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Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice,and Mr. Justice Wood Renton.
MARTELIS APPU i, J AYEWATtDEKE el al.
D. C., Chilaw, 3,386.
Agreementby married womantosell land—Consent ofhusband—llejund
for improvements—Maia fide possessor—Ordinance No.' 7 of 1840.
Theplaintiff institutedthis action on allegingthat the first
defendant, the wifeof theseconddefendant, verbally agreed tosell
him a piece of land, and that he advanced a sum of Bs. 720 as partof theconsideration; thathewas put in possession of the land,
whichhe improved by building two houses. Theplaintiff prayed '
that the first defendant bo called upon to execute a transfer, or. mthe alternative, to refund the sum of Bs. 720 and pay compensationfor the improvements made by the plaintiff.
Held, that tho agreement to convey the land was void, as i; wasnot notarially executed, and also as it was entered into without ihoconsent of the first defendant's husband.
Held, also, that the money advanced could be recovered, butthat theclaim forrefundof such money was prescribed, inasmuch
as it was not made within three years of the date of the cause ofaction.
Wood Benton J.—'Ihecause of action for themoney arose
wheneverit mighthave.beenrecovered. i.c., immediatelyon
Held, further, that the plaintiffwas. entitled to compensationfor
any necessary improvements effected by him, he begin a' bona fidepossessor.
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PPEAL by the plaintiff from a judgment of the District Judge
rl of Chilaw (R. G. Saunders, Esq.)- The facts sufficientlyappear in the judgment.
Gamin, for the plaintiff, appellant.
Wadsworth, for the defendants, respondents.
July 1, 1908. Hutchinson C.J.—
This is an appeal by the plaintiff against a decree dismissing hisaction. In his plaint he says that the first defendant, allegingherself to be the owner of certain land at Mudukatua, agreed to sellit to him for Rs. 800, and received from him Rs. 720 from time totime between April, 1901, and September, 1901, and put him inpossession of the land, and agreed to execute a valid transfer of it tohim within a few months, when the second defendant, who is herhusband, and who was absent, should return; that, though frequentdemands were made, the defendants failed to execute the transfer;and that he had built two houses on the land and improved it at acost of Rs. 500, and he asked that the first defendant be called on toexecute the transfer, or, in the alternative, that she be ordered topay to him the Rs. 720, and the Rs. 500 as damages.
The defendants in their answer said that the contract, if any, onwhich the action is based is void in law, inasmuch as it was not.entered into with the consent of the second defendant; that it wasalso void as it was not executed in terms of section 2 of OrdinanceXo. 7 of 1840; that the claim for consideration (i.e., the Its. 720) isprescribed; that the compensation for improvements, if any, werenot necessary. The first defendant admitted having received Rs. 720,for which, she said, the plaintiff was allowed to enjoy the produce of'the land from April, 1901, to January, 1905; the second defendantsaid that his wife received the Rs. 720 without his consent or know-ledge; and they denied that the plaintiff had made the improvementswhich he alleged.
In answer to interrogations, the first defendant swore that she didnot agree with the plaintiff in 1901 .to sell to him any land at Mudu-katua, and that- she took no money from him on such- an agreement.
The District Judge, without any evidence being taken, held thatthe plaintiff could not maintain the action because the first defendantwas a married woman, and her husband was not a party to the trans-action. There were other issues agreed upon: the 3rd was whetherthe claim for Rs. 720- was prescribed, and the 6th and 7threferred to the claim for compensation for improvements; but theDistrict -Judge gave no opinion on them.
The first defendant had no power to dispose of the land without thewritten consent of her husband; and the agreement which theplaintiff alleges with her was of no avail for the purpose of disposing
190S.J uly 1.
Cur. adv. vult.
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1908. 0f the land. If she received the Rs. 720 from him on account of theagreement, she Fas bound to repay it; and his right to recover it
Hutchinson accrued at once, and is now barred by the lapse of more than three
years since the payment.
