PONNUPILLAI (widow of V. Kathiragamar), Appellant, and C. KURAMARAVETPILLAI, Res

051-NLR-NLR-V-65-PONNUPILLAI-widow-of-V.-Kathiragamar-Appellant-and-C.-KURAMARAVETPILLAI-Res.pdf


Pormupillai v. KumaravetpiSai
241
[In the Privy Council]
_1963 Present: Viscount Radellfie, Lord Morris of Borth-y-Gest,
Lord Guest, Lord Pearce, and Sir Kenneth Gresson
PONNUPILLAI (widow of V, Kathirgamar), Appellant, and
KUMARAVETPILLAI, Respondent
Privy Council Appeal No. 5 op 1961
S. C. 739 of 1956—D. G. Jaffna, 78/L
Sale of land at groaa undervalue—Voidability on ground of Iaesio enormia—Thesa-valamai—Lunacy of husband—Scope of jurisdiction of Court to grant permis-sion to wife to sell her separate immovable property—Invalidity of generalpermission—Consent of Court must be ad hoc and relate to specific transaction—Matrimonial Rights and Inheritance Ordinance (Cap. 57)—Jaffna Matri-monial Rights and Inheritance Ordinance (Cap. 58), ss. 2, 5, 6, 8.
A sale of immovable property is voidable if tbe consideration afforded isso much an undervalue as to amount to Iaesio enormia.
Tbe plaintiff’s daughter sold to the defendant for Rs. 20,000 a land and itsappurtenances which were worth more than Rs. 40,000 at the time of the sale.After the vendor died, her mother, who was entitled under the Thesavolamaito any land belonging to her daughter at her death, instituted the present actionclaiming that the sale to the defendant was invalid on the ground of Iaesioenormia.
Held, that inasmuch as the consideration for the sale was less than 50 per cent,of the true value of the property the sale was invalid on the ground of Iaesioenormia. There was no special consideration present in the case whioh barredthe application of tbe Iaesio enormia principle.
Section 8 of the Jaffna Matrimonial Rights and Inheritance Ordinancedoes not confer on a District Court jurisdiction to grant a married womangeneral permission to deal, without the consent of her husband, with all herimmovable property as she might think best. Under that Seotion tbe Court cangive consent only to a particular transaction actually proposed at the time ofthe order. An order that does not at least specify the nature of the transactionconsented to, Bale, lease or mortage etc., and control in some degree the price orother financial consideration involved and the limit of time within which thetransaction consented to must be effected if the consent is shill to be in force,is not within the jurisdiction conferred upon the Court. Accordingly, a transferof property by a married woman without her husband’s consent and withoutvalid authorisation by Court is liable to be set aside by Court after her death,at tbe instance of an heir upon whom the property would otherwise havedevolved.
11—LTV
^ XV(10/SO'
242
VISCOUNT RADCLIFFE—PonmipiUai v. Kumarwetpittai
Appeal from a judgment of the Supreme Court dated 23rd Novem-ber, 196®.
In March 1949 a married woman, averring that her husband hadbecome a lunatic and was therefore unable to give his consent to disposeof her dowry lands, applied to the District Court under section 8 of theJaffna Matrimonial Bights and Inheritance Ordinance for its permissionto mortgage, lease or sell the lands which her mother, the appellant,had given her as her dowry. On the 8th September 1949 the Courtmade an order in general terms granting her leave to “ mortgage orsell her properties without the concurrence of her husband, whicheveris more profitable Thereafter she entered into a series of transactionswith regard to her dowry lands. Tbe last transaction was on the 2ndJune 1954 when she transferred a land to her husband’s brother (therespondent) by a deed purporting to be a deed of transfer and sale.She died without issue on the 6th May 1955, and the appellant, as hermother, was entitled under the law of Thesavalamai to the successionto any land belonging to her daughter at her death. The appellantinstituted the present suit for the recovery of the property transferredby the deceased to the respondent on tbe 2nd June 1954. The trialJudge entered judgment on the 18th October 1955 in favour of theplaintiff. He regarded her as entitled to avoid the transfer to thedefendant on three separate grounds, viz., (1) the order of the 8thSeptember 1949 was made by Court without jurisdiction ; (2) the trans-action of 2nd June 1954 was not in reality a sale because no considerationwas paid by the respondent ; (3) if there had been a sale, the principleof laesio enormis applied to the case. The Supreme Court, on appeal,was of the opinion that the District Judge was wrong in holding thatthe Court had no jurisdiction to make the order of September 1949 andon that ground alone, and without consideration of the other two groundsstated by the District Judge, allowed the appeal of the defendant. Theplaintiff thereupon preferred the present appeal to the Privy Council.
