054-NLR-NLR-V-12-FERNANDO-et-uxor-v.-AMMAL.pdf
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1900.
July 0.
D. O., Colombo, 23,809.
Res judicata—Woman married after Ordinance No. IS of 1876—Judgmentagainst husband in respect of the wife’s separate estate — Estoppel —Abolition of community of property — Rights of wife — Roman-Dutch Law — Ordinance No. 15 of 1876, ss. 8 and 20 — CivilProcedure Code (Ordinance No. 2 of 1889).
A judgment obtained against the husband alone of a womanmarried, after Ordinance No. 15 of 1876 came into operation, inrespect of her separate property, does not bind the wife.
The repeal of section 20 of Ordinance No. 15 of 1876, whichenabled a wife to appear in Court as a party to an action by theCivil Procedure Code, did not revive the law that existed prior tothe passing of the said Ordinance.
Middleton J.—The alteration of the law relating to marriedwoman by Ordinance No. 15 of 1876mustof necessity have conferredon a married woman the right to appear in Court as a party to anaction, assisted by her husband.
A
PPEAL by the plaintiffs from a judgment of the District Judge(Joseph Grenier, Esq.) dismissing their action. The facts
material to the report sufficiently appear in the judgments.
Bairn (with him B. F. de Silva), for plaintiffs, appellants.
Walter Pereira, K.C., S.-O. (with him Tisseveresinghe), for thedefendant, respondent.
Cur. udv. will.
July 6, 1909. Wendt J.—
The facts upon which this appeal turns are fully set out in mybrother Middleton’s judgment, and I need not deal with them indetail. The most important question argued before us was as to theeffect upon the first plaintiff’s rights in the house No. 45 of the decreeobtained against her husband alone in a former action, No. 19,170,of the same Court. The plaintiffs were married under the OrdinanceNo. 15 of 1876, and the house was the first plaintiff’s separate pro-perty under section 9 of that Ordinance. It was not liable for thedebts or engagements of her husband, and her receipts alone or thoseof her agent were constituted a good discharge for the rents, issues,and profits arising from such property. She had as full power .ofdisposing of such property as if she were unmarried, with the onequalification that for any disposition inter vivos her husband’s con-sent in writing was necessary, although even that might be dispensedwith by the Court if unreasonably withheld, and in certain other
Present: Mr. Justice Wendt and Mr. Justice Middleton.FERNANDO el uxor v. AMMAL.
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cases. The community of ownership between husband and wifewhich existed under the Roman-Dutch Law was abolished (section8), and so was the exclusive administration of the common propertyformerly vested in the husband. By section 20 of the Ordinance amarried woman, whether married in community or under the Ordi-nance, was empowered to maintain or defend in her own name anyafction in respect of her separate property, and had in her own namefor the protection of such proerty the same remedies as if she wereunmarried, with the proviso that her husband might with her con-sent in writing maintain or defend any such action in her behalf.That is to say, that she might in writing authorize*her husband tosue in her name, or, if she were sued in her own name, to defend theaction on her behalf. In either case the wife was to be the party tothe action, even when married in community. Nothing is said asto the necessity of suing the husband, nor anything that implies thepossibility of his being substituted for his wife. Section 20 is nolonger in force, having been repealed by the Code of Civil Procedure,Ordinance No. 2 of 1889. The Code contains no provision as to theliability of a married woman to be sued, either generally or in respectof her separate estate, or as to the mode -of suing her. The law (ifsucli existed) which prevented the appearance of a wife in Courtand necessitated the suing of her husband, even in cases in which, ifa femme sole, the wife would have been suable, was swept away bysection 20 already referred to, and the repeal of section 20 alone didnot revive the law which it had repealed, because section 2 of theCode .expressly declared that such repeal “ shall not revive anyenactment, right, office, privilege, matter, or thing not in forceor existing at the commencement of this Ordinance.” There istherefore nothing to exclude the operation of the ordinary rule thatin order to bind a person by a decree you must make him a party toyour action. The first plaintiff is therefore not bound by the decreein case No. 19,170.
