Sampasivam V. Manikkam Et Al.

Present : Schneider A.J.

SAMPASIVAM v. MANIKKAM et al.

25-C. R. Jaffna,, 14,033.

Tesawalamai-Sight of husband to donate property acquired during marriage.

A husband can give a donation of only one-half of the property acquired by him during marriage.

K mortgaged a piece of land acquired during his marriage to the second defendant, and subsequently executed a secondary mortgage of the land in favour of the plaintiff. K then donated it to his son, the first defendant. The plaintiff after the death of K sued the first defendant and seized and sold the land, and the proceeds wore deposited in Court. The second defendant (primary mortgagee) applied to draw the balance in Court after satisfying plaintiff's writ. The claimants, who disputed the right of K to donate more than half the land to first defendant, objected,

Held, that the primary mortgagee was not entitled to draw the balance in Court.

THE facts appear from the judgment of the District Judge (G. W. Woodhouse, Esq.), and the Supreme Court.

After satisfaction of the decree in this case (which is one in favour of the secondary mortgagee against the mortgagor) by the seizure and sale of the land mortgaged, there is a balance over, which is deposited to the credit of this case.

The question is whether the money should be drawn by the mortgagor or the primary mortgagee) or certain parties who claim right by the operation of the rules of the Tesawalamai to a half share of the land sold.

It should be observed hero that it is " the right,, title, and interest "of the mortgagor that has been sold under the plaintiffs writ, and the amount realized is Rs. 460.

It is admitted by Mr. Niles, on behalf of his clients who claim a share of the land, that the mortgagor had a right to mortgage the entire land. His clients' wish to forego their rights to a share of the land and draw the surplus in deposit. But I am satisfied they cannot do so until all the mortgages on the land have been paid. They would have, therefore, to come in after the otti holder, and possibly after the mortgagor. I do not agree that the sum realized by the sale represents the true value of the entire land.

As regards Mr. Tambyah's client, the otti holder, he has, in my opinion, the first right to any surplus that remains over after the secondary mortgage is paid off.

The decree is wrongly entered in the case. Second defendant was made defendant, not as debtor or., the secondary mortgage, but as otti holder, who should have notice Plaintiffs proctor will take steps to see that the decree is amended.) Mr. Tambyah says that at the time of

the sale by the Fiscals his clients writ was in the Fiscal's hands, and that ' the Fiscal's officer, who sold, made people at the sale understand that he was selling under both writs. But we can only go by the report of the Fiscals that the sale was under this plaintiff's writ. It may be that the second defendant's writs was in the hands of the Fiscal, and this officer simply informed purchasers that there was second defendant's writ in his hands. It amounts simply to notice that the land was encumbered with an otti.

The second defendant's writ should now be executed and the land sold, any balance over should come out of the surplus in deposit in this case. Anything over should go to the mortgagor,"

The application of Mr. Niles clients, who really have no status in this case, is dismissed with the costs of the first defendant. The money will remain in deposit until Mr. Tambyah's client has discussed the mortgaged property. If the full amount of that decree is recovered by the sale, the plaintiff in this case is at liberty to draw the amount in deposit, otherwise it will go in liquidation of the otti holder's decree, and any balance over may be drawn by the mortgagor.

I make no order as to costs between the first and second defendants.

The claimants appealed.

Arulanandan (with him Joseph), for

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