016-NLR-NLR-V-10-MARIE-CANGANY-v.-KARUPPASAMY-CANGANY.pdf
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[Full Bench.]
Present: Sir Joseph T. Hutchinson, Chief Justice, Mr. JusticeWendt, and Mr. Justice Wood Renton.
MARIE CANGANYKARUPPASAMY CANGANY.
D. C., Kandy, 16,483.
Mortgage by wife without written consent of husband—Presence of husbandat execution and subsequent recognition of its validity by hvm>—Invalidity—Estoppel—Obligationtorepay—OrdinanceNo. 15 of
1876, s. 9—Evidence Ordinance. (14= of 1895), s. 115.
Wherethedefendantwanpresent at.theexecution ofa mortgage
bond by his wife, and by his subsequent conduct recognized' itsvalidity, and where, after the death of his wife, he was sued asadministrator of her estate on the said bond, and he pleaded thatit was invalid as it was executed without his written consent,—
Held,thatthe pleawasgood andthatthedefendant, who 'was
sued asadministrator,wasnot estoppedbyconductfrom ques-
tioning the validity of the bond.
Where it appeared that the money borrowed by the wife went inpayment of a prior mortgage executed by the wife with. the know-ledge and consent of the husband,—
'Held,thatthe defendant(husband),ashiswife'sadministrator,
was liable to repay the said sum, as her estate was benefited bythe transaction.
Semble (per WoodBenton J.).—Thewritten consent ofthe
husband must be previous to the execution of the mortgage, asthe wopds " but not otherwise ** appear to invest it with thecharacter .pf a condition precedent.
T
HE facts sufficiently appear in the following judgment of theDistrict Judge (J. H. de Saram, Esq.) wgjfc'
“ This is an action on a mortgage executeS/by one Sundaram onthe 2nd September, 1899, in favour of the plaintiff for Rs. 4,5009-
1906.
November 27.
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1006.
November
payable with interest. The claim is for Rs. 6,157.66, which, thedefendant admits is due.
*' Sundaram was a married woman—the wife of the defendant—at the date of mortgage. It is proved they were married according toTamil custom in the year 1880, prior to the execution of the mortgage.She is dead. The defendant is the administrator of her estate.
“ The action is contested on the ground that the mortgage isvoid, the defendant not having given his written consent to it.The objection is founded on the enactment contained in section 9of ‘ The Matrimonial Rights and Inheritance Ordinance, 1876/which is that any woman married after the proclamation of thatOrdinance shall, subject and without prejudice to the trusts of anywill or settlement affecting any immovable property to which shemay be entitled at the time of her marriage, or may become entitledduring her marriage, have as full power of disposing of and dealingwith such property by any lawful act inter vivos with the writtenconsent of her husband, but not otherwise, or by last will withoutsuch consent, as if she were married.
“ The property mortgaged was purchased by Sundaram on the5th July, 1890. The transfer, I understand, is in her favour. Thedefendant admits the money lent by the plaintiff went in paymentof a prior mortgage executed by his wife, with his knowledge andin his presence, in favour of one Mayappa Che tty.
After the mortgage to the plaintiff tea leaf from the propertymortgaged was sold to the superintendent of a neighbouring estate,who, at the defendant’s request, sent the plaintiff cheques for theamounts due, and the plaintiff appropriated the proceeds in repay-ment of advances he made Sundaram, also with defendant’s consent,for the upkeep of the property and in payment of interest due onthe mortgage. It has been proved, though denied by the defendant,that this mode of payment continued after his wife’s death.
** Under these circumstances, it would have been honest for thedefendant to have consented to judgment in favour of the plaintiff.
