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KANDAPPA v. ARUPALAVANAM et al.
NLR35V105
1932 Present: Macdonell
C.J. and Dalton J.
KANDAPPA v. ARUPALAVANAM et al.
272-D. C. Jaffna, 26,459.
Thesawalamai-Voluntary
separation of spouses-Tediatetam-Property acquired by husband after
separation-Claim by wife-Ordinance No. 1 of 1911, ss. 21 and 22.
Where spouses, whose matrimonial rights are governed by the Thesawalamai,
entered into a deed of separation which contained the following provision, among
others:-"We further declare that of the lands belonging to either of us on this
date, prior to this date, or after this date, the lands that are in the name of
either of us shall remain the property of the person in whose name the property
is and that in the lands in the name of any one of us or in the lands that any
one of us may become entitled to, the other shall have no claim whatever on any
grounds whatsoever ",-
Held, that the wife had no claim on the property acquired by the husband after
the execution of the deed of separation.
APPEAL
from a judgment of the District Judge of Jaffna.
H. V. Perera (with him Tillanathan), for plaintiff, appellant.
N. E. Weerasooria (with him Gnanapragasam), for second defendant,
respondent.
November 10,1932. MACDONELL C.J.-
I have had the advantage of reading my brother Dalton's judgment and I concur in
it. But I would wish to state my own view of sections 21 and 22 of Ordinance No.
1 of 1911.
This land Ollaipulam may be taken to have become tediatetam when acquired by the
husband in 1919. He conveyed it on 2 D 4 to the plaintiff on May 15, 1920, a
conveyance, doubtless, which he had no right to make but this wronful act was
condoned, if the expression can be used, by his wife the second defendant in the
present action, by the settlement of August 16, 1922 (P 12) under which the
plaintiff in the present action was to convey Ollaipulam to her for Rs. 1.400;
she was a party to this settlement and after executing it could hardly be heard
to say that her husband had no right to make the conveyance 2 D 4 or that the
land Ollaipulam after the settlement P 12 was still tediatetam. How could it be
if she had agreed to buy it from the present plaintiff? In actual fact she did
not buy it but allowed her father to do so, a variation of the settlement P 12
to which clearly she consented. Then her father, since 1922 owner of Ollaipulam,
conveyed it to her husband on P 4 on January 5, 1925. Once back in her husband's
ownership, her case must be that it thereby again became tediatetam.
Section 21 of Ordinance No. 1 of 1911 says: " The following property shall be
known as the tediatetam of any husband or wife; (a) property acquired for
valuable consideration by either husband or wife during the subsistence of
marriage". Now this land was property acquired by the husband for valuable
consideration on P 4 of January 5, 1925, and the marriage subsisted then and
does still in the sense that it has not legally been dissolved, and if this
provision in section 21 stood alone, it would be difficult to say that this land
did not again become tediatetam immediately on its transfer to the husband on P
4. But section 21 must be read with section 22 which says this: -
" The tediatetam of each spouse shall be property common to the two spouses,
that is to say, although it is acquired by either spouse and retained in his or
her name, both shall be equally entitled thereto. Subject to the provisions of
the Tesawalamai relating to liability to be applied for payment or liquidation
of debts contracted by the spouses or either of them on the death intestate of
either spouse, one-half of this joint property shall remain the property of the
survivor and the other half shall vest in the heirs of the deceased; and on the
dissolution of a marriage or a separation a mensa et thoro, each spouse shall
take for his or her own separate use one half of the joint property aforesaid ".
This section treats dissolution
of the marriage
