Velupillai Et Al V. Manomany

1951 Present: Swan J. and de Silva J.

VELUPILLAI et al., Appellants, and MANOMANY, Respondent

S. C. 4.3-D. C. Point Pedro, 2,751

Thesavalamai-Spouses living in separation-Thediatheddam acquired by one spouse- Right of such spouse to entirety of it-Jaffna Matrimonial Rights and Inheritance Ordinance.

Where a wife who was subject to the Thesavalamai eloped from her husband and the latter acquired certain immovable property with his own money during the period of separation-

Held, that a spouse is entitled to the entirety of thediatheddam property acquired by such spouse at a time when the spouses were living in separation. It is within the power of such spouse to deal with the entirety of such property to the exclusion of the other.

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

C. Thiagalingam, K.C., with W. D. Thamotheram, for the defendants appellants.

V. Arulambalam, for the plaintiff respondent.

Cur. adv. vult.

May 4, 1951. DE SILVA J.-

This is an action rei vindicatio. The plaintiff in this suit claims title to a half share of the land described in the schedule to the plaint and damages. The defendants who are husband and wife deny her title to any share of the premises and claim the entirety of the land for themselves. The learned District Judge who tried the case entered judgment for the plaintiff as prayed for, but without damages. The defendants

appeal therefrom. The point that comes up for determination is one that is of some importance under the law of Tesawalami by which the parties to the suit are governed. Put shortly, the chief point in issue is whether or not a spouse is entitled to the entirety of tediatetam property acquired by such spouse at a time when the spouses were living in separation and whether or not it is within the power of such spouse to deal with the entirety of such property to the exclusion of the other.

No difficulty arises where the general principles apply, for they have been considered in the various judgments of this Court. The facts of this case which are admitted are as follows:-One Sundarampillai married the plaintiff before the 17th July, 1911, that is the date on which the Matrimonial Rights and Inheritance Ordinance (Jaffna) came into operation. In fact it was admitted by Counsel for the parties that they were married in the year 1903. The plaintiff eloped with one Gunasekara on the 6th November, 1912, with whom she left for Malaya where she remained till she returned to Ceylon on the 4th March, 1931. She went through a form of marriage with Gunasekara on the 5th August, 1927 (vide Marriage Certificate filed marked D 5). In this marriage certificate the plaintiff was described as a spinster and Gunasekara as a bachelor. This form of marriage appears to have been gone through by these two persons at Matale in Ceylon. According to her evidence given in the District Court, Jaffna, in case No. 7,213, D4, the plaintiff, since she eloped with Gunasekara to Malaya in 1912, had come back to Ceylon in 1920 and 1927 with Gunasekara, and finally in 1931, alone. It was in 1927, on her second visit to Ceylon after the elopement, that she went through this form of marriage with Gunasekara. According to her evidence given in the same case Gunasekara died on the 22nd May, 1929, in Malaya. Sunderampillai, the legally married husband of the plaintiff, whom she deserted in 1912, would appear to have taken a woman unto himself named Sivapathi after his wife had left the Island. The second defendant in her evidence in this case has stated that so far as she was aware Sunderampillai was married to Sivapathi. A child named Savundarammah was born of this union. Sunderampillai upon deed No. 6,179 of the 26th May, 1926, P1, purchased the entirety of this property, a half share of which is now claimed by the plaintiff being the share that she would be entitled to as Sunderampillai's wife. The marriage betw

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