011-NLR-NLR-V-14-PORONCHIHAMY-v.-DAVITHAMY.pdf
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Present: Wood Renton J. and Grenier J..1
PORONCHIHAMY v. DAVITHAMY.
0. C. Tangalla, 1,074.
Conveyance of Iftnd by wife in favour of husbatid— Written consent ofhusband, is not necessary—Ordinance No. IS of 1876, ss. 9 and 13—Prescription.
The written consent, of the husband is not neoessary to a deed ofconveyance of immovable property by the wife in her husband’sfavour.
HE facts are set out in the judgment of Wood Renton J.
//. A. Jayewartlene, for the defendant, appellant.
Bartholomeusz (with him Vytialingam), for plaintiff, respondent.
Cur. adv. vuh.
December 5, 1910. Wood Renton J.—
The respondent is the wife of the appellant, and she brings thisaction to obtain cancellation of a deed which she alleges that theappellant had fraudulently induced her to execute. The deed dealswith a 5/48th share of the land described in the plaint. The landoriginally belonged to the appellant’s mother, and he derived titleto it from her partly by inheritance and partly by deed. By deedNo. 108 of December 20, 1885, the appellant transferred the land toBabun Appu, who sold it to the respondent on deed 5,406 of August20, 1888. The deed by the respondent in favour of the appellantis dated August 25, 1906, and it purports to be an out-and-outtransfer of the land in consideration of the payment by the appellantto the respondent of a sum of Rs. 500. The appellant alleges in hisanswer, and he said in his evidence, that this consideration wasactually paid. No consideration, however, passed in the presenceof the notary. The deed by the respondent in favour of the appel-lant has not been signed by the appellant. There is nothing on theface of the deed to show that he is the husband of the grantor, andit is admitted that neither in the deed itself, nor in any otherwriting, has he given an express assent to his wife’s disposition ofher property.
It was argued in the Court below that the present action was notmaintainable, inasmuch as it had not been brought within threeyears from the accrual of the cause of action, as required by section11 of Ordinance No, 22 of 1871. The deed was executed on August
!. 1910
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Dm. r,t 1910WoodJIknton J.
Poronrhi •hamy v.JJai'ifltajni/
23, 1906, and the action was not instituted till June 23,1910. Thelearned District Judge over-ruled this point, on the ground that therespondent’s cause of action accrued only when it became clearthat the probable effect of the deed would be to defraud her, andthat this had taken place when the appellant mortgaged the propertyby deed No. 1,566 dated November 1, 1906. On October 16, 1909,the respondent, in D. C. Tangalla, 1,025, applied under section 16 ofOrdinance No. 15 of 1876 to have her deed in the appellant’s favourcancelled. The District Judge held that she should bring a regularaction to set aside the deed, and that judgment was affirmed by theSupreme Court in appeal. Under these circumstances he held thatthe present action was not barred by prescription. This questionwas scarcely touched upon in the argument before us in appeal,but I see no reason to differ from the view that the District Judgehas taken of it. The District Judge held, however, purporting tofollow the decision of the Supreme Court in Ponnamal v. Pattaye1that it was imperative that the husband should at least signify inwriting his assent to any deed executed by his wife which hadthe effect of alienating her immovable property ; and as in thepresent case such written assent was admittedly wanting, the deed,in his opinion, was void, and accordingly he gave judgment in therespondent’s favour, and ordered the appellant to bring the deedinto Court for cancellation.
In Ponnamal v. Pattaye1 the wife’s deed was in favour of a thirdparty. That case does not, therefore, decide the question whetherthe husband’s written consent is necessary to a deed by the wife inher husband’s favour. No authority was cited to us on this pointin the argument, and I have myself been unable to find any. Thepoint is therefore to be decided on the language of Ordinance No. 15of i876 itself. It is section 9 of that Ordinance which requires thewritten consent of the husband to the alienation inter vivos by thewife of her immovable property. A later section, however, section13, expressly validates any grant, gift, or settlement of any property,movable or immovable by one spouse in favour of the other duringthe marriage. In the present case the learned District Judge hasheld that no consideration was paid by the appellant to therespondent in respect of the execution of the deed. The deed is,therefore, a voluntary grant within the meaning of section 13 ofOrdinance No. 15 of 1876, and as such it appears to me, although Ihad some hesitation in coming to this conclusion, not to fall withinthe provision of the earlier section (section 9), which makes thehusband’s written consent necessary to dispositions by the wife intervivos of her immovable property. The object of that requirement is,I think, to see that the wife is protected by her husband’s advice inher dealings with third parties. I do not see that the husband’swritten consent would afford the wife any protection in her dealings
'(J0/0) M ,Y. L. It. 201.
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with BtT husband Wmself. I think, therefore, that th§ dttiiigR pf
the learned Distriit.
Judge cannot be maintained on the fFPURd 8R
… , .But I see no reason why th§ wifewtohbehas^prKsly toea.. — wit, if
should remain without redress in such a case as w._ t•
is able to establish affirmatively the fact that she was fraudulently
induced by her husband to execute the deed that she impugns. Mr.
Hector Jayewardene contended, in answer to a question put to him
by the Bench, that the doctrine of fiduciary relationship does not
apply as between husband and wife. There has been considerable
divergence of opinion in the English Courts (I say nothing as to the
Roman-Dutch Law, because it was not touched upon in the argument
before us) on this point, and in the latest case that I have been able
to find (Howes v. Bishop1) the majority of the Court did not go
further than to hold that the mere fact of marriage did not necessarily
give rise to such a relationship. The effect of such a relationship,
if it existed, would merely be to throw—I am taking the concrete
case now before me—on the husband the onus of proving that the
grant here in question had not been obtained from the wife by undue
influence of any kind, that she had known what she was doing, and
that she had done it voluntarily. So far as I am aware, however,
no doubt has been thrown in any of the English decisions on the
right of a wife to take on herself the burden of proving that a deed
by her in her husband’s favour had been obtained by him from her
by fraud. Moreover, it may be that the wife in the present case
comes within the class of persons who are entitled to set up a plea of
non est factum. 1 do not think that this issue can be decided on the
evidence as it stands. There is not sufficient proof before us as to
the circumstances under which the deed of August 23. 1906, came
to be executed, and as to whether or not the wife knew the nature
of the instrument that she was executing.
I would set aside the decree under appeal and send the case backfor framing of any issues suggested by the parties and accepted bythe Court which will enable these points to be determined. Bothsides, I think, should have as full power to call evidence in regard toall such issues as if the case were coming on for trial for the firsttime. The costs of the appeal, of the original and of the subsequentproceedings, should, I think, be left to the discretion of the DistrictJudge.
gff. s, Jgjfl
WmhbRjss-¥»S 3:
Poronchl-
hfimy
DavUhamtj
Grenier J.—
I agree to the order proposed by my brother. The only pointabout which I was doubtful was whether the written consent of thehusband under section 9 of Ordinance No. 15 of 1876 was necessaryto the alienation of the land in question. Viewed in the light of theprovisions of section 13,1 think that where the alienation is by the
’ (1909) 2 K. B. 390.
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bee. 6,1910
Urknuch J.
wife in favour of the husband no written consent is at all necessary.The object of section 9 is to enable the husband {g. exercise suchcontrol over the wife as to prevent, her from aieiriating her immov-able property in..a nuttier detrimental to her own interests. Theprovision a wholesome one, and qu ite independent of section33, which expressly validates transactions regarding immovableproperty between the spouses during the marriage.