“ It was conceded by Mr. Beven, appearing for the plaintiff,that the mortgage is invalid for want of the defendant’s writtenconsent, but he argued that, as the defendant was present at the.execution of the mortgage, and consented to it, * though not inwriting, be is estopped from denying its validity.«
“ The case must be decided on this question of estopped respectingwhich tlje second issue was framed, viz.,, whether the defendant isestopped from denying the validity of the mortgage, he havingbeen present at its ex^ition, and raised no objection thereto, andpaid interest thereon. v x
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** This issue admits the defendant's presence at the execution of 1900.the mortgage. He denied it when he gave evidence, but he cannot ^wwn^er 2®-be heard to say that, for his answer—paragraph 4—merely deniesthe materiality of the allegations. in paragraph 4 of the plaint,where the defendant's presence and his raising no objection arepleaded.
On this question of estoppel Mr. Beven cited the dictum ofBonser C.J. in Nicholas de Silva v. Shdik Ali (1). It was arguedthat the Chief Justice's dictum is not binding on me, but it is a dictumwhich I may safely follow, especially as I am in accord with it.
“ The subject of estoppel is dealt with in section 115 of the CeylonEvidence Ordinance, which enacts as follows:—
“ * When one person has, by his declaration, act, or omission,intentionally caused or permitted another person to believe a thingto be true and to act upon such belief, neither he nor his representativeshall be allowed in any suit or proceeding between himself and suchperson or his representative to deny the truth of that thing.'
“ It was argued that this proposition as to estoppel does not arise,because the defendant was not guilty of any neglect of duty, itbeing no part of his duty to warn the plaintiff that the mortgagewas about to be executed by a married woman, without the writtenconsent of her husband. This was, at most, .according to the defen-dant, a mere acquiescence, as distinguished from a breach of dutyto speak.
“ Amfr Ali and Woodroffe, in their Law of Evidence (page 736,edition of 1898), say: * The case must be’such that it-would be fairto interpret the silence into a declaration of the party that he has, e.gno interest in the subject of the transaction. Indeed silence, whenresulting in an estoppel, may not improperly be said to have leftsomething like a representation upon the- mind.
i
“ I have not been able to see the cases cited by them, but in thenote 5 on the same page it is said the subject of silence is illustrated'by the case of Pickard v. Sears (2) and Gregg v. Wells (3), in thelatter of which cases Lord Henman said: ‘ A party who negligentlyor culpably stands by and allows another to contract on the faithand understanding of a fact which he can contradict, cannot afterwardsdispute that fact in an action against the person whom he has himself^assisted ii? deceiving.'
“ ‘ If a person having a right, and seeing another person about tocommit, or in the course of committing, an act infringing upon that.
(1) (1895) 1 N. L. A. 238.(2) 6 4. 4 E. 469.
10 4. 4 A. 90.
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1906. right, stands by in such a manner as really to induce the personNovember 29. committing the act, and who might otherwise have abstained fromit, to believe that he assents to its being committed, he cannotafterwards be heard to complain of the act' (page 787), Then, innote 1 in page 788, it is said, citing an Indian case, “ when, howeverthe doctrine of estoppel is alone invoked, there may be an estoppelby conduct of acquiescence when there is no fraud, and wherethe person estopped has acted bond fide and unaware of his legalrights.''
" On page 748 and 749 Amir Ali and Woodrofie say: “ A personwho by his declaration, act, or omission has caused another to-believe a thing to be true and to act upon that belief must be heldto have done so ‘ intentionally ' within the meaning of the statute,if a reasonable man would take the representation to be true, andbelieve it was meant that he should act upon it. It is not necessary,however, to prove an intention to deceive in order to make a caseof estoppel, nor is it necessary to an estoppel that the personwhose acts or declarations induced another to act must have beenunder no mistake or misapprehension himself. Section 115 doesnot make it a condition of estoppel resulting that such person waseither committing or seeking to commit a fraud, or that he wasacting with a full knowledge of the circumstances and under no-mistake or misapprehension. .What the section mainly regards isthe position of the person who was induced to actt and not the motiveor state of knowledge of the party upon whose representation theaction took place. If the person who made the statements did sowithout full knowledge, or under error, sibi imputet. It may, in, theresult, be unfortunate for him, but it would be unjust, even thoughhe acted under error, to throw the consequences oh the personwho believed his statement and acted on it as it was intended heshould do.'
