SOMASUNDERAM PILLAI et al. v. CHARAVANAMUTTU et al

001-NLR-NLR-V-44-SOMASUNDERAM-PILLAI-et-al.-v.-CHARAVANAMUTTU-et-al.pdf


NEW LAW REPORTS OF CEYLONVOLUME XLIV.1042Present: Keuneman and Jayetileke JJ.
SOMASUNDERAM PILLAI et al. v. CHARAVANAMUTTU et al.
73—D. C. Colombo, 12,348.
Agent—Mortgage by agent professing to act as such—Outside the scope of hiscauthority—Ratification by principal—Validity of mortgage—Inhabitantof Jaffna—Tesawalamai—Jaffna Matrimonial Rights and InheritanceOrdinance (Cap. 48) s. 3.
Where an agent professing to act in his capacity of agent entered into amortgage bond on behalf of his principal and where it was open to the ,latter to repudiate the contract on the ground that the agent wasacting outside the scope of his authority,—
Held, that ratification of the contract of mortgage by the principalgave validity to the mortgage against himself.
Ratification must be evidenced by clear adoptive acts, which must beaccompanied by full knowledge of all the essential facts.
The second defendant is a Jaffna Tamil, whose father was also a JaffnaTamil born in Jaffna. Second defendant was born in Colombo andeducated in Colombo, where his father, who was in Government service,resided ordinarily, although his father had a permanent home in Jaffna.The 2nd defendant visited Jaffna occasionally but he was permanentlyresident in Colombo after marriage.
Held, that the 2nd defendant was not an inhabitant of Jaffna to whomthe Tesawalamai applied and that his wife, by virtue of section 3 of theJaffna Matrimonial Rights and Inheritance Ordinance, was governedby the ordinary law.
T
HE plaintiffs sued the defendants who are wife and husband on amortgage bond P 1 dated September 14, 1930, for the recovery of
Rs. 14,000 as principal and Rs. 14,000 as accrued interest. The mortgagebond was signed by the first defendant the wife and by her father as theattorney of the second defendant who was in England. The learnedDistrict Judge found that out of the sum of Rs. 14,000 alleged to havebeen paid to the attorney Rs. 8,000 has been given before the date of thebond in respect of the attorney’s personal transactions, and that theplaintiffs were aware of this. As regards the sum of Rs. 5,491.75,the District Judge held that it could not be recovered because the plaintiffshad failed to show that this sum was utilised for the benefit of the seconddefendant. He also held that the bond had not been ratified aftersecond defendant returned to Ceylon. As regards the first defendantthe District Judge held that she was governed by the Tesawalamai andthat the property mortgaged being thediatetam property she was notlegally empowered to deal with it and that on the personal covenantsshe was not bound unless she was assisted by the husband. . He dismissedthe action as against both defendants.
2
Somasunderam Pillai v. Chara-uanamuttu.
H. V. Perera, K.C. (with him S. J. V. Chelvanayagam), for theplaintiffs, appellants.—The issue relating to the ratification of hisattorney’s acts by the second defendant should, on the evidence, havebeen answered in the affirmative and in plaintiff’s favour. Short of anexpress declaration there is all the evidence necessary to establishratification by conduct. See Bowstead on Agency, Article 29 ; In reTiedemann & Leddermann Freres', Lapraik v. Burrows The case ofDodwell & Co. v. John et al.' which was cited in the District Court is notapplicable to the facts of this case. There was no collusion between theplaintiff’s and the second defendant’s agent. Dodwell & Co. v. John et al.(supra) is discussed in the latter case of Reckitt v. Barnett. Pembroke &Slater, Ltd.1.
With regard to the first defendant it has been held by the DistrictJudge that she is governed by the Tesawalamai and would not bepersonally liable in this case. It cannot be said that she is governedby the Tesawalamai. Although before her marriage she was subjectto the Tesawalamai, on marriage her status became the same as that ofher husband, the second defendant. Section 3 of Ordinance No. 1 of 1911(Cap. 48) Would apply. On the evidence it is clear that the general lawwould be applicable to the second defendant as he was born, brought up,educated, and still resides in Colombo. Though he is a Jaffna Tamilby race he cannot be regarded as an inhabitant of Jaffna, See Spencer v.Rajaratnam ° and Savundranayagam et al. v. Savundranayagam et at.0.Under the Married Women’s Property Ordinance (Cap: 46) the firstdefendant would be personally liable on the mortgage bond.
