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Present: De Sampayo A.C.J. and Garvin J.
VALLIAMMA v. LOWE et oil.
439—D. C. Chilaw, 6,611.
Husband and wife—Mortgage of immovable property by wife withoutthe written consent of husband—Subsequent ratification by deed—Does ratification render mortgage valid t—Money bond.
A mortgageofimmovable propertybya- wife without the
writtenconsentofher husband cannotberegularized by subse-
quent ratification by the husband. But the ratification rendersthe bond valid and effectual as an ordinary money bond.
T HE facts appear from the judgment.
SamarawichTeme (with him Arulanandan), for plaintiff, appellant—Section 9 of Ordinance No. 15 of 1876 has not done away with theRoman-Dutch law relating to the marital rights of the hus-band. A married woman could not enter into any contractswithout the assistance of the husband, but the subsequent ratificationby Him rendered the contract valid. Although the section says thatthe consent in writing is necessary, there is nothing to prevent thehusbandfromgivingitafterwards. Evenifthe hypothecation
of the propertyis bad,the bond is good as an ordinary money bond,
in view of the husband's ratification in writing given subsequently.Counsel cited Voet 23, 2, 42; I. Maas dorp, pp. 43-45; Qrotius1, 5, 23; and Marie Cangany v. Karuppasamy- Cangany.1
Croos-Da Brera, for defendants, respondents.—Sections 9 and 12make it dear that the husband’s consent should be given prior toor at the time of execution of. the deed. The intention of thelegislature was to protect the wife and prevent her being inveigledinto some foolish disposition. The consent comes too late whengiven after the transaction. The plaintiff cannot recover ason a money bond. The husband’s ratification does not validatea contract of this nature. There should be proof that the wifebenefited by the transaction. Counsel cited Silva v. Egonis,*Ponnamal v. Pattaye,9 Wickremaratne v. Dingiri Banda.*
July 2, 1923. Gabvin J.—.
This was an action by a mortgagee against the mortgagor, herhusband, the second defendant, and a surety, the third defendant.The second defendant filed no answer. The mortgagee’s claim
1 (1906) 10 N. L. B. 79.* (1910) 13 N. L. B. 201.
3 (1901) 2 Br. 362.4 (19IS) 2 C. A. C. 132.
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was, however, resisted by the first defendant, on the ground thatinasmuch as the mortgage bond was executed by her without thewritten consent of her husband, it was bad in law for non-complianccwith the requirements of section 9 of Ordinance No. 35 of 1876.Judgment was entered for the plaintiff against the third defendant,but the plea of the first defendant was upheld, and so far as shewas concerned the action was dismissed with costs. From thisjudgment the plaintiff appeals.
The learned counsel for the appellant rested his case upon a deedbearing No. 1,853 of July 15, 1916, which purports to be a rati-fication bv the husband of the mortgage bond upon which thisclaim is based and of the debt of Bs. 750 incurred by his wife andsecured by the said bond. He contended, in the first place, thatany defect which may have existed in the mortgage bond by reasonof the absence at the time of, the execution of the writtteu consenthas been cured by subsequent ratification. In the next place, hecontended that, even if it had been held that subsequent ratificationwill nob cure the defect in the bond so far as it purports to dealwith immovable property, still it is nevertheless sufficient to supportthe claim for money lent on the bond.
The first of these points depends upon the correct interpretationof section 9 of Ordinance No. 15 of 1876. That section aftergiving a wife a separate estate in her immovable property proceedsas follows: —
" Such woman shall …. have as full power of disposingof and dealing with such property by any lawful actinter vivos with the written consent of her husband, butnot otherwise, or by last will without such consent asif she were unmarried."
The submission is that these words should be construed to meanthat the written consent required by section 9 may be given at anytime, and not necessarily at the time at which the act by which theproperty is disposed of or dealt with is done.- It is suggested bycounsel that the language of the passage does not definitely fix themoment at which the act is done ns the point of time at or beforewhich the written consent should be obtained, and that in theseoircumstances it is justificable in construing the section to have regardto the law, as it stood before Ordinance No. 15 of 1876 was passed.It is contended further that prior to the time when this Ordinancebecame law, the husband's consent to a contract by the wife maybe given before or at the time of the formation of the contract orat any time subsequent thereto. The only authority that learnedcounsel was able to cite in support of his contention that the dis-position of her immovable property, subject to the Boman-Dutchlaw, could be regularized by the subsequent ratification of the
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husband is a passage in Voet 23, 22, 42. which is rendered byStoney in his translation as follows: —
“ Nowadays the ratification of the husband is equivalent tohis authority …. for as the consent of thehusband is particularly required to prevent him sufferinga loss, a contract founded on the consent of the husbandcaunotseem tolackconfirmationthoughentered into
by the wife.”
