Shanmugam Nagaiah and Another v Sivakolunthu Kumarasamy

JurisdictionSingapore
Judgment Date15 December 1987
Date15 December 1987
Docket NumberCivil Appeal No 102 of 1985
CourtCourt of Appeal (Singapore)
Sivakolunthu Kumarasamy
Plaintiff
and
Shanmugam Nagaiah and another
Defendant

[1987] SGCA 21

Lai Kew Chai J

,

L P Thean J

and

Chan Sek Keong JC

Civil Appeal No 102 of 1985

Court of Appeal

Family Law–Matrimonial assets–Matrimonial home–Property held by husband and wife as joint tenants–Court order to sell matrimonial property and divide proceeds equally–Husband dying before implementation of order–Whether joint tenancy severed by court order–Whether court order enforceable after husband's death–Whether court order can be varied in absence of appeal–Section 106 (1) Women's Charter (Cap 353, 1985 Rev Ed)–Landlord and Tenant–Joint tenancy–Property held by husband and wife as joint tenants–Court order to sell matrimonial property and divide proceeds equally–Husband dying before implementation of order–Whether joint tenancy severed by court order–Whether unilateral declaration of intention to sever communicated to other joint tenant sufficient to sever joint tenancy

On 22 March 1982, the appellant (“the defendant”) filed a petition of divorce against her husband, K T Arasu. They had owned 41/41A Jalan Tari Serimpi (“the said property”) which was registered in their names as joint tenants. On 30 June 1982, the court granted a decree nisi to the defendant. The defendant then sought a division of the said property, in which she never lived or treated as the matrimonial home. On 5 October 1983, the High Court made an order (“the settlement order”) for the sale of the said property and division of the proceeds of sale between the parties equally. However, on 15 October 1983, before this order could be implemented, K T Arasu died. Prior to this, K T Arasu had made a will under which he bequeathed all his property to the Ramakrishna Mission Boys' Home.

After his death, the respondents (“the plaintiffs”) took out a grant of letters of administration to his estate with the will annexed. They sought the portion of the proceeds of sale ordered to be distributed to the estate under the settlement order. This, however could not be done as the defendant claimed that the settlement order had no effect upon the death of K T Arasu, and as a result she was entitled to the whole of the said property or the proceeds of sale by operation of the rule of survivorship. The administrators sought a declaration that the joint tenancy in the said property had been severed by the settlement order, an order that the said property be sold within six months and proceeds divided equally between the parties and an order that the defendant pay to the plaintiffs one-half of the rental proceeds received from the said property since 1 June 1984. The defendant resisted the action and sought a variation of the settlement order that she be granted 75% of the proceeds of sale on the ground that K T Arasu had earlier deceived the court into granting an equal division by failing to disclose that he had at the relevant time a cash deposit of $100,000 in a bank account.

The High Court gave judgment in favour of the plaintiffs and dismissed the defendant's claim for a variation of the settlement order on the ground that the court had no power to do so and that even if it did, the non-disclosure of the $100,000 cash deposit would not have affected the settlement order. The defendant appealed against the decision.

Held, dismissing the appeal:

(1) It was not the law in Singapore that a unilateral declaration of intention to sever a joint tenancy, when communicated to the other joint tenant, has the effect of severing it into a tenancy in common. While that may be the law in England by reason of s 36 (2) of the Law of Property Act 1925 (c 20) (UK), the law in Singapore was the law prevailing in England before 1925: at [14].

(2) For historical and policy considerations, the expression “decree of divorce” in s 106 (1) of the Women's Charter (Cap 353, 1970 Rev Ed) (“the Women's Charter”) must be construed to include a decree nisi. As the provision empowered the courts to make ancillary orders after the decree nisi has been pronounced, the settlement order was validly made. The grant of a decree nisi was a recognition by the court that the marriage was at an end with the consequence that there was no longer any matrimonial home, no consortium vitae and no right on either side to conjugal rights after the grant. It would therefore be in the interest of the parties and they would want the divorce court to settle their domestic affairs irrevocably, particularly the settlement of their matrimonial assets: at [25].

(3) The divorce proceedings did not automatically abate upon the death of a party to the marriage. The question was whether the court had jurisdiction to enforce the settlement order which at the death of K T Arasu had not been carried out. There was still a res before the court and the settlement order, which was not dependent on K T Arasu being alive, could be carried into effect: at [32] and [33].

(4) The settlement order was enforceable like any other court order, and continued to be enforceable after the death of a party to the divorce suit except where the order, by its very nature, ceased to be enforceable after death such as a maintenance or custody order: at [35].

