Hulme-King v. de Silva.
[In the Privy Council.]
1936 Present: Lord Atkin, Lord Maugham, and Sir Sidney Rowlatt.HULME-KING v. DE SILVA.
Husband and wife—Action for divorce—Decree nisi in favour of husbandwith order for settlement out of wife’s property—Appeal from decree—Settlement pending appeal and before decree nisi was made absolute—Validity of agreement—Married Women’s Property Ordinance, No. 18of 1923, s. 5—Adjustment of decree—Civil Procedure Code, s. 349.
The plaintiff-respondent obtained a decree nisi lor divorce againsthis wife the defendant-appellant on December 15, 1924. By that decreethe plaintiff further obtained a direction. that a settlement be madeout of the property of the defendant to secure to him a monthly incomeof Rs. 1,000 ; and also a sum of Rs. 10,000 damages against the seconddefendant, the co-respondent. From the decree all parties appealed.On October 27, 1925, the Supreme Court varied the decree of theDistrict Court by reducing the monthly income to be secured to theplaintiff to the sum of Rs. 400 and the damages payable by the co-respondent to Rs. 2,500.
On November 30, 1925, the plaintiff, who was dissatisfied with thereduction of the monthly income secured to him, obtained from theSupreme Court conditional leave to appeal to the Privy Council againstthe judgment of the Supreme Court.
On November 6, 1925, the defendant-appellant applied by motion inthe District Court of Colombo that the decree nisi of divorce be madeabsolute in accordance with sections 604 and 605 of the Civil ProcedureCode. The plaintiff-respondent objected to the motion on the footingof the proposed appeal to the Privy Council and the District Courtdeclined to make the decree absolute.
At this stage the disputes between the plaintiff and the defendantswere compromised by an agreement No. 326 dated February 4, 1926,which was notarially attested. Under it the defendant agreed, interalia) to pay to the plaintiff Rs. 750 per mensem and to execute as securityfor such payment, a primary mortgage of certain property belongingto the defendant. The plaintiff also agreed that he would consent tothe appeal of the defendant against the order of the District Courtrefusing to make the decree nisi absolute being allowed. On February18, 1926, mortgage bond No. 329 was executed by defendant’s attorneyin compliance with the agreement.
Held, (in an action brought by the plaintiff to recover arrears ofmoney due under the instruments) that the agreement was notcontrary to public policy.
Held, further, that the agreement was enforceable although it wasentered into before the decree nisi was made absolute, and whilst therelation of husband and wife still subsisted between the parties. Undersection 5 of the Married Women’s Property Ordinance, No. 18 of 1923,the wife is under no disability as regards coverture in entering intosuch a settlement with her husband.
There is nothing either in the law or practice to prevent an appli-cation, under sections 604 and 605 of the Civil Procedure Code for themaking of a decree absolute, being made by the innocent or by theguilty spouse.
The provisions of section 349 of the Civil Procedure Code regardingthe certification to Court of a payment or adjustment of a decree out ofCourt apply only to decrees for payment of money and the agreementwas not an adjustment of a decree which required to be certified in termsof section 349 of the Civil Procedure Code.
Delivered by LORD MAUGHAM.—Hulme-King v. de Silva.
^ PPEAL from a judgment of the Supreme Court.*
February 27, 1936. Delivered by Lord Maugham.—
This is an appeal from a decree of the Supreme Court of the Islandof Ceylon dated March 28, 1934, affirming a decree of the District Courtof Colombo dated April 5, 1933. The action was one in which therespondent was the plaintiff and the appellant was the defendant. Therespondent was the husband of the appellant until the decree absolutepronounced by the Supreme Court on May 18, 1926, in certain divorceproceedings brought at the instance of the respondent.
