Naganathar, C. V. Velautham, S.

1953 Present: Gratiaen J. and Weerasooriya J.

C. NAGANATHAR, Appellant, and S. VELAUTHAM et al.,
Respondents

S. C. 214-D. C. Point Pedro, 3,712
 

Thesavalamai-Wife's separate immovable property-Husband's position in regard to such property-Quia timet action-Jurisdiction of Court to enter a declaratory decree-Jaffna Matrimonial Rights and Inheritance Ordinance (Cap 48.), ss. 6, 19 (b), 20 (1)-Amending Ordinance No. 58 of 1947.

A Court has jurisdiction to grant relief in the form of a declaratory decree in quia timet proceedings when such a decree would accomplish the ends of precautionary justice for the protection even of future or contingent rights. The Court must, however, be satisfied that the declaratory decree asked for in any particular action relates to a concrete and genuine dispute and would, if passed, serve some real purpose in the event of future litigation between the same parties.

By a deed executed in July 1944, a wife, to whom the Thesavalamai applied, purported, during the subsistence of her marriage but without her husband's consent, to convey her separate immovable property. Earlier, in November, 1943, the husband had, in the exercise of his right to manage his wife's property, informally leased her interests to certain parties.

Held, (i) that, under section 6 of the Jaffna Matrimonial Rights and Inheritance Ordinance, the conveyance executed by the wife without her husband's consent was void ab initio.

(ii) that although the husband had no proprietary interest in the separate property of his wife, he had other present and contingent interests therein. He was entitled, in the circumstances, to institute action asking for a declaration that the conveyance which his wife had purported to execute was null and void.

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

 C. Renganathan, with V. Ratnasabapathy, for the plaintiff appellant.

H. W. Tambiah, with S. Sharvananda, for the 3rd and 4th defendants respondents.

Cur. adv. vult.

October 29, 1953. GRATIAEN J.-

The plaintiff and his wife Thangammah are persons to whom the Thesewalamai applies. Their marriage was solemnised according to Hindu rites in June 1939, and in March 1939 the plaintiff's wife received from her father by way of gift an interest in certain immovable properties including the lands to which this action relates. The effect of their marriage was that, although the properties remained her separate property, she was absolutely prohibited by the provisions of sec. 6 of the Jaffna

Matrimonial Rights and Inheritance Ordinance (Cap. 48) from alienating them inter vivos during the subsistence of the marriage without the consent of her husband. In addition, the future income of the property (at least until the date on which the amending Ordinance No. 58 of 1947 came into operation) became tediatetam common to both spouses by virtue of sec. 19 (b) and sec. 20 (1) of the Ordinance.

By a deed Dl dated 1st July 1944 Thangammah purported, during the subsistence of the marriage, but without the plaintiff's consent, to convey certain shares in the property to the 4th defendant. This alienation was clearly void ab initio-Chellapa v. Kumaraswamy1[(1915) 18 N. L. R. 435.] because " it was in contravention of her husband's right and could not be supported by the Tamil law".

The plaintiff instituted this action against the 1st, 2nd, 3rd and 4th defendants on the following basis : he claimed that, in the exercise of his right to manage his wife's property for their mutual benefit, he had on 1st November 1943-i.e., before the execution of Dl-informally leased her interest in the land in dispute to all four defendants at an agreed rental; that the defendants had since repudiated their obligations as lessees under him, and that the 4th defendant (as purported owner) and her husband the 3rd defendant (presumably as the manager of his wife's separate property) were wro

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