028-NLR-NLR-V-36-FRADD-v.-FERNANDO_2.pdf
124
Fradd v. Fernando.
1834
Present: Dalton and Akbar JJ
FRADD v. FERNANDO.75—D. C. Colombo, 46,425.
Husband and wife—Married woman’s contract—Consent of husband—Letterfrom husband approving of draft agreement to sell—Matrimonial Rightsand Inheritance Ordinance, No. 15 of 1S76, s. 9.
Where the consent of a husband to ■ r.e disposition of his wife’s propertywas given in a letter written to the latter's attorney, approving of adraft of the agreement to sell the property,—
Held, that there was a sufficient compliance with the requirements ofsection 9 of Ordinance No. 15 of 1876.
Per Dalton J.—It is not necessary that the consent should appearon the face of the document making the disposition or that it should begiven by a writing notarially executed.
HIS was an action brought by the plaintiff, a married woman, claiming
specific performance of an agreement to sell land or in the alter-native, damages in the sum of Rs. 15,000. The only question for decision. was whether the agreement was entered into with the written consent ofher husband and if not whether it was unenforceable. The learnedDistrict Judge held that the consent should appear in the documentmaking the disposition and dismissed the plaintiff’s action.
H. V. Perera (with him H. E. Garvin and D. W. Fernando), for plaintiff,appellant.—The attorney of the plaintiff was acting under a power ofattorney dated March 11, 1925, when he entered into the agreement ofAugust, 1928, for the sale of the property named Bunty’s Nook. Thatpower of attorney had an endorsement by the plaintiff's husband at thefoot of it signifying his consent to his wife selling or otherwise disposingof all or any of her property belonging to her or registered in her name.This is sufficient consent for the purposes of the proviso to section 4 ofOrdinance No. 18 of 1923/ which repeals section 9 of Ordinance No. 15of 1876. Further, the plaintiff’s attorney, while he was negotiating withthe defendant for the sale of Bunty’s Nook, was in communication withthe plaintiff’s husband who was in India. The letters P 1 to P 3 showthat the draft agreement was submitted to the plaintiff’s husband and heapproved of it. No particular form of words is necessary for the writtenconsent required by section 9 of Ordinance No. 15 of 1876 (Ponnammalv. Pattaye ’).
Even asstiming that there is no consent by the plaintiff’s husband, theeffect of the proviso to section 4 ©f Ordinance No. 18 of 1923 is not to makea disposal without her husband’s consent by a woman married beforeOrdinance No. 18 of 1923 of her property acquired before that Ordinancevoid, but only voidable at the instance of the husband. Section 4 ofOrdinance No. 18 of 1923 repealed section 9 of Ordinance No. 15 of 1876, butprovided that the repeal shall not affect any act done, or right or statusacquired whilst the repealed sections were in force. The only rightreserved to the husband by that proviso is the right to restrain his wife
1 IS .V. T.. n. 301.
DALTON J.—Fradd v. Fernando.
125
from alienating her property without his consent. No right is reservedto a third party, and the defendant cannot make use of that proviso to getbehind his agreement with the plaintiff’s attorney on the ground that theplaintiff’s husband had not given his consent.
A. E. Keuneman (with him E. F. N. Gratiaen), for defendant, respond-ent.—With regard to the endorsement on the power of attorney of 1925a general consent in the terms used in that endorsement is not sufficientfor the purposes of section 9 of Ordinance No. 15 of 1876. Consent must beexpress consent in writing by the husband prior to or at any rate con-temporaneous with the execution of the particular instrument involvedand having relation to that instrument. The consent must have specialreference to the particular disposition. (Wickramaratne v. Dingiri Baba1and Ponnammal v. Pattaye 2—Wood Renton J.’s judgment.)
The letters P 1 to P 3 have no reference to this particular agreement andtherefore they cannot constitute a consent by the plaintiff’s husbandwithin the terms of section 9 of Ordinance No. 15 of 1876.
Plaintiff’s attorney in entering into this agreement has exceeded hisauthority. The power of attorney is only to sell the property. Such apower of attorney does not authorize the holder to enter into an agreementto sell at a future date. The terms of a power of attorney must be strictlyconstrued.
