Shanmugam Nagaiah and Another v Sivakolunthu Kumarasamy

• Judge: Chua F A J
• Judgment Date: 29 October 1985
• Neutral Citation: [1985] SGHC 34
• Citation: [1985] SGHC 34
• Defendant Counsel: Jacob Chacko (Jacob Chacko & Associates),V Ramakrishnan (V Ramakrishnan & Co)
• Published date: 19 September 2003
• Plaintiff Counsel: David Gerald and James Masih (David Gerald & Partners)
• Date: 29 October 1985
• Docket Number: Originating Summons No 673 of 1984
• Court: High Court (Singapore)
• Subject Matter: Interest in land,Division,Joint tenancy,Whether joint tenancy severed,Order of court that matrimonial property be sold and proceeds be equally divided,Land,Death of husband before sale made,Matrimonial assets,Effect,Order of court that matrimonial property be sold and proceeds equally divided between husband and wife,Whether order could be varied,Family Law

This is an application by way of originating summons by Shanmugam Nagaiah and Arul Anandan (plaintiffs), the administrators of the estate of KT Arasu Karthigasu Thirunavukarasu (KT Arasu). By this originating summons the plaintiffs seek the declarations of the court that:

(1) the property namely Lot 549, MK XX in the District of South Seletar, Singapore and known as Nos 41/41A, Jalan Tari Serimpi, Singapore (hereinafter known as the said property) was prior to the Order of Court dated 5 October 1983 held by the defendant herein and the said KT Arasu Karthigasu Thirunavukarasu, etc etc, deceased before his death, as joint tenants. The said joint tenancy was severed by virtue of the said Order of Court made by the Honourable Mr Justice FA Chua in the High Court and dated 5 October 1983;

(2) the defendant and the administrators of the Estate of KT Arasu Karthigasu Thirunakarasu etc etc now have an equal share in the said property and hold the said property as tenants-in-common;

(3) the said property be sold by the plaintiffs within six months of the Order to be made herein and the Proceeds thereof be equally divided between the Plaintiffs and the defendant;

(4) half the proceeds of the rentals received from the letting of the said property since 1 June 1984 be paid over to the plaintiffs;

(5) the defendant do pay the plaintiffs the cost of his application.

KT Arasu and the defendant, Sivakolunthu Kumarasamy, were married in 1953. In 1982 the defendant petitioned for divorce (Divorce Petition No 334 of 1982) on the ground that the marriage had broken down irretrievably in that the parties had lived apart for a continuous period of at least four years immediately preceding the presentation of the petition. In July 1982 the defendant obtained a decree nisi of divorce. In her petition the defendant also prayed for an order for a just division of the matrimonial property known as Nos 41 and 41A, Jalan Tari Serimpi, Singapore (the said property). The said property was purchased in 1971 and conveyed to the husband and wife as joint tenants. By an order of court dated 5 October 1983, it was ordered that the said property be sold within six months of the order and the proceeds of sale be equally divided between the husband and wife and that the husband pay to the wife maintenance of $1 per month. A few days after the said order was made KT Arasu poured kerosene over himself and set himself alight. He was taken to hospital where he died on 15 October 1983.

Before his death KT Arasu had executed a will in which he bequeathed all his property real and personal whatsoever and wheresoever situate to the Ramakrishna Mission Boys` Home.

The defendant now claims that she is entitled to the whole of the said property on the ground that she is the sole survivor of the joint tenancy formerly held by herself and Arasu. The plaintiffs have tried to persuade the defendant to have the said property sold and the proceeds to be equally divided but the defendant insists that she is entitled to the whole of the said property.

The plaintiffs are anxious to execute their duty as trustees and executors and now seek the declarations prayed for in the originating summons.

The contention of the plaintiffs is that the joint tenancy which subsisted between the husband and wife was severed in the lifetime of the husband. The defendant on the other hand submits that there had no severance. Alternatively, if there had been a severance the order of 5 October 1983 should be varied and an order be made that the said property be sold and that 75% of the proceeds of sale be paid to the defendant, the reason being that the defendant had made a bigger contribution towards the purchase of the said property; that she had incurred debts amounting to $45,000 for supporting the family; and that the husband had not made a full disclosure of his assets as he had $123,000 savings.

The question is, whether the beneficial joint tenancy was ever severed while KT Arasu was alive.

There are a number of ways by which a joint tenancy may be severed. In Williams v Hensman 70 ER 862 Sir W Page Wood VC in the course of his judgment said (p 867):

A joint tenancy may be severed in three ways: in the first place, an act of any one of the persons interested operating upon his own share may create a severance as to that share. The right of each joint tenant is a right by survivorship only in the event of no severance having taken place of the share which is claimed under the jus accrescendi.

Each one is at liberty to dispose of his own interest in such manner as to sever it from the joint fund - losing, of course, at the same time, his own right of survivorship. Secondly, a joint tenancy may be severed by mutual agreement. And, in the third place, there may be a severance by any course...