N. Nadarajah, K.C. (with him E. B. Wickr'erhanayake and H. A.Kottagoda), for the defendants, respondents.—It is essential to an agencyby ratification that the agent should not be acting for himself. An agentcannot avail of his position as agent in order to benefit himself ; he doesnot then act on behalf of his principal—Eastern Construction Company,Ltd. v. National Trust Company, Ltd. and Schmidt’’, Imperial Bank ofCanada v. Begley", Seneviratne v. Seneviratne'. Ratification can' begiven only in respect of an act done by an agent in excess of his authorityand not in violation of his authority. Where the transaction is culpableand involves ah element of fraud it cannotebe ratified-^In re Tiedemann &Ledermann Freres w, Dodwell & Co:, Ltd. v. John et al. (supra). Where itis not a question merely of excess of authority, full knowledge of the factsand unequivocal adoption after such . knowledge must be proved—Marsh.v. Josepli".
With regard to the first defendant, her status has to be determinedby the domicil of the second defendant at the time of their marriage,.and it would not be competent for the husband to-'change the wife’sstatus by acquiring, without her consent, a different domicil of choicesubsequently—Velupillai v. SivakamipillaiIt is submitted that atthe time of his marriage the second defendant was governed by the
» L.R.(1899) 2 Q. B. D. 66.'7 L. B. (1914) A. C. 197 at 212-3.
'* (1859) 13 Moore,« Rep. (P. C.) 132.8 (1930) 2 All E. R. 367.
'.. * (1968) 20 N.L. R. 206.‘(1931) 33 N. L. R. 204.
L. R. (1929)A. C. 176.>•L. R. (1899) 2 Q. B. D. 66 at 76.
s (1913) 16 N.L. R. 321.11L. R. (1897) 1 Gh. D. 213 at 247.
(1917) 20 N.L. R. 274.12(1910) 13 N- L- R- 7*-
KEUNEMAN J.—Somasunderam Pillai v. Charavanamuttu.
3
Tesawalamai. His status up to the attainment of majority has to bedetermined by that of his parents. It cannot be refuted that his fatherwho died when second defendant was 17 was a person to whom theTesawalamai applied. Even after his father’s death, the seconddefendant kept up his connection with Jaffna. And when he marriedat the age of 24 he selected a bride from Jaffna thus removing all doubtabout his intention and right to be governed by the Tesawalamai. Inthe circumstances the finding of the District Judge that the first defendantwould not be liable on the bond was correct.
V. Perera, K.C., in reply.—There is no evidence that the seconddefendant’s father was subject to Tesawalamai or that he had a Jaffnainhabitancy. Further, Tesawalamai is not a personal law. There isno rule of law that a minor son’s local law -should be the local lawof the father. The principle enunciated in Spencer v. Rajaratnam(supra) throws light on the point in question. The artificial rule ofdomicil cannot be applied in this case. The first defendant is notgoverned by the Tesawalamai as she married a person who was not aninhabitant of Jaffna.
Cur. adv. vult.
October 5, 1942. Keuneman J.—
The plaintiffs sued the defendants who are wife and husband in respectof a tertiary mortgage bond P 1 No. 385 dated September 14, 1930,for the principal sum of Rs. 14,000 an,d accrued interest anotherRs. 14,000. The mortgage bond was signed by the first defendantwho is the wife, and by Rajasooriya the father-in-law of the seconddefendant, on behalf of the second defendant (the husband), as attorneyunder power of attorney P 2, No. 850 dated March 6, 1928. The seconddefendant was in England at the date of Pi.'
The property mortgaged had been sold under an earlier mortgagedecree, and the plaintiffs now claim only the money due on the bondand do not ask for a hypothecary, decree.
