065-NLR-NLR-V-23-FERNANDO-v.-SILVA-et-al.pdf
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Present: Ennie and Porter JJ.
FERNANDO v. SILVA et al.
452—D. C. Negombo, 14,849F.
Mortgage of property by husband—Subsequent transfer to wife—Actionby mortgagee on bond—No notice to wife—Is wife bound t—Matrimonial Rights Ordinance, ss. 13 and 14.
A mortgaged the property in dispute to B in 1890. B putthe bond in suit and purchased it himself, and obtained a fiscal’sconveyance in 1915. In 1903 A conveyed for a consideration theland to his wife C, who was living in separation. She mortgagedit to D in 1911. D put the bond in suit, and purchased the propertyin 1919. B did not register his address, and did not make A’s wifea party to his action on the bond.
Held, that D had better title; and that section 13 of the Matri-monial Bights Ordinance under which the gift of property byhusband to his wife left the property still subject to the husband’sdebts did not dispense with the necessity of giving notice to C(wife) of the action on the mortgage bond by B.
rpHE
facts appear from the judgment.
J. S. Jayawardene (with him R. C. Fonseha), for plaintiff,appellant.—The bond in plaintiff’s favour was executed long prior totite deed in favour of Somiel. The deed in favour of Somiel wasexecuted by her husband, and under section 13 of Ordinance No. 15of !S?6 it is subject to the debts and engagements of the husband asif the deod had not. been made. The deed must be, therefore, treatedto be null and void. The plaintiff was, therefore, under no obliga-tion to make the wife a party to the action. In Seneviratne c.Secni1 it was held that where a lease was null and void as havingbeen executed in contravention of a stipulation in a mortgage bond,it was not necessary to join the lessee as a partv-in an action on thebond. The deed in favour of the wife must be treated as non-existent, and she was therefore not entitled to any notice. Evenif she was, the husband was served with notice, and in law this issufficient, as he represents the wife ir Court. The wife has nostatus in Court. Counsel also cited Chartsa v. Couderi?
Croos-Dabrera, for respondent*—Section 13 speaks of voluntarygrants, gifts, and settlements. The <bed in favour of Somiel is,on the face of it, a transfer, and must be presumed to be for con-sideration. No evidence has been led to rebut this presumption.
The section does not make the deed null and void. It makes it%
1 UW) 4 O'W.B. 2$2.
1 (2324) 17 N. L. B. 397.
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1982* subject to the debts of the husband. The wife is therefore in theFmutndoP°B^*on ft P11*8116 cucumbranc er, and the plaintiff not having
v. SUvaregistered his address, she is not bound by the mortgage decree
(Bamanathan Ghettyv. Gassim1 and Suppramaniam Chetty v. Weera-sekera2). She should have been made a party and given an oppor-tunity of disputing plaintiff’s claim. If the property had been seizedunder a writ on a money decree, it was open to her to prove that thedebt was not due, or that the writ was irregularly issued. Sheshould not be placed in a worse position in the case of a mortgagedecree.
Jayawardene, in reply.—Under section 14 the burden of proofwas on the wife to prove consideration. Counsel cited Kanapathi-pittai t>. KanapcUhipiUat ®
April 4,1922. Ennis J.—
This was an action for a declaration of title. The land originallybelonged to one Sadiris, who, on September 27, 1899, mortgagedthe property on the document P 1 to the plaintiff. The plaintiffput the .bond in suit and purchased the property himself, taking aconveyance on June 28,1915. The defendant claims in the followingway: He says that Sadiris on March 10, 1903, by the documentD 1 conveyed the land to his wife Somiel, who, on October 3, 1911,mortgaged it to Weerasekera. Weerasekera put the bond in suitand purchased the property himself on November 20, 1919. Hethen sold it on May 26, 1920, to the first defendant. The learnedJudge held in favour of the first defendant, on the ground that theplaintiff, when he put his mortgage bond in suit, failed to give noticeto Somiel. The plaintiff appeals. I am of opinion that the learnedJudge was right. Somiel was the subsequent grantee, and in theordinary course should have received notice. It has been arguedon appeal, however, that by virtue of section 13 of the MatrimonialBights Ordinance, No. 15 of 1876, the gift of property by thehusband to the wife left the property subject to the husband’sdebts as if the gift had nbt been made. This argument has been metin two ways: First, by the assertion that the conveyance by thehusband to the wife was not a voluntary one. There is evidence thatSadiris and Somiel lived apart from one another. This carriesit back to 1901, so that at the date of the conveyance from Sadiristo Somiel the parties were living apart, and had been doing so forabout two years. The document itself recites that the conveyanceis made in consideration of. the payment of Bs. 500, and it goes onto say that the conveyance was for the purpose of paying a debtdne by Sadiris to a person mentioned in the deed. Counsel for theappellant contended that this meant that Somiel had to pay a debt.
« (7W) 14 N. L. R. 177,* {1918) 20 N. L. R, 270.
* {1919) 7 O. W. B. 97.
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It was contended on the other aide that it is merely a descriptionof the destination of the Rs. 600, the consideration mentioned in thedeed. Whichever be the correct interpretation, it still leaves theconsideration mentioned in the deed (Rs. 600) intact. It was thenargued that by a presumption of law this must be presumed to be thehusband’s money, and therefore the debt was a voluntary one. Thispresumption of law seems in this case to be met by the natural' presumption arising from the oircumstances that Sadiris and hiswife were living apart, and that the money was the property ofSomiel obtained independently of her husband, and property towhich she was separately entitled. It would seem, therefore, thatthe conveyance of Sadiris was not a voluntary conveyance, and thatsection 13 of the Ordinance No. 16 of 1876 would not apply. Evenassuming that the conveyance were a voluntary conveyance, stillit would be subject to the husband’s debts, and Somiel should havehad notice when the debt* was claimed and the bond put in suit.In the circumstances, I see no reason to interfere with the judgmentappealed from, and would dismiss the appeal, with costs.
Pobteb J.—I agree.
Appeal dismissed.
1922.
JSrazs J.
Fernandov. Silva