The action which led to the present appeal was commenced by therespondent by plaint dated May 11, 1932, in which the respondentclaimed from the appellant a sum of Rs. 12,118 under and by virtue of anagreement No. 326 dated February 4, 1926, and a mortgage bond No. 329dated February 18, 1926. Of the sum named Rs. 11,500 were arrearsof monthly payments due from the appellant to the respondent by virtueof the said instruments. The balance claimed was for interest. Thecircumstances under which the said instruments were entered into arenot in dispute. The parties were married on May 10, 1915. On Decem-ber 15, 1924, the respondent in an action in the District Court of ColomboNo. 10,899 obtained a decree nisi for divorce against his wife, the firstdefendant. By that decree the respondent further obtained undersection 617 of the Civil Procedure Code of Ceylon a direction that asettlement be made out of the property of the appellant to secure to therespondent a monthly income of Rs. 1,000. There was a second defendant,Mr. Lister Hulme-King, a person with whom the appellant was allegedto have committed adultery, who was ordered to pay to the respondentRs. 10,000 as damages. From the said decree of December 15, 1924,all the parties appealed. The issue of adultery was, however, no longercontested on such appeal. On October 27, 1925, the Supreme Court byits judgment varied the decree of the District Court by reducing thedamages payable by the second defendant to the sum of Rs. 2,500 and byreducing the monthly income to be secured by the settlement to therespondent to the sum of Rs. 400.
On November 30, 1925, the respondent, who was dissatisfied with thereduced monthly income secured to him, obtained from the SupremeCourt conditional leave to appeal to His Majesty in Council against thelast-mentioned judgment and final leave to appeal was granted onFebruary 2, 1926. Previously to that date, namely, on November 6,1925, the appellant applied by motion in the District Court of Colombothat the decree nisi of divorce dated December 15, 1924, be made absolute,in accordance with sections 604 and 605 of the Civil Procedure Code.The respondent objected to this course on the footing of his proposedappeal to His Majesty in Council, and the District Judge on November 10,1925, declined to make the decree absolute. The appellant filed apetition of appeal to the Supreme Court against that order. It was atthis stage that the disputes between the appellant and the respondentwere compromised by the agreement No. 326.
The agreement was made at Colombo on February 4, 1926, between therespondent and the appellant and it is notarially attested. It recites
* 36 N. L. B'. 57.
Delivered by LORD MAUGHAM.—Hulnve-Ktiig v. de Silva.
the marriage of the parties on May 10, 1915, the proceedings in divorcein the District Court of Colombo, and the order made thereon, the appealto the Supreme Court, the order of the Supreme Court, the applicationby the present respondent for leave to appeal to His Majesty in Council,and that the respondent and the appellant had agreed to effect a com-promise regarding the monthly allowance payable to the respondentand to settle all matters and disputes between them. By clause 1 theappellant agreed to pay to the respondent Rs. 750 per month com-mencing on January 1, 1926, and to execute as security for such paymenta primary mortgage of certain property belonging to the appellant.By clause 2 the appellant agreed to pay to the respondent Rs. 6,000 infull settlement of the monthly allowance due to him up to December 31,1925. By clause 3 the respondent agreed to pay to the appellant hertaxed costs of appeal in the original action. By clause 4 he agreed towithdraw his appeal in another action between the parties. By clause5 the respondent agreed to renounce his right to any movable propertyof the appellant. By clause 6 he agreed to consent to the appeal of theappellant against the order of the District Court dated November 10,1925, being allowed, the parties bearing their own costs ; and by clause 7he agreed not to prosecute his appeal to His Majesty in Council againstthe judgment of the Supreme Court so far as it affected the appellant.Clause 8 gave the respondent the right in the event of default by theappellant in payment of the monthly payments to apply to the District .Court for the appointment of a receiver.
On February 18, 1926, the mortgage bond No. 329 was executed bythe attorney for the appellant in compliance with clause 1 of the agree-ment.
On May 18, 1926, the Supreme Court gave judgment in the appellant’sappeal against the order of the District Court dated November 10, 1925,refusing the decree absolute. The respondent by his counsel consentedto the appeal being allowed, in other words, consented to the applicationby the appellant to have the decree made absolute. The SupremeCourt dealt with the appeal to the Privy Council and stated that thequestion as to whether or not the marriage should be dissolved was nolonger in issue. Garvin J. further observed as follows : —
“ That appeal cannot in any way affect the question of the dissolu-tion of the marriage between the parties. The provisions relating tomatrimonial actions seem to indicate that in the case of an action for adissolution of marriage the order directing such marriage to be dis-solved should be embodied in a decree nisi. At the expiration of threemonths in the absence of any objection, the Court is required to make thedecree so entered absolute. ”
He concluded by saying that he saw no reason why the decree nisi shouldnot be declared absolute. The decree absolute was made.