There were a very large number of matters of defence raised in theissue, but the greater number of these proved to be untenable. At thetrial the learned District Judge found that of the sum of Rs. 14,000alleged to have been paid to the second defendant’s attorney, Rs. J8,000had been given before the date of the bond P 1 in respect of that attorney’spersonal transactions, and that the plaintiffs were aware of this. Asregards the sum of Rs. 5,491.75 paid at the date of P 1 by three chequesmade out in the name of the attorney personally, the District Judge heldthat even this amount could not be recovered, because the plaintiffs hadfailed to show that this sum was actually utilised for the benefit ofthe second defendant. The District Judge also decided against theplaintiffs an issue relating to the ratification of his attorney’s acts by thesecond defendant, after his return to Ceylon, but was not prepared tohold that the plaintiffs colluded with the attorney to defraud thedefendants. The action against the second defendant was dismissed.As regards the first defendant, the District Judge held that she was a -woman governed by the Tesawalamai, and that the property mortgagedwas thediatetam property. He further held that the first defendant
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KEUNEMAN J.—Somasunderam Pillai v. Charavanamuttu.
being a married woman was not legally empowered to deal with tediatetamproperty, or to. enter into any contract regarding such property, and that,as regards the personal covenants on the bond, the first defendant had noauthority, unless assisted by her husband, to enter into such contract.The action was, therefore, dismissed as against the first defendant also.
From this judgment the plaintiffs appeal, and many interestingquestions both of fact and of law have been raised in the appeal. On theevidence, it appears that the defendants were married in June, 1927,at Jaffna. The second defendant in his evidence stated that his father-in-law promised him a dowry of Colombo property worth Rs. 50,000.and Rs. 5,000 in cash in addition to jewellery. At the time there was atalk of the second defendant going to England for the purpose of hiseducation, and the second defendant alleged that he was to be givenRs. 300 a month for his maintenance in England. Presumably this wasto be provided by the father-in-law. Shortly after the marriage a piece ofbare land—the property mortgaged under P 1—was purchased in thename of the first and the second defendants (see document X No. 198dated. September 20, 1927). The second defendant asserts that thefather-in-law gave an undertaking that he would build two houses on thisland. In March, 1928, second defendant went to England. Thepurposes for which the power of attorney was given is explained by thesecond defendant, as follows: —
“ Before I went to England I gave a power of attorney to myfather-in-law. It is a bare land which is in my name and my wife’sname, and he was going to build on it. So he wanted a power ofattorney. I gave a power of attorney specifically for him to buildupon it. There was no raising money. He had no authority to borrowmoney. ”
Later in cross-examination second defendant added.
“There was.a bare land, and it was going to be built upon, and hesaid a power of attorney was necessary to get the building planspassed, and as the land was in my name it was necessary to get someone. to act while I was away. ”
Now it may be observed that there is no corroboration of the story ofthe promise of the dowry, nor of the subsequent promise to build twohouses on the bare land. Even if the second defendant was reluctantto call his father-in-law as a witness, in view of the allegation of fraudagainst him, it is difficult' to understand why the first defendant was notcalled into the box. There is no mention in the • correspondence whichhas been put in of these alleged promises, and no documentary proof ofthese promises has been given. It is also difficult to reconcile the oralevidence of the plaintiff with the document P 2, which conveys a specificpower to the attorney to sell and dispose of, or'to mortgage and hypothe-cate the immovable property. Further, in view of the fact that one ofthe owners of the land, viz., the first defendant, remained in Ceylon,and was in a position to sign all building applications, it is difficult tounderstand why a power of attorney was needed, from the second defend-ant “ to get the building plans passed ”.
KEUNEMAN J.—Somasunderam Pillai v. Charavanamuttu.
5
do not find that the District Judge has carefully considered the natureof the evidence given on this point, and find some difficulty myself inaccepting this evidence, which in point of fact has no corroboration,and does not appear to be in keeping with the subsequent conduct of thesecond defendant, which will be dealt with later.
The District Judge appears to have been influenced to some extentby this evidence, and makes a point of the fact that Raj asooriya was notcalled to contradict this evidence. Here I think the District Judge iswrong. The failure to call Raj asooriya, the second defendant’s attorney,tells strongly against the second defendant.
It is clear from the evidence of the second defendant himself that!'.aj asooriya, the father-in-law and attorney, had remitted to Englandabout Rs. 300 a month from March, 1928, for a period of two and a halfyears, and had also spent money on building two houses on the land inquestion. The first of these houses was completed shortly before theend of 1930, and the other was built thereafter. The exact cost of thesebuildings has not been proved ; but I think, on' the evidence, it is clear thata sum exceeding Rs. 14,000 has been expended by Rajasooriya on thesecond defendant. The allegation of the second defendant appears to bethat this expenditure was in consequence of the verbal agreementconcerning dowry and maintenance made by Rajasooriya, and thataccordingly all the borrowings of Rajasooriya were on his personalaccount, and not as attorney.
