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Present: Fisher C.J. and Garvin J.MATHES v. RODRIGO.
426—D. C. Negombo, 1,706.
Husband and wife—Joint lease by husband and wife—Paymentof rent by lessee to husband, effect of —Is'husband authorized agentof wife within the meaning of section 9 of Ordinance No. 15 of1876 f
Where a woman married bofore the Married Women’s Pro-perty Ordinance of 1923, leased property which belonged to herexclusively, and the husband joined the deed of lease to signify hisassent to the lease, and where the lessee, who knew that the wife wassolely entitled to the property, paid the rent to the husband and'obtained a receipt from him,—
Held, that such payment was not a valid discharge of the obli-gation to pay rent.
Rosairo v. Abraham 1 followed.
The husband is not the “ duly authorized agent ” of the wifemerely by reason of the fact he is husband or that he joined in. the deed of lease.
~r>LAINTIFF,1 first and
who is the wife of the third defendant, sued thesecond defendants to recover Rs. 6,000, being
a year’s rent due on a lease dated February 9, 1926. The plaintiffand the third defendant were married shortly before the MarriedWomen’s Property Ordinance of 1923 came into operation. Inthe lease the plaintiff and the third defendant appear as lessors,while the property is declared to be the property of the plaintiff.After the plaint was filed, but before summons was taken out,the third defendant gave a receipt for the rent sued for, which thedefendants pleaded in discharge of the obligation to pay the rent.The learned District Judge held that the receipt given by thehusband as co-lessee was a valid discharge and dismissed theplaintiff's action.
Croos-Dabrera, for plaintiff, appellant.
Rajapakse, for first defendant, respondent.
A. L. Jayasuriya, for third defendant, respondent.
May 5, 1928. Fisher C.J.—
In this case the plaintiff, who is the wife of the third defendant,sued the first and second defendants as lessees to recover Rs. 6,000,being a year’s rent due on a lease dated February 9, 1926.
1 (1914) 17 N. L. R. 357.
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The third defendant was joined as defendant because, according 1928.to paragraph 7 of the plaint, he refused to give his consent to the
plaintiff to institute the action. The plaintiff and the third
defendant were married shortly before the Married Women's Mattest).Property Ordinance, No. 18 of 1923, came into force, and it is notcontested that by reason of section 9 of the Matrimonial BightsOrdinance, No. 15 of 1876, the written consent of the husbandwas essential for the validity of the lease.
In the lease the plaintiff and the third defendant figure as “ thelessors ”; the property is declared to be the plaintiff’s property,the rent for the first six months is stated to have been alreadypaid in advance, and the lessees agree to pay the rent for theremaining six months of the fint year at the expiration of thefirst six months, and the rent for the remaining four years quarterly,and “ to obtain receipts from the lesson.”
In the attestation clause of the lease it is stated that the obligationto pay the rent for the fint six months (Bs. 3,000) in advance hasbeen met by the second defendant giving to the plaintiff a promissorynote for that amount. The rent for the next six months was alsopaid to the plaintiff, that is to say, all the rent payable under thelease, which became due prior to the rent sued for was paid, oraccounted for, to her, and the learned Judge who tried the casehas so found.
After the plaint was filed, but before summons was taken out,the third defendant gave what purports to be a receipt for therent sued for (document D 2) and the action went to trial on twoissues.
Was the sum of Bs. 6,000 sued for due at the time of filing
this action ?
Is payment to one of the lessors a due discharge of the
obligation to pay the lease money ?
The following passages of his judgment embodies the learnedJudge’s decision:—“ The money due on the lease is movable propertyand is not comprehended in sections 10 and 11 of Ordinance No. 15of 1876. Third defendant is therefore competent to dispose of itas he has done in granting receipt D 2. I find that in law thereceipt D 2 given by a co-lessee is a good and valid discharge ofthe sum due on P 1 as rent for the secoud year. It is dated June 2,
1927, i.e., six days after the institution of this action but five daysbefore the summons were taken out by plaintiff. On the secondissue I hold in favour of the defendants.”