After the said judgment and order of the Supreme Court the appellantmarried Mr. Lister Hulme-King, the second defendant above referred to.She paid the respondent, who had complied with all his obligationsunder the agreement, the monthly sum of Rs. 750 up to December,1930, and Rs. 500 out of the allowance for the month of January, 1931 ;
SJ. X B 32999 ( 1 /54 )
Delivered by L.ORD MAUGHAM.—-Hv.lme~K.ing v. de Silva.
but she thereafter refused to make any payment to the respondent, andthis action was accordingly commenced to recover the amount of suchmonthly payments as were in default, together with interest.
On April 5, 1933, the District Judge decided the various points whichhad been raised by the appellant in a sense favourable to the respondent,and granted him a decree for the relief he claimed. He also dismissed theclaim of the appellant in reconvention, a claim by the appellant to recoversums already paid by her under the agreement No. 326. It may bestated here that counsel for the appellant did not dispute this part ofthe case, and their Lordships need not further refer to it. The appellantappealed to the Supreme Court, who on March 28, 1934, delivered theirjudgment. In that appeal the appellant relied on three contentionssubstantially those on which he relied before their Lordships. Thelearned Judges, consisting of Garvin, Senior Puisne Judge, and Poyser J.unanimously decided against the contentions raised on behalf of theappellant and dismissed the appeal. It is from that decision that theappellant has appealed to His Majesty in Council.
Three points were taken by the appellant before their Lordships.First, it was said that the agreement No. 326 and the bond No. 329executed in pursuance thereof were void as being contrary to publicpolicy. Secondly, it was argued that the said agreement, having beenentered into before the decree absolute and therefore whilst the relationof husband and wife still subsisted between the parties and without thesanction of the Court was unenforceable under the law of Ceylon. Thirdly,it wa contended that the agreement was an “ adjustment ” of a decreewithin the meaning of section 349 of the Civil Procedure Code, andnot having been certified to the Court whose duty it was to execute thedecree could not be recognized by any Court and therefore could not bemade the basis of an action.
The first point appears to be based on the suggestion that the agree-ment No. 326 amounted in substance to a bargain for the sale of thedecree absolute, or, more accurately, amounted to an agreement by thehusband for a pecuniary consideration not to oppose an application bythe wife for an order that the decree nisi should be made absolute. Ifthe suggestion were well founded in fact the point would no doubt call forcareful consideration ; but in the view of their Lordships it is not. Anumber of English authorities were referred to, but the law of Ceylon inregard to making a decree absolute rests on section 605 of the CivilProcedure Code and differs in an important respect from the Englishlaw and well settled practice. The application in England can only bemade by the innocent party. In Ceylon the relevant section is in theseterms : —
“ 605. Whenever a decree nisi has been made and no sufficientcause has been shown why the same should not be made absolute asin the last preceding section provided within the time therein limited,such decree shall on the expiration of such time be made absolute. ”
If the conditions have been complied with (i.e., if no cause has beenshown and the time fixed has elapsed) the Court is bound to make thedecree absolute, and it has been held that in Ceylon there is nothingeither in the law or the practice to prevent the application being made
Delivered by LORD MAUGHAM.—Hulme-King v. de Silva.
by the innocent or by the guilty spouse. Their Lordships see no reasonfor differing from this view and indeed they were not invited to hold thecontrary. The conclusion is inevitable that all that the innocent husbandagreed to do as regards the decree absolute was to abandon an appealto the Privy Council and not to oppose an application by the wife, theresult of which was in the circumstances inevitable. The language usedby Chief Puisne Judge Garvin in delivering judgment aptly describesthe position : —
“It is not suggested that even at the date of this agreement therewas any fact or circumstance which should in the interests of justicehave been brought to the notice of the Court which had been sup-pressed or that the parties had agreed to suppress any such facts . … Now there is not the slightest suggestion of any collusion or even
impropriety in regard to the institution of these proceedings or theirconduct up to the time of decree nisi and until its confirmation by theSupreme Court. And moreover there is not even a suggestion thatthere was any collusion for any improper purpose at the time this agree-ment was entered into. In consenting not to oppose the appeal'fromthe order made by the District Court upon the defendant’s applicationfor a decree absolute the plaintiff was only doing indirectly that whichhe was entitled to do himself …. Since the defendant hadalready herself taken steps to that end I can see no impropriety in theplaintiff consenting that such a decree should be entered.”