I do not think it is necessary to decide this point, for it is possibleto come to a conclusion with regard to the borrowings on the recordedevidence. Somasunderam, one of the partners of the plaintiffs’ firm,has given evidence, and stated that the sum of Rs. 8,000 had been paidto Rajasooriya prior to the signing of the mortgage bond P 1, and abalance of Rs. 5,491.75 at the execution of P 1. As regards the item ofRs. 8,000, Somasunderam said that he himself and the other partnerslent money to Rajasooriya out of the funds of the firm. The transactionswere entered in the firm’s books, which had now been destroyed in a firein 1939. These transactions were on promissory notes, and sometimeson cheques. He added that he was aware of the fact that Rajasooriyawas the attorney of the second defendant, and that he had read thepower of attorney, but did not say when he obtained that knowledge.It is I think of the utmost significance that Somasunderam, who musthave been aware of the capacity in which Rajasooriya borrowed, neversuggested that Rajasooriya obtained the amounts as attorney of the seconddefendant, or signed the promissory notes and cheques in that capacity.On the contrary the whole tenor of his evidence is in accordance with theview that these were personal borrowings by Rajasooriya. Somasun-deram himself thought the other partners of the firm would raise objec-tions to these transactions, and wanted some kind of security. I thinkhe was not careful as to the form of security he obtained, and whenRajasooriya offered this mortgage in his capacity of attorney, Soma-sunderam readily accepted it, and even paid the balance sum of Rs. 5,000odd to obtain it.
In the circumstances I think tlie learned Judge was justified in hisfinding that the sum of Rs. 8,000 represented personal borrowings by
0KEUNEMAN J.—Somasunderam Pillai v. Charavanamuttu-
Rajasooriya from the plaintiffs’ firm, and that the plaintiffs’ firm hadnotice of that fact., The plaintiffs were also aware of the fact that Raja-sooriya gave the security P 1 as attorney of the second defendant, in orderto cover that amount. I do not, however, agree with the District Judge’sfinding that it was incumbent on the plaintiffs to prove that the balancesum of Rs. 5,491.75 paid at the date of the execution of P 1 was actuallyutilized for the benefit of the second defendant.
One other issue remains to be dealt wi.th, viz., whether the seconddefendant by his conduct after his return from England in December.1930, ratified the act of Rajasooriya in executing P 1 (issue 21). Thehistory of this issue is interesting. The second defendant raised againstthe plaintiffs an issue of estoppel based on an alleged discharge bySomasunderam of the liability created by the bond P 1. The learnedJudge quite rightly held on the evidence given that the estoppel was notestablished, but in the course of his evidence the second defendant spoke'to a number of facts on which the issue of ratification was subsequentlybased.
These facts are as follows:—Rajasooriya in virtue of his power ofattorney P 2 'purported to create a primary and a secondary mortgagein favour of Mr. Johnstone. The property mortgaged was the particularpremises in respect of which the plaintiffs subsequently obtained thetertiary bond P 1. The second defendant stated that he came to knowof these transactions with Mr. Johnstone about 7 or 8 months after hisreturn to Ceylon in December, 1930, and asked Mr. Johnstone forparticulars. He also appears to have obtained a copy of the power ofattorney P 2, in order to study the wording of that power (see letter P 9dated June 24, 1931, and the earlier letter P 10 of April 24, 1931).Sometime about the end of 1934 or the beginning of 1935 Mr. Johnstonefiled action, and second defendant filed answer, but at the same timetried to raise money in order to pay Mr. Johnstone off. In this connec-tion encumbrances were searched, and second defendant says that he thendiscovered the existence of the tertiary bond in favour of the plaintiffs.In March, 1935, Somasunderam got in touch with the second defendant.In this connection, the second defendant stated,
“ I told him that till recently I was quite unaware of these transac-tions. Somasunderam said he knew, all the circumstances of thesetransactions. He went into some detail. He told me not to blameMr. Rajasooriya. It was he, he said, who induced him to give thiscover, to save his face to his partners. Somasunderam pressedMr. Rajasooriya for a mortgage. Because the partners were forcinghim, he had to induce Mr. Rajasooriya to give this mortgage.”
