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HADJIAR v. HENDRICK APPU et at.
D. C., Colombo, 5>559.
Marriage in community—Widow's right to mortgage the common estate forpaying husband's debt—Liability of estate for such debt.
A widow married in community of property can create a validmortgage upon the common estate for paying hdr husband’sdebt, and the debt so contracted is not her own, but is chargeableupon the common estate.
HE facts of the case appear in the judgment of his Lordshipthe Chief Justice.
Van Langenberg, for appellant, cited during the course of theargument Edirmanesingha's case, Vanderstraaten'$ Reports, p. 264 ;5 8. C. C. 70, 162; 3 Lorenz, 235: Wendt, 343 ; 1 Burge, 308.
Dornhorst (with Tirundvukarasu), for respondent.
30th October, 1895. Bonser, C.J.—
In this case the plaintiffs <31aim certain lahds, and they makeout their title in this way.
The lands belonged to one Allis, who died indebted. His widowwho was married in community, after his death mortgaged certain .of the properties for the purpose of satisfying the debt. Subse-quently the mortgagee having put his bond in suit wished toenforce his judgment for a sum which, with interest and costs,amounted to Rs. 400. The widow, who was unable to pay thismoney, found a- friend, who said he could obtain a purchaser forthe lands, and introduced her to the first plaintiff, who bought theproperty for Rs. 400.
The defendant alleges that he is a nephew of Allis, and that asAllis died intestate and without issue he was therefore one ofAllis’s heirs, and was entitled to a share in these lands. He con-tended that the widow had no right to mortgage the property topay the husband’s debts, and that as she had mortgaged theseproperties the mortgage debt was her own. I am of opinion thatthe debt was not her own debt, but was properly contracted byher to pay her husband’s debts.
Then the defendant raised a claim to one particular portion ofthe land called Kahatagahawatta, which he said was given to himby Allis, and of which he Said he had been in possession for morethan ten years uninterruptedly. Under these circumstances, hecontended that he had acquired a title by prescriptive possession.
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It appeared, however, that Allis had his residing house on Kahata-gahawfrtta and resided there until his death, and it is thereforeclear that of that part of the property the defendant was not inexclusive possession. The learned District Judge was not satisfiedwith the evidence of possession adduced by the defendant, and I donot see how I can say that he was wrong. Therefore, this appealmust be dismissed.
At the same time the defendant may have some right to thisland eithef as planter or as having made improvements on it, andhe can hereafter, after he has been evicted, prosecute his claim inthis respect, if he is so advised.
Withers, J.—I agree.
October 30*Boksbr, 0. J.