F. N. Gratiaen, Q.G., with R. K. Eandoo, for the plaintiff-appellant.
J.G. Le Que-sne, Q.G.> with Mervyn Heald, for the defendant-respondent.
Cur. adv. vult.
July 23, 1963. [Delivered by Visooxnra Baocixbt®]—
This is an appeal from a judgment of the Supreme Court of Ceylondated 23rd November 1959, whiob reversed a judgment of the DistrictCourt of Jaffna dated 18th October 1065. The suit in which thesejudgments were given was one instituted by the appellant for the recoveryof certain land and premises in the Jaffna District which had beentransferred to the respondent by a deed, purporting to be a deed of
VISCOUNT RADCLIFFE—PonnupUlai v. Kumaravelpillai
243
transfer and sale, executed on the 2nd June 1954 by the appellant’sdaughter Sivapakkiam. Sivapakkiam died without issue on the 6thMay 1955, and the appellant, as her mother, was entitled under theLaw of Tesawalamai, which regulated the property rights of her family,
to the succession to any land belonging to her daughter at her death.
It was the purpose of the appellant’s suit to establish that the purportedtransfer to the respondent was invalid. The trial judge upheld thisclaim and made an order declaring that the deed should be set aside andthe appellant restored to the possession of and title to the land, subjectto payment of a sum of Rs. IS,500 to the respondent as compensationfor moneys expended on its improvement. The Supreme Court reversedthis order and directed that the appellant’s suit should be dismissed.
The trial judge decided against the respondent on three separate andindependent grounds. In order to appreciate their significance it isnecessary to state briefly what were the facts of the case.
Sivapakkiam was married to the respondent’s brother in October1928. The parties were Tamils of Jaffna and, as such, governed bythe rules of the Tesawalamai. On her marriage her mother gave hercertain pieces of land as her dowry, and the land which was in disputein the action (hereinafter called “ the disputed property ”) was the firstitem of those pieces. Sometime in 1940 or 1941 Srvapakkiam’s husbandbecame a lunatic, and in March 1949 she applied to the District Courtof Jaffna for its permission to raise money on her dowry lands by wayof mortgage, lease or sale. The Court’s jurisdiction to give leave to awife under the Thesawalamai regime to deal with her immovable propertyis conferred by a special statute, the Jaffna Matrimonial Rights &Inheritance Ordinance (C. 58 of 1956), which will be referred to herein-after as “the Ordinance”. Its provisions, the effect cf which formsone of the major issues of this case, will be set out later in this Opinion:for the moment it is sufficient to say that on the 8th September 1949the District Court made an order in general terms granting her leaveto “ mortgage or sell her properties without the concurrence of herhusband whichever is more profitable ”.
Having obtained permission in this form, Sivapakkiam entered into aseries of transactions with regard to her dowry lands, the first of which wasin December 1951 and the last (the disputed transfer) in June 1954.First, on 3rd December 1951, she mortgaged one of her properties forRs. 2,000; next, on 10th October 1953, she mortgaged this and othersfor Rs. 7,000, paying off the earlier mortgage out of the proceeds andusing the balance towards building shops on the disputed property. On21st November 1953 she raised a further sum of Rs. 1,500 on the samesecurity as that of the mortgage of 10th October 1953. This moneytoo went into the shop building, On 17th December 1953 she mortgagedthe disputed property for Rs. 15,000, of which some part at any ratewas used towards completion of the buildings.