Their Lordships have no difficulty in agreeing with the Supreme Courtthat there was nothing in the agreement or in the circumstances underwhich it was entered into, which would justify the Court in holding thatit had any improper object or purpose or that it was in any way contraryto public policy.
The second point may also be concisely dealt with. Their Lordshipsaccept the view that prior to the decree absolute the relation of husbandand wife existed between the appellant and the respondent. Whatevermay have been the capacity of a wife in Ceylon prior to the year 1923 asregards a disposition, transfer or settlement of movable or immovableproperty in favour of her husband, their Lordships can see no reason fordoubting that under section 5 of Ordinance No. 18 of 1923, a wife is underno disability as regards coverture in disposing of her movable or im-movable property in favour of her husband. Section 5 of the Ordinance(borrowed as will be seen from section 1 of the Married Women’s PropertyAct, 1882) is in these terms : —
“ (1) A married woman shall, in accordance with the provision ofthis Ordinance, be capable of …. disposing by will or other-wise of any movable or immovable property as her separate property inthe same manner as if she were a /erne sole, without the interventionof any trustee.
“ (2) A married woman shall be capable of entering into, andrendering herself liable in respect of and to the extent of her separataproperty on, any contract, and …. of being sued, either incontract or in tort or otherwiwse, in all respects as if she were a■feme sole.”
68 Delivered by LORD MAUGHAM.—Hulme-King v. de Silva.
There is nothing in this section or in the Ordinance or in the Roman-Dutch law which justifies an exception from the generality of the pro-visions of transactions between spouses. It may be observed by wayof illustration that dispositions between husband and wife were illegalat Common law in England before January 1, 1883, but made legal bi-section 1 of that Act by words not distinguishable as regards their effectfrom section 5 of the Ordinance. Their Lordships feel a difficulty inrelying on the decision of the Board in Soysa v. Soysa since that case wasbased on section 13 of Ordinance No. 15 of 1876, which was repealed bysection 4 of Ordinance No. 18 of 1923. The question, however, is now freefrom doubt under section 5 of that Ordinance and this point plainlyfails.
The third point relied on by the appellant depends upon the trueconstruction of section 349 of the Civil Procedure Code, a section whichhas occasioned considerable difficulty both in Ceylon and in India, wherea provision very similar is in force. Section 349 is as follows : —
“ If any money payable under a decree is paid out of Court, or thedecree is otherwise adjusted in whole or in part to the satisfaction of thedecree-holder, he shall certify such payment or adjustment to the Courtwhose duty it is to execute the decree. The judgment-debtor may alsoby petition inform the Court of such payment or adjustment, and applyto the Court to issue a notice to the decree-holder to show causeon a day to be fixed by the Court why such payment or adjustmentshould not be recorded as certified. And if after due service of suchnotice the decree-holder fails to appear on the day fixed, or havingappeared fails to show cause why the payment or adjustment should notbe recorded as certified, the Court shall record the same accordingly.No such payment or adjustment shall be recognized by any Court unlessit has been certified as aforesaid.”
The appellant contends that the agreement No. 326 was an adjustmentof a decree of Court, that it was not certified to the Court whose dutyit was to execute the decree, and that the agreement therefore cannot berecognized by any Court. A number of questions arise on this contention.
Does the section apply to any decree except a money decree ? Is theagreement “an adjustment” of the decree? Ought the final words“ no such payment or adjustment shall be recognized by any Court unlessit has been certified as aforesaid ” to be construed as a rule of evidenceexcluding every evidence of the payment or adjustment of a decreeunless it has been certified, or have they the effect of rendering the pay-ment or adjustment wholly void and of no effect unless duly certified ?
