that he took the bill in good faith and for value”
He submits that under section 29 to establish that he is a holderin due course, a holder must prove that he took the bill in goodfaith. and for value. But section 30(2) is to the effect that there isa presumption in favour of a holder of a bill that he is a holder indue course. Therefore, while section 29 states that are the conditionsunder which a holder becomes a holder in due course, section 30(2)creates a presumption placing the burden on the holder to prove theconditions in section 29 when it is proved that the bill is affectedby “fraud, duress, or force and fear or illegality”. I see nothing
Ibrahim v. Annammu fAhilul CiiJcr. J I
inconsistent between these two sections. When the defendant did notframe issues on fraud etc. and did not place any evidence' on thatcontention, the learned District Judge was entitled to come to theconclusion that the plaintiff would be deemed to be a holder in duecourse.
Besides, what does it matter to the maker even if the payee inthe note had gifted it to the plaintiff? When the defendant had notframed an issue as regards consideration between himself andMohamadu, thereby admitting consideration as between the ijiakerand the payee, it is immaterial that no consideration passed betweenthe payee and the plaintiff.
It. is significant that value and not valuable consideration is theterm used, and the note is payable to Mohamadu's order and hehad endorsed it in blank. Therefore, it became payable to the bearerwho is the plaintiff in this action. I uphold the decision of the learnedDistrict Judge as against the defendant on issues 2. 3 and 4.
As regards the question whether a Tesawalamai woman can suea third party without joining her husband. I agree with L. H. deAlwis, J. In AnnafiUlai v. Eswaratingam, (8) H.N.G. Fernando. J.stated as follows:-
“It being clear law that a husband cannot validly donate thewife's half-share of the tediatetam. it would be unreasonable tosuppose that a wife, although a co-owner with a person towhom the husband purports to transfer the entirety of theproperty, is powerless to assert her right either by way ofvindication or pre-emption, if the husband chooses to remaininactive. In the absence of any authority to the contrary or anyexpress provisions in the Tesawalamai debarring a wife fromsuing alone in such a case, I consider it only reasonable toapply in this situation the well-known practice that a party whoshould join as a plaintiff, but refuses to do so, may instead bejoined as a defendant.. In this way resort may. I think, be hadto the principle ubi jus ibi remedium. I would acordingjy holdthat the plaintiff’s action was properly instituted by the joinderof her husband as a defendant”.
The headnote reads as follows:
“A husband to whom the Tesawalamai applied purported todonate not only his own share but also his wife’s half share ofthe tediatetam before the date of operation of. the Jaffna
Sri Lanka Law Reports
(1982) 2 S.L.R.
Matrimonial Rights and Inheritance (Amendment) Ordinance,No. 58 of 1947. Subsequently, in October 1955, the donee soldthe property to the 3rd defendant.
that the donation was invalid as to the wife’s share.
that the wife, by reason of the donation, became co-ownerwith the donee.
that the wife’s legal relationship to the donee was suchas to confer on her the right of pre-emption of the shareheld by the donee.
that the wife was entitled, in her own right, to maintainan action for pre-emption during the subsistence of hermarriage with her husband. In such a case, the husband,if he chooses to remain inactive, may be joined as a defendant.
Held further, that the question whether the 3rd defendant had anyknowledge or notice of the donee’s right to a half-share was of norelevance”
I am of the view that the headnote (iv) is misleading. I haveemphasised the words “in such a case" because, in my opnion, thedictum of Fernando, J. is applicable only to a situation similar towhat existed in that case, viz: a husband who had acted adverse tothe interests of his wife against whom the wife had to obtain adeclaration in her favour before she could establish her right tomaintain the action against, a third party within the time prescribedby para 9 of chapter 64. In such circumstances, it would defeat thepurpose of the law if the wife is required to obtain the consent ofher husband to join her as a co-plaintiff. The only other manner inwhich she could meet the requirement of the Tesawalamai law wasto make him a defendant. No doubt, he was made a defendant toobtain a declaration in her favour, but just the same he was adefendant. I do not think that this judgment .is an authority for theproposition that the Tesawalamai woman has been “liberated”. Thatshould await legislative action and it is not for the Courts to rectifythis anomaly.
The appeal is allowed and the action is dismissed with costs inboth courts.
I do not agree that the action should be dismissed because theplaintiff had not appeared with her husband. She had obtained
( A
/ StiittHvuni i.1
judgment without his help and in any event, in mv view, it is notnecessary for a Tesawalamai woman to appear by her husband. Ido not propose to write a judgment giving my reasons for this viewas my two Brothers have taken g different view and as this is nota final Court of Appeal.
Appeal allowed.