244VISCOUNT RADCLEITB—Pentyu/piUai v. ZtmwooeipiUai
By these taansactdons Sivapakkiam had encumbered her dowryproperties in order to ram money for the improvement of the disputedproperty by the erection on it of shops or godowns. Then, on 2nd June1954, same the transfer by her to the respondent, under which, afterreciting the mortgage of 17th December 1953 for Rs. 15,000 and statingthat she bad agreed with him for the absolute sale and assignment tohim of the disputed property "subject to mortgage" for the price ofRs. 20,000, “ which includes the amount due on the mortgage ", sheconveyed and transferred the disputed property to the respondent" in consideration of the sum of Rupees Twenty Thousand (Rs. 20,000)of lawful money aforesaid well and truly paid to the Vendor by thePurchaser (the receipt whereof the Vendor do hereby expressly admitand acknowledge)
It will shortly be seen, what the District Judge found to be the realnature of this purported transfer. The respondent’s story, which wasnot believed, was that he paid Sivapakkiam Rs. 4,500 on the occasionof the transfer and himself paid off the mortgage of Rs. 15,000 out of asubsequent mortgage which he raised on the disputed property. Noone, at any rate, suggested that she got more out of the transactionthan these Rs. 4,500, though the deed of transfer is so ambiguously wordedthat it might well be supposed that she was selling her equity ofredemption for Rs. 20,000.
However that may be, Sivapakkiam died on 6th May 1955 withoutleaving any property of any value whatsoever.
Shortly after her death the appellant instituted the present suit forthe recovery of the disputed property. It was tried by the DistrictJudge at Jaffna (P. Sri Skanda Rajah J.) and after hearing a considerablevolume of evidence, including that of the respondent, he found in favourof the appellant’s claim. He regarded her as entitled to avoid thetransfer to the respondent on three separate grounds.
Hirst, he did not think that the Ordinance, properly construed,conferred on the Court jurisdiction to grant a married woman the kindof general liberty to deal with her immovable property as she mightthink best which the order of September 1949 had purported to conferin this case. What was required by the Ordinance, he thought, wasan order giving consent to a particular transaction actually proposedat the time of the order, with information before the Court as to thevalue of the land and the teams of the desired transaction. Consistentlywith this reading of the soope of the Ordinance he held that Sivapakkiamhad never obtained any valid authority to transfer her land without herhusband’s consent and, on this ground alone, the transfer of it in June1954 was a nullity,
VISCOUNT RADCLIFFE—Ponnupiliai v. KumaravetpiUai
245
Secondly, even if she had had a valid authority to part with her landby way of sale, the learned Judge held that she had not in fact madeany transfer or sale in this ease. Despite the respondent’s evidence,Jhe__regarded the purported transfer as a sham and a nullity. He didnot believe that any money at all had been paid to Sivapakkiam on theoccasion of the transfer, and he returned answers to two issues framedat the hearing (issues 10 (a) and (b)) to the effect that no considerationwas paid by the respondent in respect of the deed of transfer and thatthe transaction was not in reality a sale. It would follow, of course,that if her only authority under the Court’s order was to mortgage orsell, she could not validly divest herself of her’land by a voluntary deedof transfer without consideration.
Thirdly, the learned Judge decided that, even if there had been a sale,the principle of laesio enormis applied to the case. Sivapakkiam hadparted with her land at what in English law would be called a grossundervalue and the divesting was therefore voidable as between theappellant, claiming through her, and the respondent who retained theland. The answer that he returned to issue 12 was to the effect that atthe time of the purported transfer the disputed land and its appurtenances-,were worth more than Rs. 40,000 and that the deed was liable to be setaside on the ground of laesio enormis. Since on any view not more thanRs. 20,000 had been paid or made available for the land and the principleof laesio enormis is applied where the consideration is less than 50 percent of the true value, the learned Judge’s finding necessarily followedhis assessment of the figures of valuation, unless some special considerationwas present in the case which would bar the application of the laesioenormis principle.