On the first issue, as it is framed, the answer should have beenin the affirmative, but the question of whether the giving of thereceipt, assuming it to be a good discharge, before summons, was
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in itself a complete answer to the claim is not one to which, in myopinion, it is necessary or possible, without knowing more aboutthe facts, and neither the first nor second defendant gave evidence,to give an answer.
On the second issue the learned Judge has based his findingon the view that the rent was the absolute property of the thirddefendant. That view is, in my opinion, erroneous and is moreoverin conflict with a decision of this Court in the case of Rosairo v.Abraham * decided in 1914, in which it was held that the rent ofimmovable property to which a married woman is entitled as herseparate property is also her separate property. In that caseWood Renton A.C.J., after rejecting the view that section 19 ofOrdinance No. 15 of 1876 deals with rent accruing from a marriedwoman’s immovable property, said (see page 360): “ Section 9clearly provides, by necessary implication, that not only theimmovable property with which it deals but the rent of thatproperty becomes the married woman’s separate estate.”
It was however urged that the receipt could be supported on thefollowing grounds :—
First, that it was good inasmuch as it was given by one of thetwo lessors; and
Second, that the third defendant must be taken to be “ a dulyauthorized agent ” within the meaning of section 9 of' Ordinance No. 15 of 1876, which provides that the receiptsof a married woman “ or the receipts of her duly authorizedagent ” shall be a good discharge for the rents of herimmovable property.
As regards (1) it is admitted, and the statement in the lease isconclusive on the point, that the lessees knew that the plaintiffwas solely entitled to the property and that the third defendanthad no beneficial interest in it.
It was pleaded by the plaintiff that the third defendant only“ signed the said deed of lease in his capacity as the husbandof the plaintiff,” to which the defendant in his answer repliedthat he “ signed the deed as a co-lessor by reason of the interesthe had in the properties.”
In my opinion it is clear that the third defendant was made aparty solely to evidence his consent to the lease in order to complywith section 9 of Ordinance No. 15 of 1876. He was. therefore,so far as the question arising in this case is concerned, a lessoronly in the sense that no valid lease could be granted withouthis consent. That this was well understood and recognized by
> 17 X. L. R. 357.
the lessees, who, as has been noted, were well aware that he hadno actual beneficial interest in the property, is evidenced by the fjshbb C.;terns of the attestation clause and the fact that they paid the —~—second six months’ rent to her and received a receipt signed by her Rodrigo'for it.
Furthermore, subsequent negotiations on behalf of the firstand second defendants were carried on solely with the plaintiff.
Whether the second and third defendants were entitled underthe terms of the lease to a receipt signed by both husband andwife is another question, but it is clear that a receipt by aperson who is solely entitled to the rent is a good discharge,while a receipt signed by a'person who, to their knowledge, hadno beneficial interest at all was in no degree a discharge of thedefendant’s obligation to pay rent.
D 2 is moreover in my opinion no evidence of payment as againstthe plaintiff in the absence of any reliable evidence of payment,
Rodrigo v. Andris.1
As to (2), in my opinion the third defendant was not the dulyauthorized agent of the plaintiff. There are circumstances in whicha husband may be regarded as the agent of his wife by implication.
But he is not so merely by reason of the fact that he is the husbandand the fact that the third defendant joined in the lease did notunder the circumstances make him a “ duly authorized agent ”of the plaintiff to give receipts for money to which she is solelyentitled.
Plaintiff is therefore clearly entitled to sue for so much of therent as she is beneficially entitled to, that is, to the whole of it,and in my opinion the judgment of the District Court must beset aside, and judgment entered for the plaintiff for the amountclaimed with costs of the appeal and in the District Court.
Garvin J.—I agree.
1 (1917) 20 N. L. ft. 20.
MATHES v. RODRIGO