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Present: Wood Benton A.C.J. and De Sampayo A.J.
BOSAIBO v. ABBAHAM.
236—D. G. Pvtttalam, 2,428.
Married woman—Rents of immovable property—Separate property.
Bent of immovable property to which a married woman isentitled is her separate property, and she is entitled to acceptpayment of any snch rent and give a valid receipt for it.
THE facts are set out in the judgment.
O. Koch, for first defendant, appellant.—Payment of rent due bythe lessee to one of two joint lessors operates as a complete dischargeand the fact that the lessor giving the discharge is the wife of theco-lessor should make no difference. The plaintiff can sue onlyfor his share of the rent due. when his joint lessor refuses to join him.(1 N. L. B. 206, 7 N. L. R. 16.)
In any case the payment operates as a discharge of the lessee'sliability to the extent of the wife’s interests. The learned DistrictJudge is in error in applying section 19 of Ordinance No. 15 of 1876to the case. Although rent, being money, may be treated as movableproperty, section 9 empowers the wife to deal with the rents andprofits of the immovable property independently of the husband.
Similarly, in regard to damages claimed by the plaintiff, he canonly recover to the extent of his interest in the property leased, andas the wife makes no claim for damages in respect of her portionof the land, it is not open to the husband to recover any damagesaccruing in respect of the wife’s share of the land leased. The casemust be treated as one which is governed .by the Matrimonial BightsOrdinance, No. 15 of 1876,. for if the plaintiff wished to bring itwithin the operation of the Boman-Dutch law of community, theburden, was on him to prove a marriage in community.
First defendant should not have been condemned to pay the costsof the action. The substantial claim was for a cancellation, whichplaintiff has failed to obtain.
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E. W. Jayewardene, for respondent.—The District Judge waswrong in holding that | the payment was made. Assuming thepayment, it did not discharge the lessee either wholly or in part, asrent, being money, vested absolutely in the husband according tosection 9 of Ordinance No. 15 of 1876.
July 30, 1914. Wood Benton A.C.J.—
This is an interesting, but, in my opinion, it is not really a difficult,case. The plaintiff, who is the respondent, sued the first defendant,the appellant, claiming rent, and damages for breach of covenant,under an indenture of lease. 'The lease was granted to the firstdefendant jointly by the plaintiff and his wife, who has been madethe second defendant to the action, for she refused to be joined asa plaintiff. The rent claimed amounted to Bs. 900. The firstdefendant alleged that he had paid the whole rent to the seconddefendant, one of the joint lessors, and that the plaintiff had,therefore, no further claim against him'in respect of the debt. Thedamages were denied. The case went to trial upon six issues, ofwhich the first raised the question whether the rent had, in fact,been paid by the first defendant to the plaintiff. The second was:" Has the plaintiff alone the right to demand the Whole amount of'the rent due under the lease ?” The third and lourth concernedthemselves with the alleged breach of covenant and the claim fordamages. The fifth raised the question whether the first plaintiffwas entitled to a cancellation of the lease. And the sixth related tothe point as to whether the payment, if made, by the first defendantto the second discharged him from his liability for rent. Thelearned District Judge heard evidence on both sides, and came to thefollowing conclusions. He held on the facts that the first defendanthad paid the rent, as he alleged, to the second; that there had beena breach of covenant which entitled the plaintiff to damages, andthat the plaintiff was not entitled to have the deed of lease cancelled..He held on the law that the payment by the first defendant to thesecond did not discharge his obligation to pay the full rent to theplaintiff. On these findings the learned District Judge gavejudgment in the plaintiff's favour against the first defendant forthe Bs. 900 claimed as rent, and for Bs. 138 the amount at whichhe assessed the damages. The first defendant appeals. Severalpoints may be dismissed at once. The first defendant’s counsel hasnot contended that he can reasonably claim a cancellation of thelease. We have had the evidence read to us, and I see no groundfor differing from the conclusion of the District Judge that thepayment of the. Bs. 900 by the first defendant to the second wasactually made. The first defendant’s counsel has not pressed thepoint, which was taken, however, in his petition of appeal, that thedamages for breach of covenant have been wrongly assessed in theDistrict Court. He has confined his argument on that point to a