“ In the present case I believe the defendant was unaware of his> legal rights, and that he had, at the time of the execution of the,mortgage, no intention to defraud the plaintiff, but he is by hisacquiescence estopped from denying the validity of the mortgage..It would be inequitable to hold otherwise.
41 I answer the second issue in the affirmative and the third inthe negative; the defendant cannot repudiate the act4 of hisintestate.*
" I give the plaintiff judgment for Rs. 6,157.66, with interest onRs, 4,500 at the rate of 16}. per cent, per annum from the 81stMarch, 1904, to this date, and with further interest on the aggregateamount made up of the principal and interest at the rate of 9
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per cent, per annum from this date to the date of payment, andcosts. ”
The defendant appealed.
Walter Pereira, K.G., S.G. (Balasingham with him), for defen-dant, appellant.—The mortgage of land was altogether inoperative,as it was effected by a married woman. Under our MatrimonialBights and Inheritance Ordinance (No.. 15 of 1876, section 9) it isonly with the written consent of the husband, “ and not otherwise,’1that a wife can dispose of or deal with her immovable property.Here, there was no such consent given. True, that after the exe-cution of the bond certain cheques—possibly endorsed by thedefendant, as contended by the other side—were sent to the plaintiffin payment of interest, but that cannot be construed to meanwritten consent. The consent under the Ordinance should not beex post facto. The words are “ with the written consent of herhusband, and not otherwise. *' These last words are significant-Then, it is said that the husband was present at the execution ofthe bond, and is estopped from denying its validity. The questionis not whether the husband personally is estopped. The questionis whether the defendant is estopped, and the defendant is thehusband, not in his personal capacity, but as the administrator ofthe deceased. Besides, the question of estoppel does not comeinto play at all. A deed invalid because certain requirements ofthe law have not been complied with cannot be rendered valid byestoppel. If I stand by while my property is being sold by another,I may be estopped from questioning that person’s title, and maythus lose my property, but that contingency is always subject tothe provision that a valid deed has been executed. Here, the pro-perty admittedly did not belong to the husband, but his written con-sent was necessary to the execution of a valid deed by the wife, and hisstanding by cannot, by operation of the doctrine of estoppel, be said
to be a sufficient substitute for the legal element of written consent.■* •
Bawa (Van Langenberg with him), for plaintiff, respondent.—Thedefendant is estopped from disputing the validity of the mortgageas, being present, he stood by and acquiesced in its execution.[Hutchinson C.J.:The defendant is administrator, and there is no
estoppel qnless it can be said the intestate was estopped.] The intes-tate was estopped by her conduct and that of the husband, which takentogether amounted (1) to. a representation either that she Vtras a femesole, or a widow, or not lawfully married; or (2) that if married thehusband's conduct had been given. [Wood Renton J.: Must theconsent not have been given previously and in writing ?.]. Even if
1906.
November 29.
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1906. so, the plaintiff was entitled to suppose that everything had beenNovember 29. done which the law requires to give validity to the mortgage.r Nicholas de Silva v. Shaik Alt (1) is in point. There, a similar questionarose. Though the instrument in that case was executed prior to*the Ordinance No. 15 of 1876, yet the same principles apply withgreater force, for under the common law the property vested in thehusband, and not merely written consent, but a deed from him,was required to pass title. Bonser C.J. said: “ Had it beenproved that the husband knew of the sale by his wife and raisedno objection to its completion, I should have been prepared to holdthat he was estopped from denying its validity;” and further:As it would have been inequitable for the wife to have repu-diated her own sale and conveyance, so also it is inequitable for herheirs and representatives to do so. He is bound to make good the actof his auctor and the defendant may oppose to the claim the exceptiorei vendita et tradita. ” Withers J. agreed. If written consentwas necessary, section 9 of Ordinance No. 15 of 1876 does not requirethat it should be previous to the execution of the instrument. Theevidence shows that the husband signed various documents—ordersand receipts—implying consent after the mortgage had been signed.In any event the wife’s estate is liable for the debt, even though nomortgage decree may pass. The evidence shows that the moneyraised by the mortgage enriched the wife’s estate and dischargedprevious mortgages (Nathan's Common Law of South Africa, vol. /.„§886).