There is a curious failure at this point on the part of the second defendantto specify the all-important details mentioned by Somasunderam.
According to the second defendant,^Somasunderam wished him to getin touch with the primary mortgagee and to try and get easy terms ofsettlement. Second defendant did so, and later informed Somasunderamthat Mr. Johnstone was willing to take over the front house and halfthei land in full settlement of the claim on the primary and secondary’mortgages, which amounted to Rs. 11,000. Somasunderam replied that
KEUNEMAN J.—Somasunderam Pillai v. Charavanamuttu.7
the arrangement was not satisfactory, and suggested other terms. Subse-quently the second defendant and Somasunderam went to Urugala to seeMr. Johnstone, who suggested certain terms. Somasunderam made acounter offer, which was not accepted by Mr. Johnstone, who wantedthe full amount of his principal.
Second defendant further stated that on the way back Somasunderamtold him to regard the whole matter as closed, and to agree to settleMr. Johnstone’s bond by paying the whole amount of the principal;and taking over the property in full settlement of his own claim, but thatSomasunderam still hoped to get better terms from Mr. Johnstone.The learned District Judge was not prepared to hold that Somasunderamhad agreed to discharge the second defendant. The evidence discloseda very active effort on the part of the second' defendant to settle theclaims both of Mr. Johnstone and of the plaintiffs by surrendering thewhole of the mortgaged property.
Second defendant was questioned as regards his acceptance or repudia-tion of the bond PI, e.g.
“ Q. You did not dispute this bond which had been executed ?
A. That question did not arise because Somasunderam said not toblame Mr. Rajasooriya, that he induced Mr. Rajasooriya. Henever raised the question of payment.”
Later second defendant said,
“ The question as to whether I was liable on the bond did not ariseand was not discussed at all.”
and again,
“The question of my liability to Somasunderam’s partners did notarise at all. The discussion centered round settling Mr. John-stone."
Second defendant further added that he did not tell Somasunderam thathe was prepared to pay him, nor did he admit liability.
I cannot but regard these answers as unsatisfactory or evasive. It isclear that the second defendant never genuinely repudiated Mr. John-stone’s claim, but on the contrary he subsequently consented to judgment,and so accepted the action of his attorney, Rajasooriya, with respect tothe Johnstone mortgage. In the case of Mr. Johnstone also, if seconddefendant’s evidence is true, Rajasooriya had acted outside the scopeof his authority as attorney, and I think all the evidence points to thefact that the second defendant accepted liability both with respect tothe claim of Mr. Johnstone, and also of the plaintiffs, and merely triedto get the best terms he could. It is not possible to accept the view thatthe question of liability was held in suspense.
Mr. Nadarajah stressed in this connection a letter written by thesecond defendant to Somasunderam. (D 4 of the 29th of July, 1935) inwhich the following passage appears : —
“ You did this ” (i.e., agreed to a settlement) “ as you were fully awareof the circumstances that we did not benefit from these transac-tions that Mr. Rajasooriya put us into and that we were going
8KEUNEMAN J.—Somasunderam Pillai v. Charavanamuttu.
to lose even our dowry property. We were ready to agree tothis as we did not want any further bother and worry and wereready to giv.e up this property so that we may have peace.”
On this passage is based the argument that the second defendant reallyrepudiated the claim of the plaintiffs on P 1, but for the sake of peacewas willing to give up the dowry property by way of a compromise. Thisappears to be the view taken by the District Judge. But on an exami-nation of this letter, I do not think that view can be maintained. The onlytwo facts which the second defendant alleged that Somasunderam was“ fully aware of ” were (1) the fact that the defendants did not benefitfrom Rajasooriya’s transactions and (2) the fact that the defendantswere going to lose their dowry property. These are arguments whichmay well be addressed by a debtor to a creditor, to persuade the creditornot to claim his full pound of flesh. There is not the slightest suggestionthat the claim of the creditor was untenable, and the whole letter showsthat the debtor accepted the claims of his creditor, and was merelynegotiating in order to ^obtain the most favourable terms for himself.
Tn this connection I think the evidence of Somasunderam^ is to beaccepted, viz., that the second defendant never disputed his liability onthe mortgage bond P 1, and only took steps to induce his creditors toreduce the amount of their claims and for that purpose arranged ameeting between Mr. Johnstone and Somasunderam.