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contention with which' I shall deal when I have disposed ol thereal and important issue in the oase. The main ground on whichthe appeal has been argued before us is that the learned DistrictJudge was in error in holding that the payment of the rent by' thefirst defendant to the second defendant did not operate as a dischargeof the first defendant’s liability under the lease. The deed of leaseitself shows, although, as Mr. E. W. Jayewardene has pointed outin his argument on behalf of the plaintiff, its language is somewhatambiguous, that the plaintiff and his wife possessed separate interestsin some at least of the lands which formed the subject-matter of thelease. There was no issue upon that point, but the learned DistrictJudge has held that of the lands leased a one-third share belongs tothe second defendant, and a two-thirds share to the plaintiff. In thesecircumstances, the first defendant's counsel argues that, even if thepayment by his client to the second. defendant did not exoneratehim altogether, it should have been treated by the learned DistrictJudge as a discharge of the debt in so far as the wife’s interest in thelands was concerned. It appears to me that that contention iswell founded, and I am all the more disposed to give effect to' it,because I find that the plaintiff in his own evidence states that,when the first defendant approached him with regard to the paymentof the rent, he was prepared to accept the amount which wouldcorrespond to his interest in the lands, and leave the first defendantto pay the remainder to the second. The second defendant and . theplaintiff have unfortunately quarrelled, and they are not livingtogether. In so far as the facts are concerned, there seems to me tobe a strong case for an apportionment of the rent between thefirst plaintiff and the second defendant in conformity with theirrespective interests in the lands, whatever those interests may be.Does the law prohibit us from carrying out an arrangement whichis so eminently reasonable ? Counsel for the first defendant reliedon section 9 of the Matrimonial Bights and Inheritance Ordinance,1876 (No. 15 of 1876), for the purpose of showing that the rent ofany land belonging to the second defendant would be her separateproperty, that she would be entitled to accept payment of any suchrent and give a valid receipt for it to her debtor, and that, while shewould have, of course, no right to preclude her husband fromrecovering the portion of the rent that was due to him, her receiptwould be conclusive of the debtor’s liability so far as she wasconcerned. Mr. E. W. Jayewardene argued that section 9 of theOrdinance in question had not-this effect with regard to Such pro-perties as we are here concerned with; that while a married woman’simmovable property becomes her separate estate, she has only aprimd facie right to the rents of that immovable property, and thatthe husband may step in whenever he pleases and claim it as hisown under section 19. No authority was cited which would con-strain us to adopt that construction of the section and I am not
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Rosairo v.A brahcm
prepared to give effect to it. Seotion 9 qlearly provides, by necessaryimplication, that not only the immovable property with which itdeals but the rents of that property become the married woman’sseparate estate. The object of the section was, in my opinion, toconfer on married women the kind of interest in property which theCourts of Equity in England, and subsequently the Married Women'sProperty Act, 1870, recognized. The interpretation that I put on.this, section is, I think, strongly confirmed by the provision imposinga fetter on the power of a married woman to dispose of her immovableestate without her husband's written consent. The immovableproperty is erected into a separate estate. The fetter is imposed,and. then we have the clause which shows that there is no suchfetter as regard the rents of the immovable property, but that themarried woman may receive these and give a valid discharge inrespect of them to her debtor herself. I would hold, therefore,on the law, that the second defendant was entitled to receive,and to give the first defendant a valid discharge in respect of,the rent corresponding to her interest in the lands demised. Thisbrings me to the question of damages. As I have already indicated,the. ,first defendant’s counsel has confined his appeal on this point toa single contention, which is itself dependent on the success of hisargument under section 9 of Ordinance No. 15 of 1876. The seconddefendant has made no claim for damages. The plaintiff is there-fore entitled to recover only damages corresponding to his sharein the rent. I agree with Mr. Jayewardene that we have not beforeus sufficient material to enable us to say what the,respective interestsof the husband and the wife in the lands leased really are. Iwould propose, therefore, the following order. The decree of theDistrict Court will be set aside, and the case sent back for a determi-nation on evidence, unless the parties should obviate the necessityfor an inquiry on .that point by an agreement before the Districtjudge, of what are the respective interests of the plaintiff and thesecond defendant in the lands demised. The District Judge willthen enter up decree in the plaintiff’s favour for the amount of rent,and for the amount of damages, which correspond to his interestsin the lands. The first defendant has succeeded on all the materialpoipts in the appeal, and he is, therefore, entitled to the costs of theappeal. There will be no costs to either side in the District Court.The costs, if any, of any further inquiry before the District Judgewill abide the event.
The District Judge has dealt with this case on the footing that itis one to which Ordinance No. 15 of 1876 applies, and we havetreated it on the same footing here. I would, however, reserveliberty to the plaintiff, if he is in a position to do so, to show thatthe. marriage was actually a marriage in community.
De Saupayo A.J.—I entirely agree.
ROSAIRO v. ABRAHAM