As t;o the claim for compensation for improvements, on which theDistrict Judge has not touched, if the plaintiff’s story is true he wasput in possession of the lanji by the owner of it under an agreementwith her to sell it to him, and he paid her Rs. 720 in pursuance of theagreement, and expended his money on the land in reliance on theagreement, it cannot be said, if those are the facts, that he tookpossession “ in bad faith.” For many purposes a man is presumedto know the law. But he is not necessarily a “ mala fide possessor ”because he knew or must be presumed to have known that his title isbad or defective. I had a similar case a short time ago, in which aman agreed to buy a piece of land; he knew that there were infantswho had a share in it, but he relied on their mother's promise toapply .to the Court, as in fact she did apply but without success, toobtain a valid transfer of the infants’ share, and he trusted to hisproctor to see that it was obtained; and he .took possession andspent his money on the land, in the expectation and belief that hewould shortly get a valid transfer. I considered, and I still think,that he was a bona fide possessor. I have not found any definitionof “ mala fide possessor,” but I think that a man who takes posses-sion in the mistaken belief that he has a good title, or that he iscertain to obtain one, whether his mistake be of fact or of law,cannot be said to do so mala fide.
I think that the claim for Rs. 720 was rightly dismissed, not forthe reason given by the District Judge, but because the claim isprescribed; but that the case should go back to the District Court forthe trial of the question whether there was such an agreement as theplaintiff alleges wi.th the first defendant,; and whether he tookpossession in reliance on it, and of the issues 6 and 7 agreed upon;and for adjudication upon the claim for compensation for improve-ments. The costs of this appeal should be costs in the cause.
Wood Renton J.—
The appellant sued the respondents, who are husband and wifemarried under the. Matrimonial Rights and Inheritance Ordinance,1876 (No. 15 of 1876), for the recovery of the sum of Rs. 720, and fordamages, on the ground that the first respondent agreed to sell to himfor Rs. 800 a certain land at Mudukatua, of which she alleged her-self to be owner, received from him from time to time betweenApril 11 and September 14, 1901, the above-mentioned sum ofRs. 720 towards the price, and put the appellant in possession of theland in question, promising to execute a valid conveyance within afew months, when her husband, the second respondent, a public
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servant then stationed in the Anuradhapura District, returned toMudukatua; but failed equally with her husband to make goodthis promise on payment of the balance of tire purchase money.
The respondents pleaded that the contract, if any, on which theappellant sued was void in law, on the grounds that it was enteredinto by the first respondent without the written consent of herhusband, as required by section 8 of Ordinance No. 15 of 1876; thatit was not executed in terms of section 2 of Ordinance No. 7 of1840; and that the claim for the recovery of the alleged considerationwas prescribed. The respondents further denied the alleged agree-ment to sell. The first respondent admitted the receipt of Bs. 720,but said it that it was in consideration for the produce of the land,which he was allowed to enjoy between April, 1901, and January,1905. The second respondent alleged that this money was receivedby hjs wife without his consent or knowledge.
On these pleadings a variety of issues were framed. But thelearned District Judge disposed of the ease on one ground only. Heheld that the absence of the consent of the second respondent to thealleged agreement entered into by the first precluded the appellantfrom suing on it, and dismissed his action accordingly.
Mr. Garvin, for the appellant, contended before us (1) that evenif the alleged contract by the first respondent was bad and un-enforceable under section 8 of Ordinance No. 15 of 1876 and section2 of Ordinance No. 7 of 1840, the money paid under it was recover-able under the Boman-Dutch Law; and (2) that, although on theface of the record itself it appeared that a period of more than threeyears had elapsed between the last payment to account (September14, 1901) and the institution of these proceedings (June 2, 1905),the appellant’s claim was not barred by prescription, inasmuch asthe cause of action in this case did not accrue to him within themeaning of section 11 of the Prescription Ordinance (No. 22 of1871) till the formal demand for the execution of a conveyance inpursuance of the contract had been made and refused.
The agreement itself was clearly unenforceable in the absence ofthe husband’s written consent. But I think that the money paidunder it was recoverable (see Grigoris v. Till.ekeratna,1 followingC- B- Panwila, 3,713 2). The “ cause of action,” however, for thatmoney arose whenever it might have been recovered, i.e., imme-diately on payment, and consequently, whether the case comesunder section 8 or section 11 of the Prescription Ordinance (No.22 of 1871), jt was barred at the date of the institution of thepresent action.
I agree with my Lord the Chief Justice in regard to the question ofcompensation, and I assent to the order .that he haa proposed.
* Ortnier, Part II., 1873, 34.
1 (1893) 2 C. L. R. 190.
MARTELIS APPU v. JAYEWARDENE et al