1935   Present: Poyser and Koch JJ.

AMBALAVANAR v. KURUNATHAN.

 125-D. C. Jaffna, 4,808.

Thesawalamai-Mortgage of tediatetam property by husband-Mortgage suit after death of wife-Heirs of wife not made parties-Decree not binding -Jaffna Matrimonial Rights and Inheritance Ordinance, No. 1 of 1911.

 Where, after the Jaffna Matrimonial Rights and Inheritance Ordinance, No. 1 of 1911, a husband mortgaged tediatetam property and the mortgagee, after the death of the wife, put the bond in suit, without making the minor heirs of the wife, who were in possession, parties to the action,-

Held, that the heirs were not bound by the mortgage decree.

APPEAL from a judgment of the District Judge of Jaffna.

H. V. Perera (with him T. Nadarajah), for defendants, appellants.

L. A. Rajapakse (with him D. J. R. Gunawardene), for plaintiff,, respondent.

September 10, 1935. KOCH J.-

This appeal raises a somewhat interesting point under the law of Thesawalamai.

The facts, which are admitted, briefly are that one Nagamuttu was married to a woman called Sinnapillai, and that during the subsistence of the marriage Nagamuttu acquired the property in question under deed No. 149 of 1924. Sinnapillai died in April, 1926, but before her demise Nagamuttu mortgaged the entirety of this property in April, 1925. The mortgagee on May 18, 1927, put his bond in suit against the mortgagor, and having obtained his decree had the property sold. The purchaser is the plaintiff in this action. The claim of the plaintiff, however, is confined to 3 lachams and 13 1/4 kulies, as he had sold away the balance interests to a third party. The action is one rei vindicatio and the first four defendants are the minor children of the deceased Sinnapillai. The fifth defendant is their guardian ad litem. These minors have been in possession of an undivided half share of this land ever since their mother's death. They were not joined as parties in possession in the mortgage action. It is admitted that the law of Thesawalamai applies.

Nine issues were framed, the majority involving questions of law. It was agreed that the issues of law be first decided and the issues of fact later, if necessary. The District Judge on the law held that the minor defendants who are the appellants were bound by the decree in the mortgage action and gave judgment for the plaintiff who is the respondent to this appeal.

Whatever doubt or confusion there may have been in the law of Thesawalamai up to the year 1910, regarding the precise legal position of the children of a deceased spouse in relation to a mortgage that had been effected during marriage by the surviving spouse of the entirety of property acquired by him during its subsistence, the law makes that position definite and certain after the coming into operation of Ordinance No. 1 of 1911. This Ordinance is an amendment to the matrimonial rights of Tamils governed by the Thesawalamai with regard to property and the law of inheritance. The relevant section is No. 22. That section lays down that the tediatetam (acquired property) of each spouse shall be property common to the two spouses, and although it is acquired by either spouse and retained in his or her own name, both shall be equally entitled thereto. It further provides that 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. Language cannot be clearer. All acts material to this action have taken place after 1911, and it is common ground that under Thesawalamai like the Roman-Dutch law the husband has the right during the lifetime of his

wife to mortgage property acquired during marriage even without the consent of his spouse. The mortgage referred to quo mortgage would therefore be valid and would bind the half share of the wife. What would happen, however, if before the mortgage bond