29th November, 1906. Hutchinson C.J.—
The appellant is sued in this action as administrator of the estateof Sundaram. The plaintifE alleges that Sundaram, by a bonddated in 1899, bound herself to pay the plaintiff Rs. 4,500 withinterest, and mortgaged to him the property mentioned in theplaint to secure payment of the debt; that she is dead, and thatthe defendant is her administrator; and that money is due on thebond; and he asks' the Court to order the defendant, as suchadministrator, to pay the amount due, and that in default theproperty may be sold.
The defendant says * that at the date of the bond Sundaram washis wife, and that the mortgage was executed without*his writtenconsent,, and is therefore, bad and invalid.
The plaintiff denied that the defendant was Sundaram’s husband,and pleaded that the defendant was present at the execution of 1
(1) {1895) 1 N. L. R. 228.
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the bond and raised no objection to its execution, and thereafterpaid interest on it, and is estopped from denying its validity.
It was proved that the defendant was Sundaram’s husband atthe date of the bond, and that the mortgaged property was Sun-daram’s, and that the defendant was present at the execution ofthe mortgage. The defendant admitted that the debt is due. Hesaid that the income from the property is just enough to supporthis three children, and that is why he will not pay. He admittedthat the money lent by the plaintiff went in payment of aprior mortgage executed by his wife with his knowledge and inhis presence. After the mortgage to the plaintiff tea leaf from themortgaged properly was sold to a man who, at the defendant’srequest, sent the, plaintiff cheques for the amount due, and theplaintiff appropriated the proceeds in repayment of advances hemade to Sundaram, also at the defendant’s request, for the upkeepof the property, and in payment of interest due on the mortgage;and the District Judge finds that this mode of payment continuedafter Sundaram’s death.
1006.
November 20.
Hutceoksok
CJ.
The mortgage was invalid by reason of the enactment in section9 of Ordinance No. 15 of 1876, that “ a woman married after the
proclamation of the Ordinance shallhave as full power of
disposing of and dealing with any immovable property to whichshe may become entitled during her marriage by any lawful actinter vivos with the written consent of her husband, but not other- •wise, as if she were unmarried. ” Sundaram was married after theproclamation of the Ordinance, and she acquired this propertyduring her marriage.
The plaintiff, however, contends that the defendant is estoppedfrom denying the validity of the mortgage by reason of his havingbeen present and making no objection to it at its execution and byhis subsequent conduct recognizing the obligation.
But the defendant is not sued personally, but only as adminis-trator. It is therefore necessary for the plaintiff to show thatSundaram would have been so estopped. He cannot do that. Sofar as regards the mortgage, therefore, this action must fail.
The plaintiff urges that nevertheless the claim for the debt canbe sustained, and in that I think he is right. A married woman isliable to repay money which she borrowed with her husband's *consent, and of which her estate had had the benefit. I think thatthe judgment under appeal should be set aside, and‘judgmententered for the plaintiff against the defendant, as adminis-trator of Sundaram, for the amount claimed with costs in bothCourts.
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1906. Wendt J.—
November 29.
•*-*- I have had the advantage of perusing the judgments of my Lordand my brother Wood Benton, and I agree entirely with them in *holding (1) -that the mortgage was invalid for want of the husband'swritten consent; and (2) that the husband, sued solely as his wife'sadministrator, is not estopped (because the wife, if alive, would nothave been estopped) from setting up that invalidity. As for thecontention that, apart from the mortgage security, the plaintiff isentitled to recover the debt on the wife's obligation, 1 think it isnot sustainable, inasmuch, as a married woman is incapable ofbinding herself [see Silva v. Disanayaha (1)]. But it seems to methat, apart from express obligation, her estate in defendant’s handsis liable to make good to plaintiff the money he advanced, it havingbeen admitted in the Court below that that money went to pay offa previous encumbrance on the mortgaged land. To that extentthe intestate's estate was benefited, and the ordinary principleapplies that, defendant shall not retain that benefit without. com-pensating plaintiff. I think therefore that defendant, as adminis-trator, should repay to plaintiff the sum lent, with interest at 9per cent., the legal rate, up .to date of District Court decree, andfurther1 interest thereafter on the aggregate sum until payment infull, with costs in both Courts.
