NEW LAW REPORTS OE CEYLON.Marriage agreement between father of bride, bride, and bridegroom—Promise ojfather to pay cash to daughter tn the event of one of the stipulations notbeing carried out by father—Failure of the father to carry out thestipulation after marriage was solemnized—Right of husband to sue forthe money without his wife as a party or her consent—Ordinance No. lbof me, s. i9.
Where, in a marriage agreement between the- father of a ' bride, thebride, and the bridegroom, it was agreed that, in the event Of the fathernot carrying out one of the stipulations within a certain time – afterthe marriage, he should pay to the wife a certain sum of .money, .andhe failed to carry out the stipulation after the marriage,—
Held that, under section 19 of the Matrimonial. Rights Ordinance,1876, the husband was entitled to sue for and recover the money,without his wife's consent or making her a party to the case.
ff^ELE nature of the agreement, on the footing of which the
X present appeal arose, is fully set forth in 4 N. L. R. 348. Theissue as agreed between the parties was " whether under theterms of the marriage agreement the first defendant alone isentitled to sue the plaintiff in reconvention for its fulfilment.
After hearing the arguments and witnesses called, the Addi-tional District Judge entered judgment for plaintiff in theseterms: —
“ The first defendant insists on his counterclaim for Its. 8,000
even in spite of his wife, to whom the money was payable under
the agreement, on the ground that under the 10th clause of the
Matrimonial Bights Ordinance all movable property of a wife
vests absolutely in her husband. This is undoubtedly true, and a
wife’s choses in action form part of her personal'estate. If any
money became due to the wife under this agreement, her husband
could no doubt sue for ;t, but it is quite a different thing to 9ny
that he was also entitled to recover it- In determining this matter
we must look upon this agreement as a whole. Its main object
1-,—J. X. A 88216 (1 /47
BABAPULLE v. BAJABATNAM et al.
D. C., Colombo, 10,344.
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has been to prevent the husband from getting hold of any of hiswife’s property, and to say that the husband is entitled to converther realty into personalty, even in spite of her own wishes, wouldbe entirely contrary to the spirit of the agreement.
“ I feel bound to take an equitable view of the situation, and saythat under this agreement the wife can elect to have the land andnot the money, and that the husband cannot insist on claimingthe latter as a liquidated sum which became due to his wife outhe expiry of the six months.
" The very letters of the first defendant written in June, after theexpiry of six months, show that they were then not asking for themoney but the land, and the second defendant is even now willingto have the land. Unless the first defendant can show that his wifehas made no such election, I must decline to benefit him at theexpense of his wife. This he has not done, and the plaintiff’s evi-dence as to what his daughter really wants stands uncontradicted.
“ I am satisfied that the advance made on the note sued upon hadno connection whatever with the marriage agreement. It wasquite an independent transaction, and the first defendant is notentitled to set off against it anything which his wife was entitledto get under the agreement ”.
The first defendant appealed.
Walter Pereira (with him E. W. Jayawardena), for appellant.—The appellant did not plead a set off in this action, nor did hiswife, thb second defendant, become entitled, as assumed by theDistrict Judge, to anything on breach of the marriage agreement.The claim of the appellant is a claim in reconvention, and thesum of Bs. 8,000 that became due on the marriage agreement wasthe exclusive property of the appellant. By this agreement theplaintiff no doubt agreed to convey the land to the second defendant,and in default to pay her Bs. 8,000, but the moment the defaultwas made, the chose in action that resulted vested absolutely inthe appellant by force of section 1.9 of the Ordinance No. 15 of1876. That Ordinance defines movable property as property ofevery description except immovable property. Even under ourCommon Law a chose in action like the present is movable property(Censura Forensis, pt. /., bk. II., chap. I,, para. 4, and VanLeeuwen, vol. /., P- 145), and hence it is the property of thehusband, the appellant.
Allan Drieberg, for respondent.—The agreement of the plaintiffwas to pay the second defendant the Bs. 8,000. The seconddefendant does not claim the amount. The claim of the seconddefendant is- adverse to the interests of the first defendant. The
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evidence shows that the second defendant, after the expiration ofthe six months, requested the plaintiff not to convey to her theland until the first defendant paid the plaintiff the money due onthe note.
