Umaitai V. Thamotharampillai

Sept.14,1910   Present: Hutchinson C.J. and Middleton J.

UMAITAI v. THAMOTHARAMPILLAI.

98, D. C, Trincomalee, 217.

Marriage, in community of property-Donation between husband and wife after Ordinance No. 15 of 1876-Donation by husband of all his undivided half share to his wife-Wife takes all husband's interest.

Where a husband married in community of property donated to his wife, after the Matrimonial Rights Ordinance came into operation, " 'the exact half of all the specified community properties belonging to him (me), exclusive of the other half belonging to (my) his wife by law," it was-

Held, that the husband had conveyed to his wife all his interest in the community property, although his interest was inaccurately described as an undivided half.

" Where community of goods exists all property is joint property between husband and wife. As a partner can give all his interest in any of the partnership property to his co-partner, so a husband can, since the Ordinance of 1876, give to his wife married in community of property all his interest in any of the common property. The deed should be construed, if its language will allow of it, so as to have some effect; no effect can be given to it except by construing it as a gift of all the husband's interest; that was its obvious intention.

APPEAL from a judgment of the District Judge of Trincomalee.

The appellant is a nephew and one of the heirs of one Velauther Supper, who died intestate and without issue on December 29, 1904. The respondent, who is the widow of the intestate, obtained letters of administration to the estate of the deceased; she filed final account on August 19, 1909. The appellant filed objections to the accounts and prayed for a judicial settlement. The learned District Judge allowed some objections and disallowed others. This is an appeal against the disallowance of certain objections.

Sampayo, K.C., for appellant.-The husband had the right to make a gift under section 13 of Ordinance No. 15 of 1876. He had only made a gift of one-half the property of the community. The other half, therefore, remains in. the community. The husband had, after the donation, still power to deal with the other half; a creditor could have seized a half against the husband even after the donation.

[Chief Justice.-Could not the husband have given all his interests to his wife?] He did not give all his interests to his wife; he may have had the intention, but he did not do so. He expressly says in the deed that he is not dealing with one half share of the properties. [Middleton J.-By the terms of his deed the husband seems to have repudiated his right in favour of his wife. By a mere declaration of a mistaken view of the law in a deed a man does not cease to be the owner.

Van Langenberg (with him Tambyah), for the respondents.-The deed would operate as an estoppel as against the husband's heir, the appellant. Where parties are married in community half the property vests in the husband and half in the wife; the husband has, all the same, a right of disposal over the whole. The husband, after the gift, may have had only a right to dispose of the other half; but he did not exercise the right. The intention of the husband is quite apparent from the terms of the deed. Counsel cited 1 Nathan 394, 397, 404.

Sampayo, K.C., in reply.-There is no estoppel here; the deed could not be pleaded as an estoppel under section 115 of the Evidence Ordinance or under any other law. The community property is common property of both spouses; only on the dissolution of marriage would half the property vest in the surviving spouse. Even if the other half belongs to the wife, it is still in the community; it is as if she had purchased it subsequent to the gift. Counsel cited 2 Walter Pereira's Laws of Ceylon, 174.

Cur. adv. vult.

September 14, 1910. Hutchinson C.J.-

His Lordship, after discussing other points raised by appellant's couns

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