Sellappah V. Sinnadurai Et Al

1951 Present: Nagalingam J., Basnayake J. and Swan J.

SELLAPPAH, Appellant, and SINNADURAI et al., Respondents

S. C. 554-D. C, Point Pedro, 2,873

Thesavalamai-Jaffna Matrimonial Rights and Inheritance Ordinance (Cap. 48), ss. 6, 19 and 20-Thediatheddam-Retrospective operation of amending Ordinance, No. 58 of 1947-Interpretation Ordinance, (Cap. 2), s. 6 (2) and (3) (a).

Co-owners-Transfer, by a co-owner, of entirety of common property to stranger-Prescriptive possession by transferee-How computed.

Appeal-Case from District Court-Constitution of Appellate Court-Courts Ordinance (Cap. 6), ss. 38, 48 and 51.

Held (Basnayake J. dissenting) : (i) The amendment of sections 6 and 19 of the Jaffna Matrimonial Rights and Inheritance Ordinance (Cap. 48) by Ordinance No. 58 of 1947 has retrospective operation. The amending Ordinance was enacted in order to declare what the law always was and to restore the law as it stood before the decision in Avitchy Chettiar v. Rasamma (1933) 35 N. L. R. 313. Where, therefore, a woman, who married in 1917, purchased certain lands in 1918 with her dowry money during the subsistence of the marriage, such lands must be regarded as her separate property and not as thediatheddam.

(ii) Where one of several co-owners sells the entirety of the common property to a person who is a stranger and not a co-heir and who purchases it without any knowledge or belief that any other party is entitled to any interest in the property, the possession of the purchaser is not the possession of the co-owners. In such a case, Corea v. Iseris Appuhamy (1911) 15 N. L. R. 65 or Britto v. Muttunayagam (1918) 20 N. L. R. 327 is inapplicable, and the purchaser acquires title to the entire property after adverse possession for ten years.

(iii) Under section 38 of the Courts Ordinance, an appeal from a judgment of a District Court may be directed by the Chief Justice to be listed before three Judges if two Judges, after a preliminary hearing of the appeal, request the Chief Justice to make such direction.

APPEAL from a judgment of the District Court, Point Pedro.

This appeal was reserved for adjudication by a Bench of three Judges on a reference made by Dias S. P. J. and Swan J.

H. V. Perera, K.C., with H. W. Tambiah, C. Renganathan, T. Somasunderam and S. Sharvananda for the plaintiff-appellant.- The point that arises on this appeal is whether certain property claimed by the plaintiff is thediatheddam property. In September, 1917, plaintiff married third defendant, who, in March, 1918, during the subsistence of the marriage, acquired the property in dispute with her dowry money. The plaintiff thereafter went to Malaya, where he was employed, and remained there a considerable time. In December, 1923, the wife, who remained in Jaffna, made an application to the District Court of Jaffna for permission to sell her dowry property without the consent of her husband, on the ground that the husband had deserted her. The application was allowed and the third defendant purported to

convey by deed D 4 of 1924 the land in dispute to Rasamma. From Rasamma the lands devolved ultimately on the first and second defendants. The plaint in the present action was filed on February 14, 1947, and the answer of the first and second defendants was filed on June 27, 1947. On July 3, 1947, the Jaffna Matrimonial Rights and Inheritance (Amendment) Ordinance, No. 58 of 1947, was proclaimed. At the time of acquisition of the property in dispute Ordinance No. 1 of 1911 (Chap. 48) was in operation and under that Ordinance the property is " acquired" or thediatheddam property, notwithstanding the fact that the money was dowry money. Under the Ordinance of 1911 such property belonged equally to the two spouses. According to the phraseology of section 19 of the Ordinance of 1911, if property is acquired by the wife for valuable consideration during the subsistence of marri

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