There is further evidence that this was the attitude of the seconddefendant. At one stage, Somasunderam says that the second defendantinformed him, that he had arranged a loan from the Church of England,and wanted the claims of the creditors to be within the amount of theloan. The second defendant also promised that when he obtained theloan, he would settle the plaintiffs’ claim. The second defendant himselfstated that in 1934 he was in negotiation with the trustees of the Churchof England, and that the trustees wanted certain things done, and thosesteps were taken, and added,
“ If I raised the money from the trustees of the Church of England, Iwas prepared to pay. I told Somasunderam I was havingnegotiations.”
In my opinion the evidence of Somasunderam is substantially true, andthrows a vivid light upon the attitude of the second defendant.
In my opinion, the second defendant not only did not repudiate theclaim of the plaintiffs but in substance accepted the claim, and actively-tried to arrange a settlement of the claim, on the footing that the claimwas good. It is significant that all the second defendant has to sayabout his relations with Rajasooriya after his return to Ceylon, is asfollows: —
“ I took the matter up with my father-in-law. 1 asked him why hehad borrowed this money. I protested. After the discussionswith my father-in-law my relations were strained from thatpoint up to now-”
There is no suggestion that second defendant taxed Rajasooriya withhaving given cover by mortgage bond P 1 for his personal transactions,
KEUNEMAN J.Somasunderam Pillai v. Charavanamuttu.
8
nor any repudiation of the right of Rajasooriya to execute the bond P 1and the Johnstone bonds. The only point the second defendant appearedto have raised was that he had received no advantage from thebonds.
The doctrine of ratification has been explained by Tindal C.J. inWilson v. Tunum1 as follows :—
“That an act done, for another, by a person, not assuming to act forhimself, but for such other person, though without any precedentauthority whatever, becomes the act of the principal, if sub-sequently ratified by him, is the known and well-establishedrule of law. In that case the principal is bound by the act,whether it be for his detriment or his advantage, and whetherit be founded on a tort or on a contract, to the same effect asby, and with all the consequences which follow from, the sameact done by his previous authority.”
This has been accepted by Lord Macnaghton in the House of Lords inKeighley, Maxsted & Co. v. Durant2 where it was held that the doctrine ofratification was not applicable where the person who made the contractdid not profess at the time of making it to be acting on behalf of aprincipal.
In the present case, it is clear that Rajasooriya, at the time he executedthe bond P 1, purported to act as the agent of the second defendant. Itwas, therefore, open to the second defendant to ratify the contractmade.
do not think the principles enunciated in John v. Dodwell & Co. Ltd.';Reckitt v. Barnett, Pembroke and Slater'; and Imperial Bank of Canadav. Begley ‘ are applicable. In these cases the question was whetherproperty which was held by an agent in a fiduciary capacity, and whichwas transferred by him in payment of his personal obligations to another,who received it with full knowledge of all the circumstances continuedto remain impressed with that fiduciary character in the hands of therecipient. Very different considerations apply to such cases. In the■present case the question relates to a contract of mortgage, entered into. by the agent, professing to act in his capacity of agent. It was open tothe principal to repudiate the contract, on the ground that the agent wasto the knowledge of the mortgagees acting outside the scope of hisauthority as agent, and for his personal benefit. But it was also open tothe principal, if he so desired, to ratify the contract of mortgage, and sogive validity to^the contract as against himself.
One further point was raised by Mr. Nadarajah, viz., that where theagent had acted fraudulently and for his own personal benefit, no questionof ratification on the part of the principal arose. It may be noted thatthe learned District Judge held that there was no fraud or collusion onthe part of the plaintiffs, and no reason was urged before us, why thatfinding should be reversed, I think the point taken by Mr. Nadarajah
1(1843) 6M.&Q. 242.4 (1929) A. G. 176.
2(1901) A. C. 246.1 2 3 (1936)2., All England Law
3(1918) A. C. 663 : 20 X. L. R. 206.Reports, p. 367.