This passage appears in an article in which Yoet is dealinggenerally with the position of a husband and wife relating tocontracts made by the wife. The general tenor of the articlewould seem toindicatethatthe contractswhichVoet is here
considering arecontractsof adifferent kind. Voetsays nothing
in this article with specific reference to the disposition or dealingwith her immovable property by a wife, nor has counsel beenable to cite anything more specific than the passage I havejust referred to in support of his proposition; nor is this altogethersuprising when it is remembered that in the state of communityof property which came into existence upon a marriage ofpersons subjectto theRoman-Dutch law,it isthe husband
alone who has the power of disposition over the property of thecommunity. The only case in which auy similarity is possiblebetween the condition of a wife under the Roman-Dutch law andone who is entitled to claim the privileges created by OrdinanceNo. 15 of 1876 is that of a woman who by ante-nuptial contracthas reserved to herself a separate estate in her immovable .property,leaving the management and control of it to her husband. Counselwas unable to refer us to any clear authority for the propositionthat in such a case a disposition of her immovable property by thewife without the consent of her husband might be regularized bysubsequent ratification by her husband. Whatever the Roman-Dutch law may be, I think that the language of section 9 is clear,and only admits of the interpretation which has already beenplaced upon it by Wood-Renton C-.J. In the case of Ponnamat v.Pattaye (supra), he said:
“ I think that in order to satisfy the provisions of section 9 ofOrdinance No. 15 of 1876, there must be an express consentin writing by the husband prior to or at any ratecontemporaneous with the execution of the particularinstrument involved, and having relation to that veryinstrument.”
This is the interpretation I should myself place upon the wordsof the section by which a valid disposition or dealing with immovableproperty is only permitted when the act of disposition or dealingwith the property is done with the written consent of the husband
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When such consent has not been given at or before the act, it is adealing with immovable property otherwise than in accordancewith the provisions of section 9. No dealing otherwise than inaccordance with the provisions of that section is permitted.
In the case of Wickramaratne v. Dingiri Banda (supra) thisinterpretation was re-affirmed by Wood Benton C.J. and Pereira
J., the other member of the Court expressed his own view asfollows: —
“ I have no hesitation in saying that this provision implies that adisposition of immovable property by a maried womanis ineffectual unless the consent of her husband is givento the disposition of the particular property dealt withat or before such disposition
Where the words of an enactment are as clear as the one nowunder consideration, there is no room for speculation as to theintention of the Legislature. But even if this were a case inwhich it is necessary to look beyond the words of the enactmentto gather its true meaning, I should like to point out that theOrdinance No. 15 of 1876 in so far as it gives a married woman aseparate estate is not a development of the Roman-Dutch law,but was designed to introduce the principles of the English law;for it is common knowledge that this part of the Ordinance isfounded on the Married Women's Separate Property Act.
The second of the two contentions upon which this appeal isfounded remains to be considered. Granting that the bond isineffectual as a mortgage of immovable property, is not the plaintiffentitled to judgment for the amount of the debt thereby created ?Counsel contends that the bond is valid and effectual as anordinary money bond. Such a bond does not fall within theclass of documents affected by section 9.
Counsel contends that inasmuch as the husband has ratified thecontract, the plaintiff is entitled to recover on the bond. Thiscontention is entitled to succeed. The Roman-Dutcb law broadlystated is that the contract of a married woman made with theconsent of or which has been ratified by her husband is good inlaw. In this case both the debt and the mortgage have been soratified. For reasons I have stated at some length the ratifi-cation of the mortgage of immovable property is ineffectual. Thereremains the obligation to repay money borrowed and receivedby the wife. The whole transaction having been ratified by thehusband, in my opinion the plaintiff is entitled to judgment forhis money claim. He is not entitled to a hypothecary decree.
I would accordingly allow the appeal, with costs.
Db Sampayo A.C.J.—I agree.
VALLIAMMA v. LOWE et al