Annapillai V. Eswaralingam

1960 Present : K. D. de Silva, J., and H. N. G. Fernando, J.

ANNAPILLAI, Appellant, and ESWARALINGAM et al.,
Respondents

S. C. 471 - D. C. Point Pedro, 5,279/L

    Thesavalamai Tediatetam acquired before 1947-Dona,tion by husband of wife's share-Right of wife to sue in her own right-Pre-emption Ordinance, No. 59 of 1947-Jaffna Matrimonial Rights and Inheritance (Amendment) Ordinance, No. 58 of 1947.

A husband to whom the Thesavalamai applied purported to donate not only his own share but also his wife's half share of the Tediatetam before the date of operation of the Jaffna Matrimonial Rights and Inheritance (Amendment) Ordinance, No. 58 of 1947. Subsequently, in October 1955, the donee sold the property to the 3rd defendant.

Held, (i) that the donation was invalid as to the wife's share.

(ii) that the wife, by reason of the donation, became co-owner with the donee.

(iii) that the wife's legal relationship to the donee was such as to confer on her the right of pre-emption of the share held by the donee.

(iv) that the wife was entitled, in her own right, to maintain an action for preemption during the subsistence of her marriage with her husband. In such a case, the husband, if he chooses to remain inactive, may be joined as a defendant.

Held further, that the question whether the 3rd defendant had any knowledge or notice of the donee's right to a half-share was of no relevance.

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

S. J. V. Chelvanayakam, Q.C., with S. Sharvananda, for the plaintiff appellant.

H. W. Jayewardene, Q.C., with T. Arulanandan and L. C. Seneviratne, for the substituted defendants-respondents.

Cur. adv. vult.

July 18, 1960. H. N. G. FERNANDO, J.

The plaintiff and the 4th defendant are wife and husband, and persons to. whom the Tesawalamai applies. The action is one for preemption of a share in a certain land which has been the subject of three transactions :-(1) By the deed 3D2 of 19th October, 1943, the 4th defendant .obtained a transfer in his name of a land described as being 10 ¼ lms. v. c. in extent from one Vyramuttu Nagalingam and his wife, Alankaran. The description in the schedule to the deed indicates that the 10 ¼ lms. of land transferred was part of a larger divided extent of 16 1ms. and 9 kulies. (2) On 21st June, 1944, the 4th defendant joined with

Vyramuttu Nagalingam and Alankaran in executing the deed 3Dl, by which those three persons donated to the 2nd defendant an extent of about 14t Ims. comprising the 10 ¼ Ims. dealt with by 3D2 and a further extent which had formed part of the larger divided extent of 16 Ims. and 9 kulies. (3) On 26th October, 1955, the 2nd defendant (joining with her husband the 1st defendant) by 3D3 sold to the 3rd defendant either the whole or a part of the corpus which the 2nd defendant had received on 3Dl, but clearly including' the l0 ¼ 1ms. originally transferred to the 4th defendant by 3D2 of 1943.

The case for the plaintiff has been that the 10 1/4 Ims. transferred to her husband by 3D2 of 1943 was property acquired by the husband during the subsistence of their marriage, and therefore tediatetam, and that accordingly the plaintiff became entitled to a half-share or 5 1/8 1ms. of the land, and her husband the 4th defendant to the remaining 5 1/8 Ims. On the assumption that the husband had no power to donate his wife's share and that the plaintiff remains entitled to her share, the plaintiff claims that the donation 3Dl was only effective to convey to the 2nd defendant the husband's half-share, and that, since the entire extent donated by 3D1 remained undivided, the plaintiff and the 2nd defendant had become co-owners of that extent. On this basis the plaintiff claims that she was entitled to notice of the prospective sale of the 2nd defendant's share, and for default of such notice that she is now entitled to pre-empt the share to which the 2nd defendant

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