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Present: Grant J. aqd Maartensz A.J.
NONA v. MANUEL et al.
63—]). G. (Itity.) Galle, 24,101.
Married Women's Property■ Ordinance—Action for declaration of title toland—Married after the Ordinance—Land bought before—OrdinanceNo. 18 of 1023, ss. 4 and 5.
A woman married before July 1, 1924, the date at which theMarried Women's Property Ordinance, No. 18 of 1923, came intooperation, sued for a declaration of title to a land bought by her beforeJuly 1, 1924.
Held that she was entitled to maintain (he action without joiningher husband.
LAINTIFF, a woman married before the Married Women’s
Property Ordinance, 1923, came into v operation, sued thedefendants without the assistance of her husband for declaration oftitle to a land to which she claimed title under a deed executed inher favour on June 11, 1924. The cause of action alleged was anouster by the defendants in August, 1925. The defendants tookthe objection that the action was not properly constituted as theplaintiff’s husband had not been made a party. The learnedDistrict Judge upheld the objection and dismissed the plaintiff’saction.
Wceraratne, for appellant.—Section 5 of Ordinance No. ^19 of 1923empowers a woman in the position of the plaintiff to sue, as if she werea feme sole. The District Judge’s view is that the proviso to section 4conserves the necessity to join the husband. The proviso does nothave that effect. Section 4 repeals section 5-19 of Ordinance No. 15of 1876, which do not deal with this question. The proviso says thatthe repeal does not affect the right or liability of a woman marriedbefore the commencement of the Ordinance to sue or be sued underthe provision of- the repealed sections. The disability of the wifearose, not from the repealed sections but from the common law.The cause of action arose after Ordinance No. 19 of 1923 came intooperation. The cause of action is the ouster. The fact that the landwas -purchased before the coming into operation of the Ordinancedoes not matter. In Wildon v. IVensloo,1 it was held that in anaction for tort committed before the Married Women’s PropertyAct of 1882 came into' operation the husband of the married womanneed not be joined as a party when the action was after the cominginto operation of the statute. The Act of 1882 contains wordsidentical with section 5 (2).
1 13 Q.B.D. 784.
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H. *P. Perera (with him D. E. Wijewardene), for defendants,respondent.—The disability, it is true, did not arise under sections5-19 of Ordinance No. 15 of 1876. It was a disability created by theRoman-Dutch law. But the proviso to section 4 says that the repealshall not affect any rights or status acquired whilst such sections werein force—and not merely under those sections. The marriage ofthe plaintiff having taken place after 1876, she acquired the statusof a married woman with the rights, obligations, and disabilitiesinvolved in such status while those sections were in force, and theyare therefore unaffected by the repeal.
July 12, 1927. Lyall Grant J.—
The question for decision is whether a married woman can, inthe circumstances of this case, sue without her husband as co-plaintiff. The facts, so far they are relevant, as are follows: —
The plaintiff is a married woman living apart from her husband.She was married after 1877, the date at which the Married Women'sRight of Inheritance Ordinance came into force, and before 1924when the Married Women's Property Ordinance of 1923 came iutoforce. The action is one for declaration of title to a certain pieceof land and for ejectment of the defendants therefrom. Theplaintiff also prays to be put in quiet possession, for damages, andfor costs.
Her plaint sets forth that the land was conveyed to her by abill of sale dated June 11, 1924. She alleges that the defendantswho have no right of title to the land deny and dispute the plaintiff'stitle to the same and are in forcible and unlawful possession of thesame since August, 1925. The plaint is dated November'15, 1926.
An important date to be noted in connection with these proceedingsis the date on which the Mamed Women’s Property Ordinance of1923 commenced. That date is July 1, 1924.
The plaintiff therefore bought the land before the commencementof the Ordinance but the cause of action arose thereafter.
The learned District Judge has held that the plaintiff must joinher husband before she can proceed with this action. He holdsthat “ she is seeking to enforce a contract made some seven daysbefore the new Ordinance came into force. If the new Ordinancehad not been passed it would have been necessary to join thehusband as co-plaintiff, in other words the husband had a certainstatus which is kept in force by the terms of section 4 of the newordinance. ”
From this judgment the plaintiff appeals and argues that thecause of action did not arise until August, 1925, and that con-sequently the husband cannot be a pally to the proceedings-
It is not disputed that under the Roman-Dutch law as it stoodbefore the enactment of the Matrimonial Rights Ordinance of 1876
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a married woman could not sue without her husband being joinedas a party. That Ordinance made several important alterationsas to the property rights of a married woman.
Section 9 provides that “ any immovable property to whichany woman, married after the proclamation of this Ordinance,may be entitled at the time of her marriage, or may become entitled
to during he marriage, shallbelong to the woman
for her separate estateSuch woman shall have full
power of disposing of and dealing with such property by any lawful.act inter vivost with the written consent of her husband, but nototherwiseas if she were unmarried."
Section 12 provides that where the wife was deserted by her.husband or separated from him or by certain other eventualities,she might petition the District Court for an order authorizing herto deal with such property ‘without her husband's consent, and theDistrict Court was empowered to make, such order after inquiryinto the truth of her petition.