(5) As the court, in making the settlement order in the form it did, intended to divide the said property between the parties without any limitation as to the length of life of either of them, the order had the effect of severing the joint tenancy in the said property. All orders of court made in exercise of its powers to make partition orders have such effect even where the order has not been carried into effect before the death of a party to the proceedings: at [38] and [39].

(6) A settlement order takes effect like any other court order and may only be varied upon appeal. In the absence of any such appeal against the order, the court had no power to vary the settlement order as there was no provision in the Women's Charter that empowered it to do so: at [42].

Barder v Caluori [1988] AC 20 (refd)

Burgess v Rawnsley [1975] Ch 429; [1975] 3 All ER 142 (refd)

Clarke v Clarke & Lindsay [1911] P 186 (refd)

Draper's Conveyance, In re [1969] 1 Ch 486; [1967] 3 All ER 853 (refd)

Fender v St John-Mildmay [1936] 1 KB 111, CA (refd)

Fender v St John-Mildmay [1938] AC 1, HL (refd)

Gilbert v Gilbert & Boucher [1928] P 1 (distd)

Harris v Goddard [1983] 1 WLR 1203 (refd)

Hawksley v May [1956] 1 QB 304; [1955] 3 All ER 353 (refd)

Jack Chia-MPH Ltd v Malayan Credit Ltd [1983-1984] SLR (R) 420; [1984-1985] SLR 127 (folld)

Khoo Seoke Haing v Cheah Khay Pin (1885) 4 Ky 74 (folld)

Nielson-Jones v Fedden [1975] Ch 222; [1974] 3 All ER 38 (refd)

Public Trustee v Grivas [1974] 2 NSWLR 317 (refd)

Purse v Purse [1981] P 143 (refd)

Shanmugam Nagaiah v Sivakolunthu Kumarasamy (Trustees of Ramakrishna Mission Boys' Home, interested party) [1985-1986] SLR (R) 408; [1984-1985] SLR 791 (refd)

Sugden v Sugden [1957] P 120 (refd)

Tan Chew Hoe Neo v Chee Swee Cheng (1928) LR 56 IA 112; [1929] AIR PC 72;2 BLSS 504 (refd)

Williams v Hensman (1861) 1 J & H 546; 70 ER 862 (refd)

Civil Law Act (Cap 43,1985 Rev Ed)s 7

Women's Charter (Cap 353,1985 Rev Ed)s 106 (1) (consd);ss 55, 137 (1),Pt IX

Law of Property Act 1925 (c 20) (UK)ss 36 (2), 40

Law Reform (Miscellaneous Provisions) Act 1934 (c 41) (UK)s 1 (1)

Married Women's Property Act1882 (c 75) (UK)s 17

Matrimonial Causes Act 1859 (c 61) (UK)s 5

Matrimonial Causes Act 1860 (c 144) (UK)

Matrimonial Causes Act 1866 (c 32) (UK)

Matrimonial Causes Act (1959-1966) (Cth)s 86 (1)

Supreme Court of Judicature (Consolidation) Act 1925 (c 49) (UK) s 192

Cheong Yuen Hee and Jacob Chacko (Jacob Chacko & Associates) for the appellant

James Bahadur Masih (James & Co) for the respondents.

Judgment reserved.

Chan Sek Keong JC

(delivering the judgment of the court):

1 This appeal has come before us in the following circumstances.

2 The defendant (who is the appellant in this appeal) and K T Arasu (whose personal representatives are the respondents here) were married on 25 January 1953. The marriage eventually turned out to be an unhappy one. On 22 March 1982, the defendant filed a petition for divorce in Divorce Petition No 334 of 1982 on the ground that the parties had lived apart since December 1976. At that time, the couple had four children, aged 27, 26, 23 and 21. They owned a property known as 41/41A Jalan Tari Serimpi, Singapore (hereinafter called “the said property”) which they had purchased in 1971 and had it registered in their names as joint tenants. On 30 June 1982, the court granted a decree nisi to the defendant.

3 After the decree nisi was granted, the defendant sought a division of the said property. The affidavits filed by each party in support of their respective contentions disclosed disputed facts among which were the proportion of the purchase consideration contributed by each and the purpose of the parties in buying the said property. The defendant had never, owing to domestic conflicts, agreed to nor did she ever live in the said property which had been, in consequence, let out from time to time. She did not regard it as the matrimonial home.

4 After considering the affidavit evidence and hearing counsel for the parties, F A Chua J on 5 October 1983 made an order (hereinafter called “the settlement order”) for the sale of the said property and for the division of the proceeds of sale between the parties equally. Before this order could be implemented, K T Arasu died on 15 October 1983 following upon an act of self-immolation three days before. This was a tragic end to an unhappy marriage.

...

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