In the view of their Lordships the section relates only to decrees for thepayment of money. It begins with the words, “ If any money payableunder a decree is paid out of Court ”, and the next words are, “ or thedecree is otherwise adjusted ”. “ Otherwise ” grammatically can onlymean “ otherwise than by payment out of Court ”, and no doubt paymentinto Court does not require a certificate. If we add these words thesection would run, “ If any money payable under a decree is paid out ofCourt or the decree is adjusted otherwise than by payment into Court orout of Court, &c.” The definite article before the word “ decree ” and
119 N. L. R. 146.
Delivered by LORD MAUGHAM.—Hulme-King v. de Silva.69
words which seem to assume the possibility of the judgment-debtorpaying money out of Court in satisfaction of the decree point stronglyto the conclusion that the decree which may be adjusted is one for thepayment of money. The matter may be tested by applying the factsof the present-case. The decree in question so far as “ the decree-holder ”and “ the judgment-debtor ” (terms which are defined in the Code) areconcerned is for the execution by the latter of a settlement securing tothe former a certain monthly sum. If we introduce these words into thefirst sentence we get the following : “ If any money payable under adecree is paid out of Court or a decree for the execution of a settlementis adjusted otherwise than by payment out of Court, &c.”—a strangesequence of ideas where the decree is not one for the payment of money,for one would not expect a decree for the execution of a deed, or indeedfor any specific relief (e.g., the delivery up of a chattel or of land)to be “ adjusted ” in the ordinary course by a payment out of Court.Nor does the difficulty stop there. The consequence of the lack of acertificate is that “the payment or adjustment is not to be recognizedby any Court ”. Suppose the decree is for the execution of a deed tocarry out defined objects and that the parties by mutual agreement havevaried the substance of it in some respects. On the assumption thatsuch a decree is within the section, and that what has been done isan adjustment, the Court is apparently precluded from recognizing thisadjustment, and it would seem as though the Court executing the decreewould be bound to require a deed to be executed in exact conformitywith the decree at the suit of the decree-holder whose default hasoccasioned the whole difficulty, and even though in the result he wouldor might become apparently entitled to some at least of his relieftwice over.
It is not difficult to see good reasons for the section in relation to moneydecrees in a country where experience may have shown that after sucha decree disputes constantly arose between the parties as to whetherpayment in satisfaction had in fact been made wholly or in part, so thatthe action had in effect to be tried over again. On the other hand, harshas the rule may be, there is no practical difficulty in making a judgment-debtor pay money twice over if he has neglected a certain precaution ;but it seems very difficult to think that the legislature has contemplateda position in which the Court would require a man to deliver up movableor immovable property which he has already parted with to the judgment-creditor and would be precluded in the exercise of its great powers asregards execution from “ recognizing ” the true facts.
Their Lordships are conscious that the latter of these difficulties mightbe avoided by attaching a somewhat artificial meaning to the words“adjustment” and “adjusted”. If the-Court is at liberty to recognizeanything done by the judgment-debtor in conformity with the decree(other than a payment), the effect df any partial compliance with itwould have to be considered before executing the decree. This conten-tion has considerable force, but without expressing a final opinion on ittheir Lordship must observe that such a construction would not helpthe appellant, since the settlement executed in the present case is in
Kulatunga v. Simon.
substance a full compliance with the decree ; the objection to the agree-ment and the mortgage bond is that they effect something more in favourof the decree-holder than the decree required.
Accepting then the view that the section relates only to decrees forthe payment of money, a view sufficient for the purposes of the presentappeal, their Lordships do not propose to deal with the other questionswhich arise on the construction of the section, merely observing that thisis not to be taken as implying in any way an opinion adverse to thatexpressed in the Supreme Court in regard to them.
In order to preclude misconception their Lordships think it right toobserve that in the above they have been dealing only with the sectionas it exists in the Civil Procedure Code of Ceylon and not with the corre-sponding section (section 258) of the Indian Civil Procedure Code,now embodied in Order 21, r. 2 of the First Schedule thereto. That rulehas repeatedly been amended in some important respects end it is notnow in the sara.e form as the Ceylon section. It has been the main subject.discussed in more than a hundred cases in the various Courts of Indiawith results that are by no means uniform. Their Lordships contentthemselves with saying that the conclusion at which they have arrived,namely, that section 349 of the Ceylon Code relates only to decrees forthe payment of money, agrees not only with the opinion expressed inthe judgment under appeal, but also with the judgments of several of theCourts in India pronounced before the words “ of any kind ” were addedto the words “ where any money payable under a decree ”.
In the result the appellant fails on all three of the points on which sherelies. Their Lordships will humbly advise His Majesty to affirm thejudgment appealed from and to dismiss this appeal with costs.
HULME-KING v. DE SILVA