124-NLR-NLR-V-22-MOHAMED-BHAI-v.-NEWMAN-et-al.pdf
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Present: De Sampayo J.
MOHAMED BHAI v. NEWMAN et al.
1—G. R. Kandy, 27,024.
Inducing wife or child to contract debt—Money Lending Ordinance, No. 2of 1918, s. 16—Written consent of husband or father.
The lending of money by a money lender to a wife or childwithout the written consent of the husband or father is not illegalunder section 16 of Ordinance No. 2 of 1918. The words of thissection contemplate a visit of the residence by the money lenderin the absence and without the knowledge of the person who is thenatural protector of a wife or child, and the whole provision isintended to prevent a wife or child from being tempted to contract,a debt.
rpHE facts appear from the judgment.
AnUanandan, for plaintiff, appellant.
C. H. Z. Fernando, for defendants, respondents.
June 30,1920. De Sampayo J.—
The plaintiff is an Afghan money lender, and he sues the defend-ants, who are husband and wife, to recover a sum of Bs. 65 andinterest on an. allegation that at the request of the husband, thesecond defendant, he lent to the first- defendant a sum of Bs. 75,and that they paid him a sum of Bs. 10, leaving unpaid the balancesum of Bs. 65. The defence waB that the plaintiff lent only thesum of Bs. 25, and that there was only a balance of Bs. 15 due.
» (1893) 3 S. O. R. 1.3 (1919) 7 G. W. R. 12.
3 S. C. Mins., Dec. 1, 1909.
1920.
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1920.
De SamfayoJ.
MohamtdBhai v.Newman
Relevant issues were stated at the trial on the pleadings. Theplaintiff gave evidence and closed his case, and then the seconddefendant was examined in chief. At this stage a point of lawappears to have been started, and was stated as the third issue.The Commissioner decided the last'issue in favour of the defendants,and dismissed plaintiff’s action, excepting as to the sum of Rs. 16.The point of law taken is based on section 16 of the Money lendingOrdinances, No. 2 of 191.8, which enacts as follows: “ Any personcarrying on business of money lending who by visiting the residenceof any person induces the wife or child of any such person tocontract a loan without, his written consent shall be guilty of anoffence.”
The Commissioner discusses the meaning of this provision, andthinks that the word “ induce ” as used here has not its ordinaryforce, and that the seotion is merely intended to provide that if aperson lends money to a wife or child without a written consentfrom the husband or father the transaction is illegal. It appearsto me that the word “ induce ” in this section has greater force thanthe Commissioner attributes to it, and should be oonstrued in thelight of the preceding words; “ by visiting the residence of theperson.” These words contemplate a visit in. the absence andwithout the knowledge of the person who is the natural protectorof a wife or child, and the whole provision is evidently intended toprevent a wife or child from being tempted to contract a debt. Thesecond defendant admits having authorized the plaintiff to lendRs. 25 to his wife, and made an entry to that effect in the plaintiff’sbook. Thus; the Ordinance was not contravened so far as loan ofRs. 25 was concerned, and the Commissioner was right in dis-allowing the claim in. excess of that sum. Apart from the law, itis quite clear that -the plaintiff lent only Rs. 25. It is pointed out,however, that the second defendant was not cross-examined, as theproceedings were interrupted at this stage by the framing of theissue of law, but in a case like this I am not disposed to makeparties incur the expenses of a further trial, unless I am convincedthat the result would be different.
In view of the entry in the plaintiff’s own book and the unsatis-factory nature of his evidence, and in view of the second defendant’sevidence as. to the amount he asked the plaintiff to lend, it wouldbe idle to inquire further whether the plaintiff was authorized toadvance, or did in fact advance, more than Rs. 25. In the resultthe Commissioner’s decree in favour of plaintiff for Rs. 15 only is,I think, right.
The appeal is dismissed. There will be no order as to costs ofappeal.
Appeal dismissed.