The evidence shows that, the second plaintiff (the husband) wasin action No. 19,170 sued purely as a wrongdoer, irrespectively ofownership or interest in house No. 45. He admitted that his co-defendant, a builder, was at his instance building on premises No. 45,but said that he was “ lawfully entitled ” so to do, and his answercomprised a denial of the existence of the rights which plaintiff com-plained he had infringed. In an affidavit filed with Iris answer, inorder to support an application for the dissolution of the interiminjunction, the present second plaintiff disclosed that his wife wasthe owner of house No. 45 by deeds dated September, 1900, andFebruary, 1903 (the cause of action having been.laid in August,1903). The title so disclosed was from a source entirely unconnectedwith second plaintiff Plaintiff there took no steps to make the wifea party to the action, although he was seeking to impose a servitudeupon her land, but proceeded to trial.
1909.
July 6-
Wendt J.
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1909.
July 6.
Wundt J.
The learned District Judge lias not expressly ruled, nor does hisjudgment imply, that the former deoree against the second plaintiffwas propria vigore binding on the first plaintiff, but he thinks “ thewife is clearly estopped from now putting forward a plea of thisnature. She stood by and allowed her husband to contest the action,tacitly ratifying and confirming his acts; and she cannot now, afterthe lapse of five years or so, challenge or deny his authority to dowhat he did.” The District Judge has not specified the acts oromissions which he considered to amount to a standing by and aratification on the part of first plaintiff. There is no evidence thatshe knew of the pendency of the action 19,170. In 1901 (as nearly asI can fix the date from the evidence) the witness Emmanuel de SilvaWijeratna, first plaintiff’s paternal uncle, visited the premises whiledefendant’s intestate was rebuilding his house No. 44. He says hewas asked to do so by first plaintiff’s stepfather, who was then ill,and who died in January, 1902. This witness was not a predecessorin title of the first plaintiff, who had inherited an undivided one-tenth of the house No. 45 from her father in 1882, and had acquiredin 1900 by gift from her mother and brothers seven-tenths more—apparently on her marriage. The remaining two-tenths belongedat that time to her two sisters. First plaintiff was apparently amajor, for she executed the deed of donatiqn of 1900. At any rateit is not shown that her stepfather or uncle had any legal right torepresent her, or her sisters either. The witness Emmanuel deSilva Wijeratne does not say she knew anything about his action orratified it. He had no authority directly from her. Even assum-ing that he acted on her behalf, which is not clear, it is impossible tohold that his conduct estops the first plaintiff. I do not think thatit would have estopped the witness himself had he been then theowner of No. 45, and now the plaintiff in this action.
Had I accepted the learned District Judge’s finding as to resjudicata or estoppel, I should have found it difficult to hold thatit concluded the whole action, because there remain the sunshades,cornices, and pilasters, &c., which overhang first plaintiff’s land, andthe defendant cannot justify the maintenance of these on the groundthat, in a different place, his old roof had overhung plaintiff’s landto the same extent. Unreasonable delay in taking action, however,if found by the Court, might induce it to give damages in lieu of amandatory injunction. There would have remained also the ques-tion of other windows and openings, additional to that dealt with incase No. 19,170, and although one cannot object to a neighbourmaking openings in his wall and overlooking one’s property, yet, inview of defendant’s claim of the right of light and air through thoseopenings, plaintiffs would perhaps be entitled to a declaration thatno such right exists. I
I agree to the order formulated by my brother Middleton.
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Middleton J.—1909.
