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June 29 andJuly 3.
from the Minutes of the Council that adopted it, was a Code of“ special laws concerning Maurs or Mohammedans ” to be observedby the “ Moors in the Province of Colombo.” A strict reading ofsection 10 of Ordinance No. 5 of 1852 would appear to show thatthe words “ other parts of this Colony ” therein used refer toparts other than the “ Province of Colombo ” and the “ KandyanProvinces ” mentioned earlier in the same section. So that, asregards what used to be called the “ Province of Colombo,” the lawremained the same as before, namely, that the Code applied onlyto Moors. Any way, even if the Code applied to the seconddefendant as a Malay woman, the law applicable to her as tomatters not provided for by the Code is the Roman-Dutch. Nodoubt the Charter of 1801 conserved to all Mussalman natives ofthis Island the laws and usages by which they had theretoforebeen governed, but, although it was held in 59,578, D. C., Colombo(Grenier 1873-74, p. 28), that that provision of the Charter wasstill in force, the Privy Council, in the recent case of Le Mesurierv. Le Mesurier (I N. L. R. 160) decided that the Charter of 1801must be taken to have been wholly- repealed by the Charter of 1833.So that, for laws peculiar to the Mohammedans of Ceylon we haveto look to the Code of 1806 and that alone. Where the Code issilent, the common law of the land—the Roman-Dutch—applies.Now, the subject of the rights and disabilities of married womenis not dealt with in the Mohammedan Code of 1806, and thereforea question such as that involved in the present case must be takento be governed by the Roman-Dutch Law, and under that law amarried woman had no right to alienate immovable property.
Then, deed No. 574 has been irregularly received in evidence.The second defendant was an illiterate person, and under section160 of the Civil Procedure Code it was necessary not only toshow that she put her mark to the deed, but that she understoodits contents; but there is no evidence in the case that thecontents of this deed were explained to her. [Bonser, C.J.—Was not that to be presumed when the plaintiff proved that thedeed was duly executed by the second defendant?] Yes, but, inspite of that presumption, section 160 directs, as a matter ofprocedure, that a document purporting to have been executed byan illiterate person is not to be admitted in evidence unless it isaffirmatively shown that the person understood its contents.
Sampayo, for plaintiff, respondent.—In Meera Cando v.Sarocwa Vmma (2 Lorenz’s Rep., p. 108), it was held after fulldiscussion that a Moorish woman might dispose of her own pro-perty without the intervention of her husband. [Bonser, C.J.—In that case the Court has given no reasons for its judgment.] No,
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but the report shows that the point involved was exhaustivelyargued by counsel. The judgment has been acted upon hitherto,and it is now too late to depart from it. [Bonser, C.J.—But,what do you say to the contention as to the applicability of theRoman-Dutch Law?] The Mohammedan Law applies, meaningthereby not only the Code of 1806, but the customs and usages ofthe Mohammedans of the Island. [Bonser, C.J.—The reply tothe contention appears to me to be that a Mohammedan marriageis not the same as a marriage under the Roman-Dutch Law.]No, it is not. The same consequences do not flow from the two.Marriage, as understood by the Roman-Dutch Law, is the union ofone man and one woman for their joint lives. That cannot besaid of a Mohammedan marriage, and in the eye of the Roman-Dutch Law it is no marriage, and a Mohammedan wife is in thesame position as a femme sole.
As to the other point, the Supreme Court has held in caseNo. 1,360, D. C., Jaffna, that where a deed appears on the face ofit to have been regularly executed, it is to be presumed that theformalities required by law have been complied with.
June 89 andJuly 3.
Bonser, C.J.—
This appeal depends on the question whether a deed which wasexecuted nearly nineteen years ago was executed by the seconddefendant:She has denied her signature; and that question
was the issue between the parties. The notary was called whoattested the deed; the notary’s clerk was called who wrote outthe body of the deed; and one of the attesting witnesses wascalled to prove the execution of the deed by the second defendantby her affixing her mark to it. The deed is on the face of itregular; and my remarks in D. C., Jaffna, 1,360, which wereassented to by my brother Withers, will apply to this case.Where a deed is, on the face of it, regular, it will be presumed,that all the formalities required by law were complied with. Atthe trial an objection was taken to the admission of this deed onthe ground that section 159 of the Civil Procedure Code had notbeen complied with. That objection was overruled by theDistrict Judge, who held that that section had no applicationwhere the mark was made on the deed by the party himself.This objection is again pressed on us in the petition of appeal,but Mr. Walter Pereira candidly admitted that * he could notsupport it. With his usual ingenuity, however, he sought toshew that there was another objection to this deed, which wouldbe fatal; and that was that the provisions of section 160 of the
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June 29 anti
July 3.