Broadly speaking, therefore, up to July 1, 1924, a wife could notdispose of her property without her husband’s consent.
Section 5 of the Married Women’s Property Act of 1923 bysub-section (1) empowered a married woman to acquire, hold, anddispose of movable or immovable property as her separate propertyin the same manner as if she were a feme sole, and by sub-section (2)empowered her to sue and be sued either in contract or in tortor otherwise iii all respects as if she was a feme sole and her husbanddid not need to be joined with her either as plaintiff or defendantor to be made a party to any action or other legal proceeding
brought by or taken against herand it was further
provided that any damages or costs recovered by her in any suchaction should be her separate property and any damages or costsrecovered against her in any such act or proceeding should bepayable out of her separate property and not otherwise.
The property, which a woman married before the commencementof the Ordinance is empowered to hold as her separate property, islimited by section 10 (1) to property which accrues after the com-mencement of the Ordinance. Section 4 of the Ordinance of 1923repeals sections 5 to 19 of the Matrimonial Bights Ordinance of1876, in so far as they relate to persons married on or after Juno29, 1877, that is to say, persons in the position of the present appel-lant and her husband. This section contains the following proviso : —
“ Provided, however, that such repeal shall not affect any actdone or right or status acquired while such sections werein force, or any right or liability of any husband or wifemarried before the commencement of this Ordinance,to sue or be sued under the provisions. of the said repealedsections for or in respect of any debt, contract, wrong, or
other matter or thing whatsoever for or in respect of whichany such right or liability shall have accrued to or againstsuch husband or wife before the commencement of thisOrdinance. ”
The question to be considered in the present case is, therefore,whether the right of the plaintiff to sue arose in respect of a debt,contract, wrohg, or other matter in respect of which any status,right or liability had accrued to or against her husband before thecommencement of the Ordinance.
In the case of th$* application by Rabianayakage Caroline Nona',it was held by this Court that a husband’s right to restrain his wifefrom disposing of her immovable property without his writtenconsent in respect of property acquired before the commencementof the Ordinance of 1923, by a married woman before that Ordinance,was unaffected by the repeal of sections 9 and 12 of Ordinance; No, 15of 1876.
The wrong complained of by the plaintiff is said by her to havearisen in Ahgiist, 1925, and her right to sue would not appear tohave arisen until that wrong was committed.
The learned District Judge has proceeded on the ground that theplaihtiff is seeking to enforce a contract-, that is, the contract for thepurchase of-the land. This, however, is clearly not the case. Theaction is one in'1 tort in respect of the wrongful act of third parties.
The1 argument .advanced-for the respondent in appeal was that thisproperty in respect of which the wrong complained of has beencommitted was boiight by the wife before the commencement of theOrdinance, and that imfnediately upon her acquisition of theproperty her husband acquired a certain status in regard to it.I'hat he Sid acquire such a status cannot be disputed in view ofthe case just deferred to. The wife could not alienate the propertywithout her husband’s consent. The precise question before usin this case, however ik whether this status necessitates the husbandbeing joined as a party ;in every case where the wife finds it necessaryto defend her rights hi rtegard to the property.
Section 9 of the Ordinance of 1876 provides that such estate isthe separate estate of the wife and that it is not liable for the debtsor other engagenaents of her husband. She is empowered to givereceipts which aafe a good discharge for the rents, issues, and profitsarising from the, property, and the only limitation which is placedupon her is in regal’d to her powers of disposing of and dealing with it.
I am doubtful whether that limitation can be extended so as todisqualify a woman, living apart from her husband, who has bought-a property presumably* with her own money, from suing a personwho dispossesses her ovf the property, unless she joins her husbanda& co-plaintiffs V ^
1 G Cey. Law Recorder, p. 4G
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In a case which arose soon after the commencement of theOrdinance of 1876, it was decided that section 20 of the Ordinancewhich enacted that a married woman might maintain an action inher own name in certain matters does not dispense her from joiningher husband as a party. That was the case of HettiakandagcJoseph Fernando and another v. Maria Felsingcr and D. J. Fernando1.
That case followed the English case of Hancocks v. Lablache?a case decided on the Married Women’s Act of 1870. After thedecision of that case, however, the Married Women's Property Actof 1882 was passed, which contained words- which are practicallyreproduced in section 5 (2) of our Married Women’s PropertyOrdinance of 1923. On that Act it was decided by the Court ofAppeal in the case of Weldon v. Winslow,3 that by virtue of the pro-visions of the section, a married woman could sue for a tort com-mitted before that Act came into operation. The words “ a marriedwoman shall be capable of being sued in tort in all respects as ifshe were a feme sole, and her husband need not be joined with heras plaintiff, or be made a party to any action, and any damagesrecovered by her in any such action shall be her separate property "were interpreted as applying to an action brought after the statutecame into operation even although the cause of action was previous.It was held that there was nothing in the Act to limit its provisionsto causes of action. arising after the statute came into, operation.It is true that the cause of action in that case was personal injury,but in the present case the position of the wife is in some respectsstronger.