When the matter reached the Supreme Court on appeal the two Judgeswho heard it (Basnayake C.J. and Pulle J.) differed from the DistrictJudge on the question whether the Court order of September 1949 waswithin its powers under the Ordinance. The latter had based his opinionon this point on two separate grounds: one, which is not now materialand was not advanced by the appellant before the Board, that Siva-pakkiam’s application had been confined to obtaining authority to leaseor mortgage only, not to sell, and that the Court had therefore exceededits jurisdiction in granting liberty to sell, and the other, as alreadymentioned, that a general liberty to sell or mortgage was not within therange of order that the Ordinance provided for. Their Lordships donot need to say anything as to the first ground relied on by the DistrictJudge: but the second is plainly one of some considerable importanceto those administering the Ordinance and the parallel statutory provisionsof the Matrimonial Rights & Inheritance Ordinance (C 57 of 1936). Asto this the Supreme Court was of the opinion that the District Judgewas wrong in holding that the Court had no jurisdiction to make the orderof September 1949. Their view seems to have been expressed in the
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-K 12957 (10/631
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VISCOUNT RADCLIFFE—PonnupiUai v. KumaravtipiUo*
following passage from the judgment delivered by Basnayake CJ.“ It ia the Court that is empowered to decide the extent and nature of theauthority it will grant having regard to the circumstances of each case.It may be limited or unlimited as to time. It may give absolute authorityfor disposal or fetter the authority by restrictions and conditions. … Itmay authorise a particular method of dealing with or disposing of theproperty, such as lease for a period, mortgage or sale or any combinationof those methods ”,
It admits of some doubt whether these observations are really directedto the general considerations of principle that had weighed with theDistrict Judge in coming to his conclusion as to the true nature of theCourt’s jurisdiction under the Ordinance. I heir Lordships must addressthemselves later to this point. At present what has to be noted is that,having expressed its opinion on the issue of jurisdiction, the SupremeCourt treated that as disposing of the whole case in favour of the res-pondent and involving the dismissal of the appellant’s suit. The closingparagraphs of the judgment of Basnayake C.J., with, which Pulle J.agreed, run as follows:—
“ For the above reasons the judgment of the learned District Judgedeclaring that Deed P13A is null and void on the ground that the Orderof the Court authorising Sivapakkiam to sell the land in dispute is onemade without jurisdiction is reversed, and the Plaintiff’s action isdismissed with costs. The Appellant is declared entitled to the costsof the appeal.
The opinion I have formed on the validity and scope of the order ofthe District Court authorising Sivapakkiam to mortgage or sell herlands makes it unnecessary for me to refer to the other questionsdiscussed by the learned Judge. ”
It appears to their Lordships to be indisputable that the learned mem-bers of the Supreme Court were under a misapprehension in supposing thatthe appeal before them must succeed once they bad arrived at the decisionthat Sivapakkiam enjoyed legal authority to dispose of the disputed pro-perty by way of sale. The judgment of the District Court did not standor fall by this decision. The District Judge had found against the res-pondent on two separate issues which were independent of the issue as toSivapakkiam’s authority and, in truth, were only relevant on the assump-tion that she had the necessary general authority to sell. He had held,after hearing the evidence, that the transfer relied upon was not asale at all, and that, even regarded as a sale, the considerationafforded was so much an undervalue as to amount to laesio enormia andso to render the transaction voidable. Neither of these issues wasobserved upon at all in the judgment of the Supreme Court; yet, if theDistrict Judge’s findings upon them are not reversed, there cannot beany case for dismissing the appellant’s suit and allowing the respondentto retain the disputed property.
VISCOUNT RAJDCLIFFE—PonnupiUai v. KumaraveipiUai
247
The appeal to the Board therefore stands in this peculiar situation.The Judge who tried the suit in the District Court made an award infavour of the appellant on three separate grounds, of which one only hasbeen disapproved of by the Supreme Court. The appellant asks that the•original judgment in her favour should be restored, since she is entitledto stand at least on the two other independent grounds, and the respon-dent is bound to concede that this must be so unless he can satisfy theirLordships that it would be wrong to uphold the trial Judge’s decisionon either of these two other grounds.
Their Lordships see no warrant for reversing his findings on either ofthem. On the question whether there ever was a sale at all, the evidenceprovided by the record is certainly thin; but it must be rememberedthat the Judge, after hearing the respondent’s evidence, refused to believethat he had any money available for the ostensible purchase in June1954. If he did not accept the respondent’s story that he had paid Siva-pakkiam money on the occasion of the transfer, it followed as a matterof course that the deed of transfer, with its purported payment and receiptof Rs. 20,000, was a mere sham. And the Judge had before him certainsupporting material which appeared in the course of the trial. Thecircmnstance to which he drew attention in his judgment and whiohevidently weighed with him was that on 21st June 1954, after the dateof the transfer and at a time when Sivapakkiam had ostensibly lost allinterest in the disputed land, she signed a receipt document jointly withthe respondent, acknowledging an advance payment from a lessee of oneof the godowns on the land, in a form which patently recognised her ashaving for the future a continuing interest in the property.