With regard to section 4 of Ordinance No. 18 of 1923 and the provisoto that section, see In re Application of R. Caroline Nona3.
Cur. adv. vulx.
July 30, 1934. Dalton J.—
The question to be decided in this case, so far as this appeal is concerned,is whether the plaintiff, a married woman, entered into the agreement ofAugust 28, 1928, the breach of which is the foundation of this claim, tosell to defendant a property in Nuwara Eliya, named Bunty’s Nook, withor without the written consent of her husband.
The plaintiff was married in the year 1915, and acquired the propertyin question on December 6, 1920. Under the provisions of section 9 ofthe Matrimonial Rights and Inheritance Ordinance; No. 15 of 1876, shehas full power of disposing of and dealing with her property by any lawfulact inter vivos with the written consent of her husband, but not otherwise.
Ordinance No. 15 of 1876 has been amended by the Married Women’sProperty Ordinance, No. 18 of 1923. Section 9 and other sections of theearlier Ordinance are repealed in so far as they relate to persons marriedon or after June 29, 1877. It is provided, however, that the repeal shallnot affect any act done, or right or status acquired whilst the repealedsections were in force.
The plaintiff resided at the time of this action, and apparently hasbeen residing for some years, in England. In November, 1920, sheappointed her brother-in-law, Leonard Fradd, as her attorney in Indiaand Ceylon, amongst other things to sell, transfer, mortgage, lease orotherwise deal with her property in Ceylon. On March 11, 1925, sheexecuted another power (exhibit P 1) in favour of the same person,
1 2 C. A. C. 132.2 23 Lm R. 206.
»SC. L. R. 46.
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DALTON J.—Fradd v. Fernando.
confined to Ceylon and apparently not in such wide terms, authorizinghim amongst other things to sell at such time or times as he shall thinkfit any of her property in Colombo or Nuwara Eliya. This latter powerat the foot carries the following endorsement by the plaintiff’s husband,signed by him on the day following its execution: —
“ I, the above-named, Percy Harold Fradd, hereby approve andconfirm the above-written power of attorney and consent to my wifethe above-named, Violet Loraine Fradd, selling or otherwise disposingof all or any property belonging to her or registered in her name andJ hereby agree to her said attorney, the said Leonard Collins WilliamFradd, doing or causing to be done all or any of the acts, matters andthings therein set out.
Dated this 12th day of March, 1925.(Sgd.) Percy H. Fradd."
This endorsement at the foot of the power was duly witnessed andnotarially attested. I would add here that there is no suggestion in thiscase that the later power cancelled the earlier one.
In 1928 plaintiff’s husband was employed in India, his wife still livingin England. He returned, however, to England in 1929, because he wasill, and he is now stated to be a very sick man in England. Hence he isnot available as a witness. The attorney of his wife in Ceylon in 1928entered into negotiations with the defendant for the purchase by thelatter of the property Bunty’s Nook at Nuwara Eliya. He was incommunication with his brother in India on the subject, and seems tohave taken his instructions from him. Two letters, proved to have beenwritten by the plaintiff’s husband from India to the attorney in Ceylon,were produced, dated July 12, 1928, and July 19, 1928, respectively, forthe purpose of proving that the former had consented to the sale. Theadmission of the first letter (exhibit P 2) was objected to by defendant’scounsel, on the ground, set out on the record, that this was hearsayevidence. The objection was upheld, but counsel for defendant in thisCourt concedes that he can formulate no sufficient ground to supporteither the objection to the admission of the document or the decision ofthe trial Judge in upholding the objection. Although rejected, theletter P 2 was marked and is part of the record of the lower Court ofadmitted evidence sent up to this Court. Having regard to the fact thatit should not have been rejected, it may now remain part of the record.The second letter (exhibit P 3) was objected to for the same reason, butthe objection was not upheld, the trial Judge holding that the portionrelating to this transaction was admissible. He states later, however, thathe has strained a point in favour of the plaintiff in admitting documents,and I take it he is referring to his ruling as regards this second letter.The signature to the letters being proved, they were both admissible forthe purpose for which they were tendered.
