by theamending Ordinance affect the decision mentioned therein. ‘It is a well-lcnown rule of construction ~that legislation does not affect cases alreadydecided, and a provision such as section 7 is strictly unnecessary 34especially in view of section 6 (3) (a) of our Interpretation Ordinance.With great respect to-my brother Nagalingam, I am unable to agree withthe view taken by him.
If then the parties are governed by the 1911 Ordinance as it stoodbefore the amendment, the purchase effected by the third defendantwith her dowry money became her thediatheddam and she. was not freeto alienate more than her interest therein. The sale by her in the absenceof her husband did not pass title to more than a half share of the property.The fact that the sale was authorised by the Court does not affect thematter. A Court has no power to authorise a person to sell morethan his or her share of a land. It is no.t clear under what provisionof law the Court was moved in the matter and under what authority itsanctioned the sale. There is no statutory power enabling a Court tosanction a sale such as the one it sanctioned.
If the defendants have title only to an undivided half share of the lands,are they entitled to claim by virtue of prescriptive possession the otherhalf of which they and their predecessors were undoubtedly in possessionfrcm 'the date of sale ? It is contended for the appellant that prescriptiondoes not rim against the plaintiff in this case as the defendants werenothing more than co-owners with him and that their possession was not
» {1949) SO N. L. R. 293.34 (1912) A. C. 400, Lemm v. Mitchell ; (1917)
1 K. B. 259 Rex v. Southampton Income Tax Commissioners, Singer, Ex. p.
SWAN J.—Sellappah c. Sirtnadarai
183
adverse. Learned cousel has cited several decisions of this Court insupport of his contention that a co-owner’s possession enures to the benefitof the other co-owners and in this case there being no ouster the defen-dants are not entitled to secceed in their claim on the ground of prescrip-tion against the plaintiff in respect of his half share of the lands.
The learned District Judge does not discuss the question of prescriptionbeyond saying: * ‘ I accept the evidence of the 4th defendant as regardspossession and also as regards the presence of the plaintiff in Ceylon in1925 and in 1942.”
In the result the plaintiff is entitled to succeed. The. appeal istherefore allowed with costs both here and below.
Swan J.—
I should like, first of all, to deal with the point taken by Mr. H. V.Perera that this Bench of three Judges has not been properly constituted.and that we are acting without jurisdiction. The point was taken ata very late stage, in fact when learned Counsel for the respondent wasabout to conclude his argument. Mr. Perera said that he was not raisingit by way of objection, but that Ee merely desired to bring it to ournotice that we were not a properly constituted Bench. In this connec-tion he cited to us sections 38, 48, and 51 of the Courts Ordinance asamended by Courts (Amendment) Act, No. 52 of 1949.
Section 51 provides that “ it shall be lawful for the Chief Justice tomake order in writing in respect of any case brought up before theSupreme Court by way of appeal, review or revision, that it shall beheard by and before all the Judges of such Court, or by and before anyfive or more of such Judges named in the order, but so that the ChiefJustice shall always be one of such five or more Judges. ”
I do not think that section 51 has any application, because the ChiefJustice did not act, or purport to act, under that section.
Section 38 provides, inter alia, that " all appeals in civil cases fromjudgments and orders of the several District Courts of the Island shallbe heard before two at least of the Judges of the said Court ….In the event of any difference of opinion between such two Judges thedecision of the said Court shall be suspended until three Judges shallbe present, and the decision of such two Judges when unanimous, or ofthe majority of such three Judges, in case of any difference of opinion,shall in all cases be deemed and taken to be the judgment of theSupreme Court. ”
The concluding paragraph of section 38 as amended would read—
" Nothing in this section contained shall preclude any judge of theSupreme Court sitting alone in appeal from reserving any appeal for thedecision of more than one Judge of that Court.
Section 48 as amended provides that “ where any question shall arisefor adjudication in any case coming before a single Judge of the Supreme
134
SWAN .T.—Sellappak v. Sinnadurai
Court which shall appear to such Judge to be 'a question of doubt ordifficulty it shall be lawful for such Judge to reserve such question forthe decision of more than one Judge of that Court.
The Amending Act introduces a new section 48a which reads asfollows : —
“ Any appeal or question which" is, under section 38 or under section48, reserved for the decision of more than one Judge of the Supreme Court,shall be decided by a Bench, constituted in . accordance with an ordermade by the Chief Justice in that behalf, of two or more Judges of thatCourt. ”
Mr. Perera contends that when this case came up before two Judges ofthis Court they had no power or authority to reserve it for the decisionof a fuller Bench. What happened was that this case was listed forhearing before my brother Dias S.P.J. and myself. After learnedCounsel for the appellant had opened his case we thought that the mattersinvolved in the appeal merited consideration by a Bench of three or moreJudges of the Supreme Court, and we so reported to the Chief Justice.
I should add that Mr. H. W. Thambiah, who appeared as Senior Counselfor the appellant at that stage, expressly invited us to have the appeallisted before a fuller Bench. The case now comes up before a Benchof three Judges. The question is whether we have the right and authorityunder the Courts Ordinance to hear and decide this appeal. I think theanswer to that- question can be found in section 38 which states that
“ all appeals in civil casesfrom judgments and orders of the
several District Courts of the-Island shall be heard before two at least of theJudges of the said Court.
For these reasons I express the opinion that we are a properly con-stituted Bench to hear this appeal and-with that view my brother Naga-lingam agrees.'
As regards the appeal itself 1 agree with my brother Nagalingam thatit is impossible to come to any other rational conclusion than that theamendments contained in Ordinance 58 of 1947 operate as from the dateof commencement of the Jaffna Matrimonial Rights and InheritanceOrdinance—Cap. 48 of the Legislative Enactments, that is from 17.7.1911.It seems to me that the amending Ordinance was enacted in orderto declare what the law always was, as well as -to- remove any doubtsthat might have been created by the decision in Avitchy Chettiar v.Rasamma. a4
Even if this view of the matter is erroneous I would hold that the 1stand 2nd defendants have acquired a title by prescription.The circum-
stances ’ in which the 3rd defendant came to sell the lands in dispute,and Rasamma to purchase them, amount to an ouster, and would be thestarting point of adverse possession upon which a title by prescriptioncould lawfully be based.
In my opinion the appeal fails and I would dismiss it with costs.
Appeal dismissed.
« (1933) 35 N. L. B. 313