Apart from that, it emerged in the evidence of Mr. Kanagasabapthy, anotary who had acted fcr Sivapakkiam’s family, that at some date earlierin the year of transfer the respondent had come to him and asked him toattest a deed of donation of the disputed property and that he bad refusedto do so, because, knowing that the appellant was alive and contingentlyinterested in her daughter’s dowry lands he did not want to offend her.The deed was in fact attested by another notary, who had never beforeacted for Sivapakkiam or for the respondent. The deed itself, as theJudge observed, does not state in the attestation that the considerationmentioned in it had passed in the presence of the notary.
In the face of the District Judge’s finding on these facts their Lordships,acting as an appellate Court, would see great difficulty in reversing it.Nor do they think that the Judges of the Supreme Court would be in anydifferent situation, if the course were to be adopted of further pro-longing these proceedings by remitting the appeal to them for theirconsideration of the issues hitherto not passed upon. It is howeverunnecessary to express a final conclusion on this point since, even if theJudge’s view as to the true nature of the transfer deed could be treatedas reversible, his finding upon the issue of laesio enormis, which is anentirely independent ground of claim, appears to them invulnerable.
24S
VISCOUNT RAD CLIFFS—FoWMp&lai v. KumaraoeipMai
This issue, to which the Judge gave careful attention, is a simple one'offact, dependent upon the evidence of land values called before and
accepted by him. There was ample evidence to support his findingthat the value of the land at the date of transfer exceeded Rs. 40,000 :evidence from the village headman, from a retired surveyor, who wasalso chairman of the village committee, from a purchaser of neighbouringland. He accepted their evidence and came to the conclusion that itwas " clear that the consideration of Rs. 20,000 mentioned …. ismuch less than half the value of the land at the time of the alleged sale
It was suggested on behalf of the respondent that further scrutiny of theevidence might show some special relationship between Sivapakldam andthe respondent in connection with the transfer that would make itinequitable to apply the principle of laesio mormis to the case.
She had continued to live with her husband’s family after his mentalbreakdown and the respondent, according to him, had often helped her inher affairs : it is not at all impossible that she was ready to make a presentof the land to him out of a sense of gratitude. Indeed the respondent saidin one passage of his evidence " Certainly she would have preferred to giveher property to me than giving it to anyone else, because I have renderedher considerable assistance during her lifetime ”. These reflections how-ever are of no assistance to a party who has to rely on a transfer or sale tosupport his title and who has in fact put forward a sale deed as the recordof his transaction. Similarly, it was urged that a remedy based on laesioenormis should not be afforded if the transferor has sold deliberately at anundervalue with a clear understanding of the true values involved. But,whatever other difficulties that argument might meet with in thecircumstances of this case, it depends on the assumption of a state of factwhich is actually negatived by the Trial Judge’s own finding. Sivapak-kiam, he said, “ must have been looking up to the defendant for help.It is not likely that she would have been aware of the actual value of theland at the time of [the transfer deed] even if she intended to sell theland ”.
For these reasons their Lordships are of opinion that the appeal mustsucceed in any event, with the consequence that the District Judge’sorder must be restored. Since, however, both he and the Supreme Courthave dealt with the question of the scope of the Court’s jurisdiction underthe Ordinance and have expressed conflicting opinions with regard to it,their Lordships thick that it is desirable that they should themselvesrecord their view on this matter.
The Ordinance is styled the “ Jaffna Matrimonial Rights & InheritanceOrdinance ” and is declared by section 2 to apply only to those Tamils towhom the Tesawal&mai applies and “ in respect of their movable andimmovable property wherever situate ”. It was first enacted on the 17th
/ISCOtnSTT RADCLIFPE—PonnupiUai v. KumaravetpiUai
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July 19J1 and is now C. 58 of 1956. The material sections of it which itis desirable to set out verbatim are sections 5, 6 and 8 and they run asfollows :—
“ 5. The respective matrimonial rights of every husband and wife"married after the commencement of this Ordinance in, to or in respectof movable or immovable property shall, during the subsistence ofsuch marriage, be governed by the provisions of this Ordinance.