This was an action by the first plaintiff, with her husband the-
second plaintiff, to vindicate title to a house bearing No. 45, First MiddletonCross street, Pettah, against the defendant, as administrator of the J'estate of the late Pillay, owner of the adjoining No. 44,'First Crossstreet, praying (1) that the first plaintiff be deoreed the owner of astrip of land marked pink in plan X; (2) that the defendant be orderedto remove all buildings whatsoever from the said land ; (3) that thedefendant be ordered to out off and remove certain overhangingroofs, cornices, or mouldings, pilasters, and sunshades projectingover the first plaintiff’s land and shown in T, and to break andremove certain windows and close up certain openings for light andair marked in the same plan; (4) for damages Bs. 4,500 and costs.
The defendant denied the encroachments on the plaintiffs’ landalleged in the plaint and the correctness of the plaintiffs’ plan Y andthe damage alleged, and averred that the projections were erected■with the knowledge and consent of the plaintiffs’ predecessor in title,and pleaded, as regards one window in the alleged encroaching wall,that the same was an ancient light, and had been so declared in actionNo. 19,170, D. C., Colombo, between the second plaintiff and thedefendant’s testator, the judgment in which action was res judicataof the present action. The correctness of plaintiffs' plan X was nottraversed specifically.
The defendant in an amendment to his answer further averredthat the alleged encroaching wall was thirty years old in 1900, andthat upon a dispute as to the boundary arising between plaintiffs’predecessors in title and the defendant’s intestate in 1900, the presentboundary was agreed upon as the correct one, and pleaded prescrip*tive possession, and further set up prescriptive title to maintain the• projections over the plaintiffs’ property.
The issues agreed on were as follows :—
Does the decree in D. C., Colombo, 19,170, bar the plaintiffs
from maintaining this action and from claiming the right,if any, of raising their building higher ?
Can the defendant claim any right in respect of the said
openings which he omitted to claim in the said action ;and is such claim barred by section 34 of the CivilProcedure Code ?
Have the plaintiffs been guilty of laches; if so, are they
entitled to the 2nd and 3rd prayers of the plaint ?
Did Pillay break down the old partition wall between the two
premises and rebuild it so as to encroach on plaintiffs’premises to the extent of 110 feet ?
Did the portion coloured pink in plan.X belong to the plain-
tiffs,, and if so, had Pillay and his predecessors in titleacquired a title to the same by prescription ?
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Did the plaintiffs and Pillay agree in 1901 that the wallas it now stands is the correct boundary between theirpremises ?
Tf they did, are the plaintiffs estopped from denying that thesaid wall is the correct boundary between their premisesand that, of Pillay t
(S)Were the projections A, 11, ('•, D, 15, and P over the plain-tiffs’ premises and the windows and openings marked Jto 10 erected with the knowledge of and without protest-on the part of the plaintiffs’ predecessor in title ?
Did the roof of defendant’s old building project over theplaintiffs’ premises, and to what extent, and did defend-ant acquire any servitude in respect thereof '!
If so, did the right to maintain such a projection of theroof give the defendant the right to substitute the pro-jections complained of, and has the defendant acquireda prescriptive right so to do ?
Was the first plaintiff prevented from continuing the build-ing of her house by any act on the part of the defendant ?
If so, to what damage is first plaintiff entitled therefor ?
The District Judge found in favour of the defendant on the first
issue, and dismissed the plaintiffs’ action.
The plaintiffs appealed, and the main question which was raisedand argued before us was whether the second plaintiff, the husbandof the first, was a privy of the first plaintiff, in view of the judgmentin D. C., Colombo, 19.170, so as to estop the plaintiffs’ rigid to bringthis action.
It was argued by the Solicitor-General that under the Roman-Dutch Law the wife had lawfully no judicial standing, was in fact aminor under the guardianship of her curator, her husband (Voet 23,2, 41; Grotius 1, 5, 22 ; Voet -5, 1,18), and could not appear in Courtas a party to an action ; that section 20 of Ordinance No. 15 of 1876had given her the right to do so, but the repeal of that section byOrdinance No. 2 of 1889, and no substitution of any other enactmentin its place, had left- tlie law in the same state as it was before thesection was passed.