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KEUNEMAN J.—Somasunderom' Pilloi y. Charavanamuttu.
cannot be supported. I may cite in this connection the dictum ofChannell J, in Tiedemann and Ledermann Freres
“ Next, it was said that he could not validly ratify or adopt the con-tracts because, although they purported to be made in hisname, they were not really his contracts, being made by Vilmaron his own account, though in Tiedemann’s name, with somefraudulent intent. That, however, in our view makes nodifference, because in making the contracts Vilmar assumed toact on behalf of a principal, Tiedemann. Under those circum-stances we think that the contracts could be validly ratified bythe person in whose name they, purported to be made, evenalthough they were in fact made without his actual authority,and although Vilmar had in his mind some fraudulent intent.”
The further comment of Channell J. viz. :
… “ It is not found that Tiedemann was guilty of any fraud. If there~ was such a finding, the question would be altogether different:"has no application to the facts of the present case.
One last question remains for determination, In dealing with thequestion of ratification Lord Atkinson states in Eastern Construction Co.,Ltd. v. National Trust Co., Ltd. and Schmidt’,
“Ratification must be evidenced by clear adoptive acts, which mustbe accompanied by full knowledge of all the essential facts.”
In Marsh v. Joseph3 Lord Russel of Killowen set out the matter asfollows : —
“Where the supposed ratification relates to acts as to which there is nopretence of any a priori authority, as in this case, where it is nota question merely of excess of authority, full knowledge of thefacts and unequivocal adoption after such knowledge must beproved, or, in the alternative, the circumstances of the alleged'ratification must be such as to warrant the clear inference thatthe principal was adopting the supposed agent’s acts, whateverthey were or however culpable they were.”
^ Assuming that these principles apply to this case, I think it is clear thatthe alleged acts of ratification were done after the second defendant hadfull knowledge of all the facts. Was there a clear and unequivocaladoption of those acts? I hold that the evidence I have already detailedestablishes clear and unequivocal adoption by the second defendant ofRajasooriya’s mortgages, including the mortgage to the plaintiffs anda clear assumption of responsibility by the second defendant as regardsthe amounts due on those mortgages. Not only has there been acquies-cence by the second defendant in the claims of Mr. Johnstone and theplaintiffs (vide Lapraik v. Burrows *), but also positive acts on the partOf the second defendant, which show that he had assumed the liability.
• I hold that, the District Judge was wrong in dismissing plaintiffs’action against the second defendant, and set the judgment aside andenter judgment for the plaintiffs as prayed for against the second!
defendant.
>(ISO!)) 2.Q. B. n. 70.
4 (1914) A. C. 213.
a (1S97) 1 O. H. D. 247.
* 15 E. R. 50 : 13 Moore 152.
KEUNEMAN J.—Somasunderam Pillai v. Charavanamuttu.
11
The action against the first' defendant raises entirely differentconsiderations. The first defendant was a signatory to the bond P 1, andapart from the finding of the District Judge that she was governed by theTesawalamai, and accordingly had no authority to contract, the firstdefendant would be liable on the bond P 1. The main question arguedwas that she was not a person governed by the Tesawalamai, but was aperson governed by the general law of Ceylon.
It is not in dispute that before her marriage the. first defendant was aperson subject to the Tesawalamai. But the question arose whether byvirtue of Ordinance No. 1 of 1911 (now Cap. 48), there had been a changein her status. Section 3 of Cap. 48 provides that “ whenever a woman towhom the Tesawalamai applies marries a man to whom the Tesawalamaidoes not apply, she shall not during the subsistence of the marriage besubject to the Tesawalamai.” The appellants’ Counsel argued that atthe time of the marriage the second defendant (the husband) was not aperson to whom the Tesawalamai applied.