The material part of the letter P 2 is as follows : —
“My dear old Leonard,—Glad of yours to-day to see that you hadbeen to Macks and had come to an arrangement over B. Nook, as I wasvery afraid it was going to fall through. He must have occupied thehouse now fully four months so he will be owing quite a bit, and I hope
DALTON J.—Fradd v. Fernando.
127
you will see he pays this up promptly as 1 ought to send dear oldLoraine home £40, and this money owing by Fernando would justabout do this. I should like to see the draft agreement if possiblebefore it is signed as I think there should be some penalty clause incase he backs out in the end and a clause should be inserted as regardskeeping the place in good condition ….
Yours, &c.,(Initialled) P. F.”
“ Macks ” referred to in the letter are the proctors for Percy Fradd, thehusband, his wife, and Leonard Fradd, and they had been so for someyears. “B. Nook” is the property Bunty’s "Nook, the subject of theagreement. “ He ” and ** Fernando ” are the defendant.
The attorney is unable now to produce the letters he sent to his brotherin India or copies of them, but exhibit P 3 shows he replied to this letterP 2, and he sent the draft agreement to him as requested. The materialpart of P 3, dated July 19,1928, is as follows : —
“This morning, old dear, I got your letter with the draft deed ofBunty’s Nook, which I have carefully read through, and must say itappears quite fair. The only thing, the deed starts from August 1,which is alright if he is paying rent from the time he took over up tothe end of July, which must be five months. I am therefore returningthe deed, old dear, and shall be glad when it is all over.”
Thereafter, on August 28, 1928, the indenture or agreement now suedon was executed by the plaintiff by her attorney and by the defendant.The attorney states that, so far as he knows, no change was made in thedraft agreement returned from India by his brother. No suggestion wasmade to him that the indenture which was executed did not conform inall respects to that draft agreement. If there was any such change afterthe agreement came back from India, it was presumably known to thedefendant or his proctors, but because the witness did not produce thatdraft agreement in the witness-box to compare with the indenture, it issuggested there is no evidence to show that plaintiff’s husband agreed tothe indenture which was actually executed by the parties to it.
The trial Judge has held, with regard to the power of attorney P 1,and the endorsement thereon, that a general consent in the terms usedthere is not a sufficient compliance with the provisions of the law containedin section 9 of the Ordinance. In addition, the indenture of August 28,executed by the attorney states in the attestation clause that it wasexecuted by him under the powers given him by the power of November,1920. The authorities, I think, would go to support the conclusion thatsuch a general'consent is not sufficient for the purpose for which it waspresumably intended, but I do not find it necessary to deal with thismatter further as I find that the requisite written consent was givenlater, just prior to the execution of the agreement.
The trial Judge has further held that the consent of the husband mustappear on the document disposing of or dealing with the property ; ifconsent is given prior to its execution, that fact must be referred to inthe document, and the written consent itself must be filed with the
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DALTON X-^-frtfdd if. Fernando.
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document. By the word “ filed ” ;^e may possibly mean attached to itin some way or other. He hasSnot rejected the attorney’s evidence thathe submitted the draft agreement to his brother and received that agree-ment back again, and that so far as he, the attorney, is aware, theindenture executed conformed to that draft agreement without anychange. Even if the evidence be accepted, he finds, I understand, thatthe letter P 3 which he admitted in evidence did not conform to therequirements of section 9, and was no sufficient consent of the husbandas is required by law. He accordingly answered the question in defend-ant’s favour and dismissed plaintiff’s action. The latter now appeals.
The nature of the consent required in such a case as this has been thesubject of previous decisions of this Court.
The case specially relied upon by defendant’s counsel in the course of;his argument in this Court is Wickramaratne v. Dingiri Babadecided byWood Renton and Pereira JJ. There Wood Renton J. held that themartial consent required by section. 9 is a consent with special referenceto the particular disposition, the validity of which is in question. Healso quotes a passage from his own judgment in the case of Ponnammal v.Pattaye *, to which case I refer later. That quotation is as follows : —
“ I think that in order to satisfy the provisions of section 9 of Ordi-nance No. 15 of 1876 there must be an express consent in writing bythe husband prior to, or at any rate contemporaneous with, theexecution of the particular instrument involved, and having relationto that instrument
Pereira J. goes considerably further than Wood Renton J. in his judg-ment. He appears to hold that the husband’s written consent to thedisposition of the particular property dealt with must be given at or beforesuch disposition, and by means of a duly executed notarial instrument.That he finds is the combined effect of section 9 of Ordinance No. 15 of1376 and section 2 of Ordinance No. 7 of 1840.