All movable or immovable property to which any womanmarried after the commencement of this Ordinance may be entitledat the time of her marriage or which she may during the subsistence ofthe marriage acquire or become entitled to by way of gift or inheritanceor by conversion of any property to which he may have Deen so entitled•or which she may so acquire or become entitled to shall, subject andwithout prejudice to the trusts of any will or settlement affecting thesame, belong to the woman for her separate estate. . . Such womanshall, subject and without prejudice to any such trusts as aforesaid,have as full power of disposing of and dealing with suoh propertyby any lawful act inter vivos without the consent of the husband incase of movables, or with his written consent in the case of immovables,but not otherwise, or by last will without consent, as if she wereunmarried.
8. If in any case in which the consent of a husband is required bythis Ordinance for the valid disposition of or dealing with any propertyby the wife, the wife shall be deserted by her husband or separatedfrom him by mutual consent, or he shall have lain in prison undera sentence or order of any competent Court for a period exceeding twoyears, or if he shall be a lunatic, or idiot, or his place of abode shall beunknown, or if his consent is unreasonably withheld, or the interestof the wife or children of the marriage require that such consent shouldbe dispensed with, it shall be lawful for the wife to apply by petitionto the District Court of the district in which she resides or in whichthe property is situated for an order authorising her to dispose of ordeal with such property without her husband’s consent; and suchCourt may, after summary inquiry into the truth of the petition,make such order, and that subject to such conditions and restrictionsas the justice of the case may require, whereupon such consent shall,if so ordered and subject to the terms and conditions of such order,become no longer necessary for the valid disposition of or dealing withsuch property by such woman. . . Such order shall be subject toappeal to the Supreme Court. ”
In considering the role of the District Court in making an order undersection 8 it is necessary to remember that the Ordinance was introducedas an enabling measure with regard to a married woman’s power of disposalover her property. Though section 6 gives her unrestricted power of
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VISCOUNT KADCJLm?©—v. KumareuttpiOai
disposition over movables, her husband's written consent is required tomake valid any inter vivos disposition of any of her immovables.
Similar provisions in identical terms are found in the General Matri-monial Rights & Inheritance Ordinance of Ceylon, an enactment whichdates back to 1S76 and is now C 57 of 1956. In dealing with the purposeand significance of the husband’s consent under these provisionsthe Courts in Ceylon appear to have laid, down and accepted twopropositions. First, the husband is the wife’s protector with regard toproposed dealings with her property. Thus in the case of S. A. PublinaSilva Hamine v. J. A. Don JjJgonis Appuhamy1 it was said by Bonser
J. at 363, "The object of requiring her husband’s consent is toprotect the married woman, and prevent her being inveigled into somefoolish disposition of the property, and perhaps cheated out of it. It issupposed that the husband would protect the interests of his wife and seethat she does not do anything foolish.” It is not his interest thereforethat he is to protect, it is hers. Secondly, and consistently with thatconception, the husband cannot validly give a general consent to futuredispositions of immovables by his wife, something that would amountto a release from his protectorship : he must consider any proposed dis-position as it arises, according to its terms, and either give or with-hold his consent. See Wickramaratne v. Dingiri Baba2; Fradd v.F&mando3. In the former case it was evidently the view of both membersof the Court, (Wood Renton and Pereira JJ.) that, to be a valid consent,the consent of the husband must be directed ”with special reference to theparticular disposition ” of the particular property in question; whilein the latter Dalton J. expressed himself as satisfied on the authorities-that a husband’s general consent was insufficient to constitute a consent-for the purposes of the General Ordinance.
Now the liberty given by the Court’s order of September 1949 was tomortgage or sell any of the dowry properties, :: whichever is moreprofitable ”, without restriction of time, price or terms. A consent asgeneral as this would not, their Lordships think, have been valid as ahusband’s consent under section 6 of the Ordinance. The question iswhether it is valid under section 8 when the Court acts in place of thehusband.
There are two possible ways of approaching the construction of thissection. One is to read it in close relation to section 6 and to regard thejurisdiction of the Court as strictly an alternative to the husband’sjurisdiction for which it is substituted. This is the view alreadyexpressed by Bonser C.J. in Hamine v. Appuhamy supra, when he said“ The Court is therefore substituted as the protector of the wife Soregarded, section 8 would not be likely to authorise the Court to grant adispensation of quite a different character from that required of the
1 (1901) 2 Browne’s Reports $62.* (191$) 2 Court oj Appeal Cases 132 –
» (1934) 36 N. L. R. 124.