The second defendant was born in 1903 and married in 1927, after theOrdinance of 1924 relating to Married Women’s Property (now Cap. 46).The evidence bearing on this point of the status of the second defendanthas all been supplied by the second defendant. According to him, hewas a Jaffna Tamil by race and "his father was also a Jaffna Tamil, bomwithin the province of Jaffna. The second defendant was born inColombo, where his parents have lived for many years—his father havingcome to Colombo for the purposes of his business. Since the date of hisbirth; the second defendant resided in Colombo, and was educated atSt. Thomas’ and Wesley Colleges in that city. The second defendant’sfather was in Government Service, and resided ordinarily in Colombowhere he was stationed, and for his holidays he used to go to Jaffna,where he and his wife had certain shares in ancestral property. There isno evidence that the second defendant ever visited Jaffna before the death ofhis father. Second defendant’s mother had visited Jaffna several times,since the birth of the second defendant, but last visited Jaffna in 1918, twoyears before her husband’s death. Second defendant’s father died in 1920,when second defendant was about 17 years old, and a student at WesleyCollege. Since that date second defendant has visited Jaffna occasion-ally for short periods—6 weeks or 2 months, sometimes only for a fewdays, but he has paid holiday visits to other places as well, such as Kandyand Nuwara Eliya, which are not in the Northern Province. Seconddefendant was not running'a house in Jaffna, nor did his mother, or hisbrother, but second defendant had inherited shares in a house in Jaffnafrom his father—that house was in the occupation of his father’s brother.The second defendant was married in Jaffna in 1927, and stayed there for6 weeks or 2 months on that occasion. The mother of the seconddefendant had resided in Colombo since the death of her husband, amdhad no residence elsewhere. Finally, in his re-examination, the second■defendant said:
“ I am living in Colombo myself. That is for the purpose ofpractising my profession. I am now permanently settled inColombo. ”
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KEUNEMAN J.—Somasunderam Pillai v. Charavanamuttu.
The question that arises on this evidence is whether the second defend-ant is “a 'Malabar inhabitant of the province of Jaffna". As theTesawalamai is a custom in derogation of the common law, any personwho alleges that it is applicable to him must affirmatively establish thefact, Spencer v. Rajaratnam {supra). In this case the second defendant hasestablished that he is by descent a Jaffna Tamil, but that in itself isinsufficient. He must further prove he was at the crucial date aninhabitant of Jaffna. I agree that the material date for the purposes ofthis case is the ‘date of his marriage, viz., the year 1927. It was con-tended on his behalf that his father was an inhabitant of Jaffna, and thathe had not, by virtue of his residence in Colombo for the purposes ofbusiness, lost his Jaffna inhabitancy. It was further contended thatwhen the second defendant was bom, he must be regarded, by virtue ofhis father’s inhabitancy of Jaffna, as having a Jaffna inhabitancy also.It was argued that principles akin to those of domicil of origin must beattributed to him. But I think the argument based on the analogousdoctrine of domicil cannot be carried to this extent. The fact that hisfather was an inhabitant of Jaffna may well be a fact that has to beconsidered, but I think it is not correct to apply any artificial rules insuch a case drawn from the law relating to domicil. Each case mustdepend on its own facts, and on the amount of evidence led to prove theinhabitancy. This appears to be the rule laid down in Spencer v. Raja-ratnam (supra).
The facts in this case relating to the second defendant are as follows: —He was born in Colombo, and lived in Colombo up to his father’s death,and since then also, except for occasional visits to Jaffna, either for hisholidays or on business. There can be. no question that he is now apermanent resident of Colombo, and in point of fact, even in 1927, hecould not be said to have any residence elsewhere than in Colombo.Up to that date, apart from the application of any rule of law, he couldin no sense be regarded as having his permanent home in Jaffna. Asagainst this, we must set the fact that his father had a permanent homein Jaffna, and cannot be regarded as having abandoned Jaffna as hispermanent home. There is also the fact that the second defendantmarried in Jaffna, but in spite of his marriage there is no evidence of anyintention to settle there. In fact he returned to Colombo in about twomonths, and has resided in Colombo, except during the period when hewas away in England for the purpose of his studies. He owns someshares in Jaffna property, derived from his father, but there is nothingto show that he obtains any income from that property. I think thisevidence is insufficient to . displace the presumption that he is governedby the ordinary law of the land, or to impose upon him a set of customsapplicable only to the inhabitants of the Jaffna province.
I think the learned Judge erred in holding that the second defer rl.~.r.fwas an inhabitant of Jaffna. The status of the second defendant wii-determine that of his wife, the first defendant. I hold that th-.- f.defendant was not governed by the law of Tesawalamai, and that underthe ordinary law, she was competent to enter into the contract ofmortgage, and into the personal covenants in the bond. I set aside the
The King v. Ponnusamy Sivapathasunderam.
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order dismissing the action against the first defendant, and enterjudgment against her also as prayed for.
The plaintiffs succeed against both defendants, and are entitled tocosts against them, both in appeal and in the Court below.
Jayettleke J.—I agree.
Appeal allowed.