Perera v. Per era.
1948Present: Canekeratne and Dias JJ.
PERERA, Appellant, and PERERA, Respondent.
S. C. 259—D. C. Avissawelia, 4,773.
Married woman—Disposal of immovable property—Consent of husband in Writing-Void or voidable—Matrimonial Rights Ordinance—Married- Women’s PropertyOrdinance.
A woman married before July 1, 1924, cannot dispose of immovable propertyacquired before that date without the writen consent of the husband.
CAKEKERATNE J.—Per era v. Perera.
A PPF.AT. firom a judgment of the District Judge, Avissawella.
V. Perera, K.O., with E. A. P. Wijeyeratne, for the plaintiff,appellant.
N. K. Choksy, K.C., with S. R. Wijayatilake and. E. 0. F. de Silva, forthe defendants, respondents.
Cur. adv. vult.
March 22, 1948. Canekeratke J.—
This is an appeal by the plaintiff, a grand-daughfer of one Ango Perera,from a judgment dismissing her action for declaration of title to a land.
Ango Perera became the owner of the land by two deeds dated April 1,1907, and July 13, 1907, respectively ; she made a gift in favour ofthe plaintiff by deed P 1 dated October 25, 1941, reserving a life-interestto herself and her husband and by deed 1 D 1 dated August 10, 1944,she transferred the same land with the consent of her husband to the firstdefendant, another grand-daughter—it purports to be a deed of sale.
As Ango Perera was married afterthe proclamation of the MatrimonialRights and Inheritance Ordinance of 1876, this land formed part of herseparate estate. The right of a married woman to enter into contracts,and to make dispositions of her property under certain circumstanceswas recognised by this Ordinance (as regards the former, see sections10 and 9, and 17 N. L. R. 357, as regards the latter see sections 9, 12and 13). The second part of the Ordinance which contained sections5 to 19 and sections 22 and 23 was repealed and the scope of her capacityto contract and of her rights was widely extended by the Married Women’sProperty Ordinance, No. 18 of 1923. The Ordinance applies to allmarried women, whether they were married before the date of theOrdinance, July 1, 1924, or after : certain persons are taken out of thepurview of the Ordinance (section 3). The new law ought to be con-strued so as to interfere as little as possible with vested rights. A re-trospective operation is not to be given to a statute so as to impair anexisting right or obligation. The repeal of sections 5 to 19, 22 and 23 is,according to the proviso to section 4, not to affect any right acquiredwhile those sections were in force.
The Ordinance provided in effect that if a woman married on or afterJuly 1, 1924, all her property no matter when acquired should be herseparate property and she can dispose of any property belonging to heras if she were a feme sole (section 7 and section 5(1)). It contains certainprovisions which are applicable to a woman married before this date.The position of such a woman is as follows :—(1) She is entitled todispose of in manner previously mentioned in the Ordinance as a femesole by deed or will as her separate property whatever accrued to herafter the commencement of the Ordinance (section 10 (1) ). The sectionapplies to and affects all marriages contracted before the commencementof the Ordinance and alters with respect to such marriages in the mannerindicated in the section the consequences of the marital relation. (2) Shecan make a gift of immovable property acquired before the Ordinance
CAXEKF.RATNE J.—Perera v. Perera.
to her husband.. It was an existing right at the time of the passing ofthe Ordinance of 1923, and the new Ordinance does not alter this right.The Privy Council in Hulme. King v. de Silva 1 stated that under section 5of the Ordinance a wife is under no disability as regards coverture indisposing of her immovable property in favour of her husband. Amarried woman while the Ordinance of 1876 was in force could notdispose of any immovable property by a deed inter vivos, except with thewritten consent of her husband. This limitation of the power of amarried woman to dispose of such property still applies in cases wherethe property is that of a woman married before July 1, 1924, and it hasbeen acquired by her before that date. The consent of the husbandmay be dispensed with by the District Court where the husband is alunatic or idiot, or where his residence is not known, or where he is inprison or living apart from his wife by reason of desertion or separationby mutual consent, or where his consent is unreasonably withheld orwhere the interest of the wife or children requires that such consent bedispensed with (section 12).
A disposition of immovable property made by a married womanbefore tin coming into operation of the Ordinance of 1923, without therequisite consent would have been void, for she could dispose of suchproperty by act inter vivos “ with the written consent of her husbandbut not otherwise ” (section 9 ). This section is no longer in force ; buthis power of controlling to some extent her dispositions, being a rightunder the repealed sections, is unafFected. The husband of a womanmarried before July 1, 1924, can still insist on saying that his writtenconsent is necessary. A disposition of property without his -writtenconsent is an act done in derogation of the rights of the husband.Mr. Perera contends that the absence of a consent by the husband doesnot make the disposition made by Ango Perera void, but only rendersit voidable at the instance of the husband. When a transaction is saidto be voidable it means that it is valid but it can be avoided by one ofthe parties to it. It entitles one of the parties to take steps to put anend to the transaction, he can rescind it at his option. The transactionis binding and valid till it is set aside.
By marriage the husband of Ango Perera acquired a curatorial powerover his wife’s immovable property, that is he had a power of seeingthat her property is not alienated without his authority. The wifecould not act by or for herself in transactions relating to her immovableproperty, she was incapable of disposing of such property by her own act,something more was necessary to make the disposition binding. Theauthority or concurrence of her husband manifested in a particular way,a consent by writing was required, without that consent she was by hercoverture utterly disabled from transferring her immovable propertyto a third person. As there was not the written consent of the husbandthe deed executed hy Ango Perera in favour of the plaintifF did noteffectively transfer her interests to the donee—it is something morethan a voidable transaction.
It may be permissible to point out that, according to the systemsfounded on the Roman law, there is a distinction between nullities1 (1936) 38 N. L. R., 63, pp. 67 and 68.
DIAS J.—Almeda v. Disanayaka.
which are absolute, and those which are relative or respective. Wherethe act is absolutely null, it can receive no ratification which can byretroaction render it valid at its commencement. But where the nullityis respective, as is that induced by minority or coverture the act can beratified1, the ratification has relation to the date of the original act, andrenders it valid from the commencement. The nullity is establishedin favour of the husband, it is competent for him to renounce the benefitof the nullity 2. The deed P 1 would fall within the class of transactionswhich arc relatively null.
The appeal is dismissed with costs.
Dias J.—1 agree.