The case of Ponnammal v. Pattaye (supra) was decided by a Court ofthree Judges—Hutchinson C. J. and Middleton J., Wood Renton J. dissenting.Prom that decision it would seem that no particular form of words isnecessary for the written consent. The deed in question there wasexecuted by the wife in the presence of two witnesses, and immediatelybelow the name of the second witness was the mark of the woman’shusband. The notary’s signature came below the mark. There appearsto be nothing in the body of the deed stating that the husband hadconsented to the disposition or that he by affixing his mark was givinghis consent. The Court had to decide the question whether in the cir-cumstances a husband by simply signing a conveyance given by his wifeto a purchaser thereby gave his written consent to the transfer under theprovisions of section 9. The execution of the deeds was admitted at thetrial and no evidence was called to prove it or as to the circumstancesattending the execution. Hutchinson C.J., in pointing out that thereseemed no reason why the husband should have signed the deeds exceptfor the purpose of signifying his consent to them, held that the only1 2 C. A. C. 132.i 13 N. L. R. 206.
DALTON X—fya&d Ju. Fernando.129
possible inference as to the husband^ Signature which could be drawnfrom an inspection of the deeds was /that he signed to show his consent,and that it was not absolutely necessary to add the words “ I consent **or any other words to that effect.
Middleton J. answered the question in the same way, holding that,apart from the attestation clause subscribed by the notary, there was anunrebutted presumption amounting to proof that the husband, bysigning the deed in question, consented to its contents. Wood Renton J.in dissenting from this conclusion held that if the husband was merelysigning as a witness, the point was governed by authority which shouldbe followed, to the effect that such a signature is insufficient for thepurpose of satisfying section 9. If he was in fact by his signature express-ing consent to his wife’s conveyance, he.held the requirement of section 9had still not been satisfied. Then follows his opinion I have quotedabove, to the effect that there must be an express consent in writing,leaving no need or room for oral evidence or conflicting inferences.
Although the judgment of Wood Renton J. was a dissenting judgment,Mr. Keuneman relied upon it also to support his argument, urging thatthe method of approach used by Wood Renton J. in construing the law,and his view of the terms and requirements of the section had not gonebeyond anything the other Judges had taken or said in their judgments.He suggested they were only in disagreement as to the application of theprinciples to be applied, Hutchinson C.J. holding there could be only onepossible inference from the presence, in the circumstances, of the husband’ssignature on the document, Wood Renton J. on the other hand holdingapparently that there were other possible inferences as to its meaning.I think there is foundation for this argument. Counsel further concededthat he could not uphold in its entirety the trial Judge’s view of therequirements of section 9, but he maintained the consent must be to theactual disposition, all the terms of which including price must be settledbefore the consent is given.
It then remains to apply the law as above construed to the facts of thiscase. The consent of the husband to the sale of Bunty’s Nook by hiswife’s attorney is in writing in his letters produced, the consent is directedto the wife’s attorney, and is with reference to the particular dispositionin question in this case. The draft agreement was seen by the husbandand approved of by him just prior to the completion of the agreement.These facts are proved and none of them are denied. The reference inthe second letter to the payment of rent by the defendant from the timehe took over cannot, in my opinion, be taken to be, as was suggested,a condition upon which approval to the draft agreement depended. Itis referred to presumably as a matter to which the attorney’s notice iscalled and to which he should attend. The draft is returned with thehusband’s consent to its contents ; and he adds he will be glad when thematter is completed. The only reasonable inference to be drawn fromthe evidence, in my opinion, is that the husband consented to the sale ofthe property in question to the defendant and gave that consent in writing.I find no room for any conflicting inference. That written consent is,in my opinion, a sufficient compliance with the requirements of section 936/12
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of Ordinance No. 15 of 1876. This case, so it seems to me, is a strongerCase than Ponhammal v. Pattaye above cited. I would further add thatI can find nothing in the law as laid down in that case in the dissentingjudgment of Wood Renton J. inconsistent with my conclusion. With theopinion of Pereira J. that the consent must be notarially attested I regretI am not able to agree, nor has that opinion been urged upon us in thiscase as one we should follow. The view of the trial Judge that theconsent should be referred to in the document making the dispositionand be filed with it in some way may be a counsel of perfection,but I can find nothing in section 9 of the Ordinance making any suchrequirement.