Wood Benton J.—
The appellant is sued as administrator of the estate of his wifeSundaram on a mortgage executed by her in favour of tte respon-dent. The appellant and Sundaram were married after “ TheMatrimonial Bights and Inheritance Ordinance, 1876 *' (No. 15 of1876) came into operation, aud therefore, under section 9 of thatOrdinance, the wife has power to mortgage her immovable property“with the written consent of her husband, bqt not otherwise.Although the points do not seem to be covered by authority, Iincline to the view that the written consent of the husband mustbe previous to the execution of the mortgage, as the words “ butnot otherwise appear to invest it with the character of a conditionprecedent, and, in any event, it must be an express consent to theparticular transaction. I do not think that an implication of thehusband's consent from subsequent documents, in which he hadrecognized the existence of the mortgage, would satisfy <he require-ments of the law. In the present case there is no suggestion of anyconsent in writing by the appellant to his wife's mortgage prior to
(1) (1892) 2 0. L. H. 123.
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its execution. There is evidence that, after its execution, the IWfl.appellant sent cheques to the respondent in payment of amounts November 29due by way of principal and interest under the mortgage. But Woodthat is not enough. It follows (1) that the mortgage has not been Renton j*‘executed in the mode prescribed by section 9 of Ordinance No. 15of 1876, and as the words “ but not otherwise M are clearly impera-tive and not merely directory; (2) that it is invalid at law [seeHunt v. Wimbledon Local Board (1); Young v. Royal LeamingtonSpa (Mayor of) (2)]. Under English Law, to which, in the con-struction of a statute based on English legislation and considered,with reference to a marriage contracted, after it had come into-force, we are, I suppose, bound to have regard [Meideen v. Banda (8)],the wife would have been, and the appellant qua her administrator is,entitled to take advantage of this invalidity, in the absence of anycircumstances amounting to an equitable estoppel [Cannam v.
Farmer (4); Liverpool Adelphi Loan Association v. Fairhurst (6);
Wright v. Leonard (6); Earle v. Kingscote (7)]. Two alleged groundsof equitable estoppel are’ relied upon by the respondent here; (1)that the appellant held her out as a feme sole; (2) that, in any case,he represented her to the respondents as possessing the* requisitestatutory authority. In my opinion both grounds are bad.
(1) The marriage of the appellant with Sundaram is sufficientlyproved by evidence of its actual celebration, followed by twentyyears’ cohabitation [ (cf. Sastry Valaider Aronegary v, Sembecutty Vai-galie (8)]. Moreover, there is positive' evidence in the presentcase to show that the respondent was aware that Sundaram was amarried woman; and there is not a vestige of proof of any represen-tation by the appellant to the contrary. (2) It appears that theappellant accompanied Sundaram, and was beside her, when themortgage was executed. But I do not think that any impliedrepresentation can fairly be deduced from this circumstance.
Probably neither the appellant nor the respondent was aware ofthe necessity for a written consent of the husband to his wife’smortgage. I agree, however, that the wife—having had the benefit ofthe money borrowed—would be liable, under Roman-Dutch Law,to make it good. That liability can be enforced against her estate.
I concur in the order proposed by my Lord the Chief stiee andmy brother Wendt.
*Judgment varied: money decree entered.
(1) (1878) 4 C. P. D. 48.(•2) (1883) 8 A. G. 517.m'am) 1 N. L. R. 51.(4) (1849) 3 Ex. 698.
(1854) 9 Ex. 422.
(1861) 30 L. /. €. P. 365..
(1900) 2 Ch. 585.
. (8) (1881) 2 N. L. R. 322.