Seenivasagam V. Vaithylingam

1944 Present: Hearne and Soertsz JJ.

SEENIVASAGAM, Appellant, and VAITHYLINGAM, Respondent.

34-D. C, Point Pedro, 1,653.

Thesawalamai-Donation of Thediathetam property by husband-Conveyance by wife of her share after death of husband-Conflict of title.

Under the Thesawalamai the husband is not entitled to donate more than half the thediathetam property.

Where the husband donates the entire property and the donee retains the property, and where, after the death of the. husband, wife gives a transfer of her share to another the conveyance is good as against the donee from the husband.

APPEAL from a judgment of the District Judge of Point Pedro. The facts appear from the argument.

N. Nadarajah, K.C. (with him M. M. K. Subramaniam and V. K. Kandaswamy), for the defendant, appellant. -One S. died in February 1941, leaving three sons, namely, the plaintiff, the defendant and another, and a daughter who had been given in marriage. By deed D 1 of 1938 he had transferred to the defendant all the properties which had been acquired during the subsistence of his marriage. The trial Judge has found that the transfer was by way of donation. After the death of the husband the wife gave her half share of the same properties to the plaintiff who now claims title to it in this action.

The point at issue is whether a husband governed by the Thesawalamai can donate the entirety of the thediathetam property without the consent of the wife. It is settled law that he can mortgage or sell the entirety- Seelachchy v. Visuvanathan Chetty [1 11922) 23 N. L. R. 97.]. He can also give it by way of dowry to his daughters. The question, however, whether he can donate more than his half share of the thediathetam is left in doubt. It was held in Parasathy Ammah et al. v. Setupulle [2 (1872) 3 N. L. R. 271] that he could not do so. But that case was later considered in Seelachchy v. Visuvanathan Chetty (supra) where Bertram C.J. and de Sampayo J. were inclined to take the view that such a donation is not ipso facto void. See also Tankamuttu v. Kanapathipillai [3 (1923) 25 N. L. R. 153.]. In lya Mattayar v. Kanapathipillai et al.[4 (1928) 29 N. L. R. 301.] the dissenting view of Garvin J. in Seelachchy v. Visuvanathan Chetty was adopted. Other cases which have a bearing on the point are Sangarapillai v. Devaraja Mudaliyar et al. [ 5 (1936) 38 N. L. R. 1.] and Avichy Chettiar v. Rasamma [6 (1933) 35 N. L. R. 313.]. It is submitted that there is no difference in principle between the right to mortgage or sell and the right to donate. The decision of four Judges in Sangarapillai v. Devaraja Mudaliyar et al. (supra) removes the foundation of the view of Garvin J. in Seelachchy v. Visuvanathan Chetty (supra).

When the wife's share of thediathetam has been transferred by the husband, the wife or any one claiming through her, cannot follow the property against the alienee, and for only remedy, if any, is to claim compensation from the estate of the husband. This view which is

definitely expressed by de Sampayo J. in Seelachchy v. Visuvanathan Chetty (supra) and Tankamuttu v. Kanapathipillai (supra) finds support in the provision of the law in the second half of section 5 of Part IV. of the Thesawalamai Regulation (Cap: 51).

On a question where the Thesawalamai is silent the Roman-Dutch law will apply-Puthathamby et al. v. Mailvakanam et al. [1(1897) 3 N. L. R. 42.]. The Thesawalamai is silent as to the right of the husband to donate more than half of the thediathetam. Under the Roman-Dutch law donations, though excessive and immoderate, made by .the husband to third parties will hold good against the wife unless there has been clear fraud on the part of the husband-Nathan's The Common Law of S. Africa (1904 ed.), Vol. I, p. 227; Weerasooriya et al. v. Weerasooriya et al. [2(1910) 13 N. L. R. 376.]. No fraud has bee proved in the present case.

H. W. Thambiah, for the plaintif

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