The tort complained of, as well as the institution of the action,occurred after the commencement of the Ordinance of 1923. Thewords of the English Act of 1882 are practically identical withthose of the Ordinance of 1923.
Assuming that the husband had acquired some right' of statusin regard to this property, I am not satisfied that he would havebeen entitled under the operation of the 1876 Ordinance to maintainan action in respect of the injury alleged against the defendant.Unless he was vested with such right of action independent of thewife’s‘right of action, he can acquire no status in respect of thewife’s separate property, which in any way could be interfered withiby the wife separately maintaining this action.* .
There is nothing in the Ordinance of 1876 which shows thatthe husband had any such right. Section 8 of that Ordinance makes:it clear that there was no community of goods in respect of theproperty. Section 9 makes it equally clear that the property wa*the woman’s separate estate. Nor do 1 find that any right is givori
* 0 Sup. Court Circular, p. 34.2 Law Hep. 3 C. P. Dp. 19f.
13 Q. B. D.t p. 784.
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to the husband to sue separately in respect of any wrong done tothe woman in connection with such property, as if it were a wrongdone to the husband himself.'
I do not think therefore that he has acquired any status, to usethe language of section 4 of the Ordinance of 1923, which is affectedby his wife's action in this case.
I think the appeal must be allowed with costs.
This appeal raises a question with regard to the constructionof section 4 and sub-section (2) of section 5 of the Married Women’sProperty Ordinance, 1923.
The plaintiff, a woman married before the Ordinance came intoOperation, sued the defendants without the assistance of her husbandfor declaration of title to a land called Mestrigewatte to which sheclaimed title under a deed No. -300 executed in her favour on June11, 1924.
The cause of action alleged is an ouster by the defendants inAugust, 1925.
The defendants took the objection in limine that the actionwas not properly constituted, as the plaintiff’s husband had notbeen made a party to it either as plaintiff or defendant.
The learned District Judge upheld the objection and the appealis taken from this order.
The learned District Judge held that the husband had a statusprior to the coming into operation of the Ordinance of 1923 andthat that status is preserved to him by the proviso to section 4 of-the Ordinance.
Section 4 enacts as follows: —
“ Sections 5 to 19 (both inclusive) and sections 22 and 23 of‘ The Matrimonial Rights and Inheritance Ordinance,1876, ’ are hereby repealed in so far as they relate topersons married on or after June 29, 1877.
“ Provided, however, that such repeal shall not affect any actdone or right or status acquired while such sections werein force, or any right or liability of any husband or wifemarried before the commencement of this Ordinance,to sue or be sued under the provisions of the said repealedsections, for or in respect of any debt, contract, wrong,or other matter or thing whatsoever, for or in respect ofwhich any such right or liability shall have accrued toor against such husband or wife before the commencementof this Ordinance. “
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Section 5, sub-section (2), enacts as follows:—
“ A married woman shall be capable of entering into and,rendering herself liable in respect of and to the extent ofher separate property on, any contract, and of suing andbeing sued, either in contract or in tort, or otherwise,in all respects as if she were a feme sole; and her husbandneed not be joined with her as plaintiff or defendant,or be made a party to any action or other legal proceedingbrought by or taken against her; nor shall he be liable,merely on the ground that he is her husband, in respectof any tort committed by her and any damages or costsrecovered by her in any such action or proceeding shallbe her separate property; and any damages or costsrecovered against her in any such action or proceedingshall be payable out of her separate property, and nototherwise. ”
The question for decision is whether the proviso to section 4over-rides the provision of section 5 (2) with regard to a wife suingwithout joining her husband as a party plaintiff.
The proviso at first sight appeared to me to be intended topreserve to a husband or wife, married before the commencementof the Ordinance of 1923, the effect of any act or right or statusacquired under the provisions of the repealed sections, and hadnot the effect of preserving any right or status acquired otherwisethan under any of those provisions.
It was contended, however, on behalf of the respondent that theword “ status ” acquired whilst such sections were in: force waswide enough to' include any status acquired whether under thosesections or not and that therefore the right of the husband to bejoined as a party plaintiff or defendant was preserved by theprovisions of that proviso.
I am of opinion that this argument is not a sound one. Theproviso must be construed with reference to its place in -theOrdinance. It follows upon a repeal of certain sections of theMatrimonial Eights and Inheritance Ordinance of 1876 and I amof opinion that the effect of the proviso must be determined withreference to these sections.
If the effect was not so determined it would mean that theprovision of section 5 (2) would only affect persons married afterthe Ordinance came into operation.
Now there are sections in the Ordinance of general effect, i.e.,sections which are applicable to persons married before or afterthe Ordinance came into operation of which section 5 (2) is oneand sections which distinguish between persons married beforethe Ordinance came into operation and persons married after thatevent. If the legislature intended to limit the operation of section 529/15
(2) to marriages entered into after the Ordinance came into oper-ation, I have no doubt there would have been the words necessaryto give effect to that intention enacted in the section. There areno such words, and I therefore, am of opinion that the provisions ofsection 5 (2) are applicable to married persons whether marriedbefore or after the Ordinance came into operation.
I would accordingly allow the appeal with costs in both courtsand remit the case for trial in due course.