The District Judge rightly characterized this as a very pecu-liar case. The action -was on a promissory note for' Rs. 5,000brought by the plaintiff against his daughter and his daughter’shusband, who had made the note in his favour. The husbandclaimed in reconvention a sum of Rs. 8,000 as being due tohim in right of his wife under certain articles of agreementwhich were entered into by the plaintiff and the defendants incontemplation of the marriage of the two defendants. The agree-ment is a curious one in several respects. The intended husbandagreed that he would become a Roman Catholic within a certaintime, and like a more illustrious person, King Henry IV. ofFrance, who thought that Paris was well worth a mass, thisgentleman thought that the lady’s beaux yeux were well wortha change of faith. The father of the lady on his part agreed thatafter the marriage he would upon the joint request of the twospouses convey to his daughter certain property by way of dowry,and amongst the property agreed to be conveyed was a certaingarden and house in Barber street, Colombo, which was stated tobe of the value of Rs. 8,000, and it was provided that, if he shouldmake default then, he would pay to his daughter Rs. 8,000 in lieuof the garden and house. The marriage was celebrated, and thespouses duly requested the plaintiff to convey the house and pro-perty, but the plaintiff made default in complying with this request.
It is unnecessary to go into the reasons which actuated him indeclining to perform his part of the agreement. The husband, as Isaid before, made this claim in reconvention, and at the trial theplaintiff’s counsel desired to have this issue stated:whether
** under the terms .of the marriage agreement, the first' defendant" alone is entitled to sue the plaintiff in reconvention for its fulfil -“ ment ”. He submitted (as the District Judge records) that onlythe wife could claim the money, and that the right to claim nevervested in the husband; it would only vest in him under theMatrimonial Rights Ordinance when the Court would make adeclaration that.he was entitled to it. That issue was accordinglyagreed to between the parties and was formulated- by the DistrictJudge as the third issue.
It will be seen that this is a pure question of law upon theconstruction of the agreement, ’^t the trial it was argued by
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1M0, the counsel for the plaintiff that this claim under the marriageOctober 26. agreement had nothing whatever to do with the original claimBoksek,O.J. in the action, which was on the promissory note; that theywere quite independent transactions, and that the claim beinga claim in reconvention which did not arise from the sametransaction, was not admissible, and the District Judge seems tohave been taken with that view of the law as presented to him.for he says:—“ I am satisfied that the advance made on the note“ sued upon had no connection whatever with the marriage“ agreement; it was quite an independent transaction, and the“ first defendant is not entitled to set off against it any-“ thing which his wife was entitled to get under the agree-“ ment. ” But this is not a question of set off. It is a questionof cross-claim, and I am not aware of, and the counsel for therespondent were unable to cite, any authority for the propositionthat a claim in reconvention must arise out of or be closely con-nected with the original claim. The sole question is whetherthe right of action under the agreement in case of default vestedin the husband, so that he could sue for it without joininghis wife?
The law of this Island was. until the passing of the MatrimonialBights Ordinance of 1876, that, in default of any ante-nuptial con-tract between the spouses, any property which belonged to thewife at the time of her marriage or which was acquired by hersubsequently was the joint property of husband and wife,and that the husband,being themanagingdirectorofthe
matrimonial partnership,could dealwith theproperty ashe
pleased, and he couldsue or besued inrespectofthe
propertywithout hiswifebeing joined.TheOrdinance to
which I have just referred to made considerable alterations inthe law on this question. While it abolished the community ofgoods, it gave a wife as regards her immovable property the soleright ofenjoying therentsandproceeds.Shewas restricted
from dealing with the corpus during the marriage except with thewritten consent of her husband, but- she might deal with it byher willwithout his consent. Asregards movable property, her
wages and earnings from any occupation and trade carried on byher, and any money or property acquired by her literary, artistic,or scientific skill, was to be her separate property, and she had thefull power of dealingwith suchpropertyanddisposing of it
as if she was unmarried. As regards her jewels and wearingapparel, and the tools, implements, and appliances belonging toany trade, they were to be her separate property; but as regardsall other movable property, the Ordinance made an absolute
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present of it to the husband. So that in some respects her position ^was worse than before the passing of the Ordinance. As regards ct00erimmovable property her position was better, but as regards Bowses. C.Jmovable property, except with regard to such property as I havespecified above, her position was worse. As to this right to recoverthe sum of Rs. 8,000 which vested in the wife, not being immov-able property, it is, under the definition in the Matrimonial RightsOrdinance. “ movable property and is vested in the husband.
It seems to me, therefore, that the right to sue for this moneyvested in the husband, and that he could sue for it withoutjoining his wife as a party aud without her consent. Probablythis result was not contemplated by the parties who drew up thisagreement, but that cannot alter its legal effect. It is the fault,it seems to me. of the parents in not having a proper ante-nuptialcontract drawn up. The answer to that issue will then be in theaffirmative, that the husband is entitled alone to sue the plaintiffin reconvention.
The result will be that, as the plaintiff has obtained judgmentfor Rs. 5.fiOfi on the promissory note, there will be judgment forthe defendant for the balance sum of Rs. 8.000.
Browne, A.J.—I agree.
BABAPULLE v. RAJARATNAM et al