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husband. The other approach is to read section 8 as operating withoutany special reference to the nature of a husband’s consent under section 6and to treat it as authorising the Court, at its discretion, to make anyorder, general or special, limited or unlimited, as it may think appropriateJn the circumstances to enable a wife to have free disposition of herimmovable property.
There are no doubt persuasive arguments to support either construction.Certainly, the wording of section 8 is wide enough to admit of the latterapproach. Nevertheless their Lordships are of opinion that the pre-ponderating arguments tell against it. They can be marshalled as follows.First, the purpose of section 8 cannot but be in some form to give thewife the protection of the Court when she cannot have that of herhusband. But, if the Court is empowered to make an order as compre-hensive as one giving her liberty to dispose of her property generally,it is in truth affording her no protection at all against the occasions.that come later when actual transactions take place. The Court isempowered to hold a summary enquiry into the truth of the petitionand that inquiry should indeed show whether at the time of holdingit the circumstances of the husband’s disability do in fact exist. But,as to the wife herself, all that the Court, if minded to give her generalauthority, could ascertain at the time would be that she appeared tobe a reasonably competent and businesslike person, and an impressionso formed would be singularly ineffective as a guarantee that on someunascertainable future occasion her competence might not be defectiveor abused. In effect, as the trial Judge observed in this case, a generalliberty such as was conferred by the order of September 1949 would havechanged her status, qua immovables, from married woman to femme soleyand a change of that quality does not appear to their Lordships to bethe kind of thing that section 8, as expressed, has in contemplation.
Secondly, neither the wording nor the content of section 8 seems to-favour the wide reading adopted in the Supreme Court’s judgment.What the section envisages in its opening is a case in which a contem-plated disposition of a particular piece of property is held up throughthe absence of a husband’s consent, and what is to follow is an applicationfor leave to deal with that property without having to obtain the consent.The Court’s order, if made, “ dispenses with ” his consent: and, if it ismade, bis consent is no longer necessary for " the valid disposition ofor dealing with such property ”. All this seems to tie the Court’sorder very closely to the husband’s consent. If then the consent inhis case would have to be ad hoc and related to a specific and particulartransaction, it looks very much as if the Court’s consent, given in hisplace, would have to be of the same order.
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VISCOUNT RADCLIFFE—PornutpUioi t>. KumaravctpiUai
Thirdly, section 8 contains a list of the different circumstances inwhich the Court may act when the husband's consent is lacking. Almostnone of the various categories could be said to describe a fixed orpermanent state of affairs : most of them are plainly transitory or capableof being so. Thus a husband may be in prison under a sentence ofmore than two years’ duration, or his place of abode may be unknown,or his consent may be unreasonably withheld from the transactionproposed. It would seem a curious jurisdiction to confer on the Courtas arising out of those circumstances that it should be able, on proofof them, to emancipate the wife permanently from her husband’s rightor duty of protection with regard to her immovables generally, Suppose,it may well be aBked. that a husband comes out of prison or recoversfrom lunacy, or turns up from his unknown whereabouts, or the marriagedifference is reconciled, has the Court’s previous order power to overridethe necessity of his consent with regard to some future property trans-action, even though it is unwise or undesirable in itself and his objectionis well-founded '! No doubt, no Court is compelled to make generalorders in all circumstances. It may always limit or condition themeven though the wider jurisdiction is there. That is true enough—butit does not explain how a Court, unable to foresee the future, is todistinguish the cases that call for limited orders from those that justifygeneral orders, nor is the fact that some Judges may act prudently anargument for supposing that the Ordinance has contemplated givingauthority to aDy Judge to act unwisely.
Tor these reasons their Lordships think that the view of the DistrictJudge on this question of the Court’s jurisdiction under Section 8 of theOrdinance is to be preferred to that adopted by the Supreme Court.In their view an order that does not at least specify the nature of thetransaction consented to, sale, lease or mortgage, etc., and control insome degree the price or other financial consideration involved and thelimit of time within whioh the transaction consented to must be effectedif the consent is still to be in force, is not within the jurisdiction conferredupon the Court.
Their- Lordships will humbly advise Her Majesty that the appealshould be allowed, the judgment and decree of the Supreme Court dated23rd November 1959 reversed with costs to the appellant of the appealin that Court, and the Judgment and decree of the District Court atJaffna dated 18th October 1955 restored. The respondent must paythe appellant’s costs of this appeal.
Appeal allott ed.