Avitchy Chettiar V. Rasamma

1933 Present: Garvin A.C.J., Dalton and Drieberg JJ.

AVITCHY CHETTIAR v. RASAMMA

240-D. C. Kurunegala, 13,636

Thesawalamai-Proprety acquired by wife out of her dowry-Is it Thediathetam -Jaffna Matrimonial Rights and Inheritance Ordinance, No. 1 of 1911, s. 21.

Under the Thesawalamai, property acquired by a wife during the subsistence of the marriage out of money which formed part of her separate estate, is Thediathetam property, within the meaning of section 21 of the Jaffna Matrimonial Rights and Inheritance Ordinance of 1911.

THIS was an action brought by the plaintiff under section 247 of the Civil Procedure Code to have certain premises declared liable to be seized and sold in execution of a decree obtained against the intestate estate of one V. C. Kanagasabai. The premises were claimed by Rasamma, the widow of the deceased, as being her separate property purchased by her upon a deed bearing No. 1,669 of November 3, 1924.

Kanagasabai and Rasamma were natives of Jaffna to whom the Thesawalamai applied and were married on September 10, 1919. It was found as a fact that the consideration for the transfer was paid by Rasamma out of money which formed part of her separate estate, viz., the cash dowry which was given to her by her parents. The learned District Judge held that the premises were not liable to be sold in execution of the husband's debts and dismissed the plaintiff's action.

H. V. Perera (with him Rajapakse), for plaintiff, appellant.-The land in this case was purchased in the name of the wife with her dowry money. The marriage was after 1911 and the Thesawalamai Ordinance, No. 1 of 1911, applies. That Ordinance amends the previous law. Sections 21 and 22 govern this case. This property comes under 21 (a), i.e., property acquired for valuable consideration during the subsistence of the marriage. The Thediathetam of each spouse is property common to both spouses. Older decisions before the new Ordinance say that money of either spouse which is earmarked and is converted into other property remains the property of the spouse to whom the money belonged and does not become Thediathetam (Jiveratnam v. Murugesu1[1 N. L. R. 211]. In Nalliah v. Ponnammah 2[22 N. L. R. 198.] it was held that the old law was not changed.

[DALTON J.-Do you suggest that the meaning of the word Thediathetam has been changed by this Ordinance?]

Yes. The term is defined in legal phraseology which has a very definite meaning (Thamotheram v. Nagalingam 3[31 N. L. R. 257.]). The definition is exhaustive. All that need be ascertained is when the property was acquired and whether it was for valuable consideration. It does not matter from where the consideration comes. One cannot limit it to valuable consideration which is itself thediathetam. As long as community of property subsists there will be no certainty with regard to title to property if one had to inquire with what money the property was purchased.

[DALTON J.-If a person has money before marriage and converts it into property during marriage he loses it?]

That is so. Even under the Marriage Ordinance the immovable property of the wife is hers while the movables belong to the husband. But if a wife during marriage sells her property the money will vest in the husband. Every acquisition must be out of the funds of one or other or both of the spouses. The character of such property will be the character of the fund with which it was acquired. If the character of the property acquired depends on the source of the consideration there would be no thediathetam at all. There is no common property at the time of marriage.

[DALTON J.-The thediathetam of the old law is defined in section 1.]

That does not correspond with the definition in section 21. Thediathetam there includes only profits arising out of property. Freedom of alienation is essential to property.

R. L. Pereira, K.C. (with him Soertsz, K.C., and

Click Here to Read the rest of this document