I cannot believe that this was the effect of that repeal, or that itwas the intention of the Legislature that it should be so. TheLegislature in passing Ordinance No. 15 of 1876 were emancipat-ing women from the thraldom of the Roman-Dutch principle of thecommunity of property on'marriage. The immovable property of awoman married after June 29,1877, belongs to her “ for her separateestate (Ordinance No. 15 of 1876, section 9), and is not liable forthe debts or engagements of her husband.” She has full power ofdisposing of it and dealing with such property by any lawful actinter vivos until the written consent of her husband, but not other-wise, or by last will without such consent as if she w-ere unmarried,
1909.
July 6.
MTD'DLETO'N
J.
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and her receipts alone are a good discharge for the rents arising fromsuoli property. These rights, in my opinion, must of necessity haveconferred on the woman a right to appear in Court sis a party to anaction concerning such immovable property and defending or assert-ing her rights to her separate estate, but I think in conjunction withher husband, without whose written consent she could not alienate it.This, I tliink, must therefore have been the view of the Legislaturewhen it repealed seotion 20.
In suing her husband alone in action No. 19,170, liis wife was not,properly speaking, made a party to that action. It is conceivablethat the whole case may have been carried on without her know-ledge or consent. The doctrine of community of property wasabolished, and with it went the theory of partnership involved init by that, doctrine. The husband does not represent the wife inmatters concerning her separate immovable estate. He has onlya veto on its alienation, which may be over-ruled by the Court ifunreasonably imposed, but otherwise no control. I do not think,therefore, he is competent in the eye of the law to represent her inany acts relative to her separate estate unless duly appointed to do.so, and in the case of an action she must sue and be sued in conjunc-tion with him. Can lie, then, if sued alone in respect of a separateestate, be said to be privy to the wife so as to bind her by a judgmentobtained against him in respect of such estate ? I think not. Heis neither privy in blood, in representation in estate, in respect ofcontract, or inlaw. A judgment against a husband suing or defend-ing in right of his wife would be an estoppel in any future action byor against him in respect of the same right, and to that extent hewould be a privy in law of his wife, but in my opinion the wife hereis not privy in law to the husband so as to be bound by an actionbrought against the husband alone in respect of her separate estate.
It is further contended that the wife is estopped by her conductin standing by and allowing the wall to be rebuilt in its presentposition, and in support of this contention it is urged that thewitness Wijeratna was the wife’s agent at the time of the dispute' about the defendant’s wall, and acquiesced in its being rebuilt inits present state.
It is sufficient, I think, to say that the evidence, does not warrant -the conclusion that Wijeratne was the plaintiff’s agent, or even thathe acquiesced on her behalf in the rebuilding of the wall where itnow stands. The wall may have been rebuilt in its present positionso far as the evidence goes without his knowledge or consent. Evenif this were proved, it would not prevent an action for damages,though it might stand in the way of the Court’s granting a manda-tory injunction (PiUai v. Tambi1).'
I think, therefore, the first plaintiff is not estopped from denyingthat the wall is the correct boundary between her premises and that' (M3) ■: a. c. it. r,u.
1909.
July 6.
Middleton
J.
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1909.
July 6.'
Middleton
J.
of Pillay , and maintaining this action. On the principle that theparties are not the same as in No. 19,170, the defendant would notbe estopped Under the second issue. As our decision on this pointinvolves a new trial as to the rights litigated in action No. 19,170,1do not propose to give any decision on the other issues agreed to, asfindings on them may be affected by the evidence and finding on thequestion of an ancient light and the position of the wall. I would setaside the judgment appealed against and order a new trial, givingthe parties leave to avail themselves/*if before the same’ Judge, ofthe evidence already heard.
The costs of the appeal must be borne by the defendant, the othercosts will be costs in the oause.
Appeal allowed; case remitted.