Iya Mattayer V. Kanapathipillai

1928 Present: Dalton and Lyall Grant JJ.

IYA MATTAYER v. KANAPATHIPILLAI et al.

307-D. C. Jaffna, 19,172.

Thesawalamai-Acquired property-Husband's right to transfer tediatetam property-Vindication by heirs of their interests.

Under the Thesawalamai a married man hag no right to give away more than half the property acquired by him during marriage.

Parasathy Amman v. Setuplle 1[(1872) 3 N. L. R. 271.] followed.

Seelachchy v. Visuvanathan. Chetty 2[(1922) 23 N. L. R. 97.]explained.

THE plaintiffs sued the 1st defendant, husband of one Ponnamma, deceased, and the 2nd defendant (a transferee from 1st defendant) for declaration of title to half share of certain lands, which formed part of the acquired property of Ponnamma and to which they were entitled as her heirs. In the alternative the plaintiffs also claimed compensation from the 1st defendant for the value of the lands. The learned District Judge held that the transfer by the 1st defendant was without consideration and fraudulent. On appeal it was argued that there was a misjoinder of parties and causes of action, that, the order made in the testamentary case in an application for judicial settlement of the estate of Ponnamma was rex judicata, and that under the Thesawalamai the husband had a right to dispose of the whole of the acquired property or tediatetam and that the remedy of the wife's heirs was limited to a claim for compensation.

James Joseph, for 1st and 2nd defendants, appellants.-There is a misjoinder of parties and causes of action. The action is for the recovery of property and no other claim can be joined. Section

35 of the Code bars this, see Kangasabapathy v. Kanagatabai.1 The order in the testamentary case is res judicata. In the application for judicial settlement by the plaintiffs the title of these every properties was raised. The application was dismissed, and the plaintiffs cannot be permitted to raise the question of title again. Under the Thesawalamai the husband has an absolute right to sell or donate the whole of the tediatetam. It has been so held by a Divisional Bench of Three Judges in Seelachchy v. Visuvanathan Chetty (supra). This decision was later followed in Tankamuttu v. Kanapathipillai.2 The heirs of the wife have only a claim for compensation. This rule has been well established by the Thesawalamai and is not affected by section 22 of the Jaffna Matrimonial Bights Ordinance, No. 1 of 1911,

Croos Da Brera (with him Rajakarier) for plaintiffs, respondents.-The action was to have a deed set aside on the ground of fraud, so the transferor was a necessary party (Bronchi Appu v. Siyadoris Appu,3 Gopalsamy v. Ramasamy Pulle 4). Both the claims are connected and are based on a joint fraud. In any event the defendants failed to appeal from the order granting leave. They cannot be heard now. The order in the testamentary case is not res judicata. It may bar a subsequent application for judicial settlement but cannot prevent a substantive action for declaration of title. The question of fraudulent alienation was not raised there nor had the Court jurisdiction to try it. The 2nd defendant was not a party to the application for judicial settlement. It is not therefore open to him to plead res judicata. His title was acquired prior to the order. A person is privy in estate for purposes of res judicata if his title is obtained subsequent to the decree. (Arumugam v. Tampa's,5 13 Halsbury's Laws of England 343.)

Seelachchy v. Visuvanathan Chetty (supra) cannot be considered a judgment of the Full Court. Bertram C.J.'s judgment is based on the ground that the defendant was a bona fide purchaser from the donee. De Sampayo J. was of opinion that the husband had the right to gift the entirety of the property. Garvin J. dissented and held that the husband had a right to gift only half. Tankamuttu v. Kanapathipillai (supra) mistakenly says that Seelachchy

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