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DONDRIS v. KUDATCHI
NLR7V107
DONDRIS
v.
KUDATCHI.
C. R., Galle, 2,474.
Husband and wife-Divorce-Effect of, on common property of spouses.
A wife divorced from her husband on the ground of her adultery forfeits for the benefit of the innocent spouse everything which,-according to the Common Law or by ante-nuptial contract or otherwise, would have been acquired by her out of his property.
Where D got judgment against L, the only child of A, deceased, who owned a certain land, and seized in execution a moiety of this land as the property of L, and K claimed it as the purchaser under a writ issued in another case against the administrator of A, whose wife N was divorced from A for adultery,-
Held, in an action brought by D against K to have an undivided half of the land declared liable to be sold in execution as the property of L the daughter of A and N, that all the property brought into community by A vested in him exclusively upon the dissolution of his marriage with N on the ground of her adultery, and that the land claimed by K passed absolutely to him by the sale in execution against A's adminis-trator.
THE plaintiff sued the defendant to have an undivided half-share of 31 kurunies of a land declared liable to be seized and sold in execution of a judgment entered in bis favour against one Lydia, the only daughter of W. A. Aberan, who was alleged to be originally the sole owner of the entire land.
The defendant claimed this land as his, by virtue of a Fiscal's conveyance, dated 7th March, 1900, granted to him as purchaser under a writ issued in another case against the administrator of the said Aberan's estate. It was alleged by the defendant that Aberan and his wife Nona were the parents of Lydia; that the marriage between her parents was dissolved on the ground of the adultery of Nona; that upon the dissolution of such marriage the property in dispute became Aberan's solely and exclusively; that the administrator of Aberan's estate was Jagodage Amaris, the husband of Lydia; and that both these persons as well as their judgment-creditor, the plaintiff, were estopped from denying that Aberan died possessed of the entire land, in as much as the administrator had inventorized it in the testamentary suit as belonging to Aberan's estate.
The District Judge gave judgment for plaintiff, holding that on the dissolution of Nona's marriage with Aberan on the ground of her adultery, her half vested in Aberan in trust for the child of the marriage, Lydia, the execution-debtor; that only half of the land could have been sold in execution against Aberan; and
that on Aberan's death in 1895 the other half held in trust by him vested in Lydia absolutely.
The defendant appealed. The case was argued on 3rd December, 1902.
Sampayo, K.C., for dependant, appellant.
Samarawickrama, for plaintiff, respondent.
Cur. adv. vult.
20th October, 1903. WENDT, J.-
This appeal raises an important question as to the effect of a divorce on the common property of the spouses. The question arises on the following facts:-Aberan and Nonohamy were married in 1870 in the community of property. Nonohamy, so far as appears, brought no property whateve into the community. The only issue of the marriage was a daughcer, Lydia. In 1876 Aberan acquired by purchase the land in question. In 1882, at the suit of Aberan, the District Court of Kandy dissolved the marriage on the ground of his wife's adultery. The decree contained no directions as to the property of the community. Aberan died intestate, possessed of the land, in 1895, and- letters of administration to his estate were granted to Ainaris, the husband of Lydia. In 1899, in execution of a decree against Amaris as such administrator passed upon a debt of Aberan's, the land was sold in execution and purchased by the defendant, who duly obtained the Fiscal's conveyance in March, 1900. In August, 1900, the present plaintif