For the above reasons I have come to the conclusion that the questionbefore this Court must be answered as follows : That the indenture oragreement of August 28, 1928, was entered into by plaintiff with thewritten consent of her husband.
It is not necessary therefore to consider the further question raisedbefore us that the requirements of section 9 of Ordinance No. 15 of 1876in respect of written consent being obtained by the wife to any dispositionof her property inter vivos are repealed by section 4 of Ordinance No. 18of 1923. I might point out, however, that this question appears to havebeen already answered by this Court in the case of In re Application ofR. Caroline Nona
It was agreed in the lower Court that if the indenture was held to bevalid, the damages to which plaintiff is entitled in respect of her claimshould be fixed at the sum of Rs. 12,500 with interest as claimed, plaintiffwaiving her claim for rent and further rent, and defendant withdrawing,his claim in reconvention.
Plaintiff is therefore entitled to judgment in the sum so agreed uponwith costs of suit. A decree should be entered accordingly, the decreealready entered being set aside. She is also entitled to her costs ofappeal.
Akbar J.—
The appellant sued the defendant on an agreement to sell her landdated August 25, 1928, claiming specific performance of this agreementor in the alternative damages in the sum of Rs. 15,000. The partiesagreed that if the agreement was held to be valid the damages were to befixed at Rs. 12,500 with interest as claimed. The plaintiff waived herclaim for rent and the defendant withdrew his claim in reconvention.The only question which arises in this appeal is whether the agreementwas entered into by the plaintiff without the written consent of herhusband, and if so it was invalid and unenforceable. The plaintiffis a married woman and under section 9 of Ordinance No. 15 of 1876the written consent of her husband was necessary to validate the agree-ment to sell. Section 9 of Ordinance No. 15 of 1876 had been repealed bysection 4 of Ordinance No. 18 of 1923, at the date of the agreement, butby the proviso to this section the right of the husband to prevent thedisposal of any immovable property belonging to the wife by the wife
1 6 C. L. R. 46.
AKBAR J.—Fradd v. Fernando.
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(which had accrued to him owing to his marriage with this wife duringthe time Ordinance No. 15 of 1876 was in force) was kept alive (seeIn re R. Caroline Nona') .*
Plaintiff’s attorney, however, who is a brother of the plaintiff’s husbandgave evidence and produced three documents namely P 1, P 2, and P 3.
The effect of his evidence is that plaintiff’s husband who was in Indiaat the time had written to the attorney for the draft of the agreementto sell and that the copy had been sent to him and that he had approvedof it.
In my opinion the District Judge was wrong in rejecting P 2. BothP 2 and P 3 prove the main issue of fact in this case, namely, that plaintiff’shusband had expressly approved of the draft agreement to sell, on whichplaintiff sues in this case. It was held by a majority of the Judges in afull bench case (Ponnammal v. Pattaye ’) that the question whether thetransaction of the wife relating to her immovable property had theexpress written consent of her husband was to be decided in the samemanner as any other question of fact. It is entirely a question ofevidence. The plaintiff’s attorney in his evidence stated that, as far as heknew, the draft agreement approved by his brother was not changedand that it was that draft which defendant signed. The terms of lettersP 2 and P 3 prove to my mind that it was this draft (which was approvedby plaintiff’s husband) which was copied and signed by the defendant.P 1 shows that both plaintiff and her husband and her attorney knew of theimportance of the husband’s written consent to validate any dealings ordisposition of plaintiff’s immovable property.
In my opinion there is ample evidence to enable me to hold that theagreement to sell on which plaintiff claims was entered into by theplaintiff with the written consent of her husband. I would set aside thejudgment of the trial Judge and enter judgment for the plaintiff in thesum of Rs. 12,500 with interest as claimed and costs in both this Courtand the Court below.
Appeal allowed.