Bowser, C.J.
Code had not been satisfied. That section directs the DistrictJudge what he is to require by way of proof in a case where a deedis executed by a marksman. It provides that in such a case itmust be proved that the person at the time when he put his markto the document understood the contents of it. That is merelydirectory, and it would be quite competent for the parties towaive that objection. In this case the party said I never put mymark to the deed at all. What sense would there be in provingthat she understood what she was doing when she put her.mark; but, apart from that, the observations I made in the Jaffnacase apply to this case.
Then, a further objection was raised as to the legal effect of theexecution of this deed by the second defendant. It appears thatat the time the deed was executed she was a married woman, andher husband did not concur in the deed. It was argued in theCourt below and here, that the non-concurrence of the husbandrendered the deed invalid to pass the property in this land. Butwe called Mr. Pereira’s attention, when he opened that argument,to the fact that that was not one of the issues stated betweenthe parties. The only issue that was stated and tried waswhether this woman executed this deed or not. No questionwras raised as to the legal effect of the execution. It was appa-rently assumed that, being a Mohammedan woman, her husband’sconsent was not necessary. At the conclusion of the case counselraised this point, and the District Judge had dealt with it inbis judgment. It seems to me that it was not competent forparties to raise that question. At the same time, as the DistrictJudge dealt with the matter in his judgment, I wish to say afew words on it. Section 10 of Ordinance No. 5 of 1852 extendsthe Code of the Mohammedan l aws, drawn up in August, 1806,for the use of the Moors in the Western Province to all Moham-medans in the Island. That Code apparently does not dealwith the powers of Mohammedan married women over theirown property. It was urged that where the Code was silent thelaw of the Island must prevail. I quite agree with that; but Iam not satisfied that the Roman-Dutch Law does limit the powersof Mohammedan married women to deal with their property.The Roman-Dutch Law says that certain consequences followfrom marriage; amongst other things, the property of the wife isduring the coverture to be under the sole control of the husband.
Now, it seems to me that the principle laid down by PresidentHannan in Brinkley v. Attorney-General (15 P. D. 79) applies.
He says: “ The principle which has been laid down by those“ cases is that a marriage which is not that of one man and one
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“ woman, to the exclusion of all others, though it may pass by the“ name of a marriage, is not the status which the English Law“ contemplates when dealing with the subject of marriage.”Substitute for the word ” English ” the words “ Roman-Dutch,”and that principle applies to this case. It is sought to impose oni Mohammedan woman a disability as regards dealing with herown property, because she is a married woman; but the marriageshe has contracted is not such a marriage as was contemplated bythe persons who laid down the rule that a married woman cannotdispose of her own property. No doubt the connection is calledin both cases a marriage, but the things are not the same. AsLord Penzance said, in the case of Hyde v. Hyde (L. R., 1 P. & M.130),—“ I conceive that marriage, as understood in Christendom,“ may be defined as the voluntary union for life of one man and“ one woman, to the exclusion of all others.” Although a marriagecontracted by Mohammedans is called by the same name as a mono-gamous marriage, yet it is in substance quite a different thing.
It seems to me that, applying that principle, we should be wrongif we held that all the incidents of monogamous marriagesnecessarily attended polygamous marriages.
In my opinion the appeal should t>e dismissed.
1 should like to add, with regard to the question of requiringthe concurrence of a Mohammedan husband to his wife’s convey-ances, that the uniform practice appears to have been not torequire it. We should need very strong proof that that practicewas wrong before we made any order disturbing that practice andthus shaking numerous titles.
Moncrejff, J.—
I agree with the conclusion to which the Chief Justice hascome with regard to section 160 of the Civil Procedure Code.
I think that, where the execution of the deed is recent, it maynot be unreasonable to expect that some person would testify tothe fact that the illiterate person, whose mark is in question,understood what he was doing; but where the length of timewhich had elapsed is such that it would be not reasonable toexpect that the memory of the persons present would be sufficientto supply the proof in question, I think proof should be presumedfrom the circumstances of the case, viz., the fact that the partysigned in the presence of other persons; that she was a person ofintelligence; and that it ivas probable from the nature of the-transaction and many other such circumstances that she knewwhat she was doing.
June 29 and
July 3.
Bonser, C.J.