035-SLLR-SLLR-1983-2-WIJESEKERA-v.-SENEVIRATNE.pdf
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Sri Lanka Law Reports
1198312 Sri L. R.
WIJESEKERA
v.SENEVIRATNE
COURT OF APPEAL
L. H. DE ALWIS. J. AND H. A. G. DE SILVA, J.
A. 250/72 (F)
C. KALUTARA 1807/LJANUARY 25, 1983.
Matrimonial Rights and Inheritance — Limitation of a married woman's power ofdisposal of immovable property before Married Women's Property Ordinance,No. 18 of 1923 came into force — Written consent of husband.
Held —
Section 8 of the Matrimonial Rights and Inheritance Ordinance restricts amarried woman from disposing of any immovable property by a deed inter vivosexcept With the written consent of her husband. This section was repealed by theMarried Women's Property Ordinance, No. 18 of 1923 which came into forceon 01.7.1924. But the.limitation of a married woman to dispose of suchproperty still continued in cases where the woman was married before theMarried Women's Property Ordinance came into force on 1 st July 1924 and theproperty had been acquired by her prior to that date.
Where the plaintiff woman married on 11.2.1924 before the MarriedWomen's Property Ordinance came into force and the property was acquired byher on Deed No. 269 of 20.1.1924 shortly before her marriage (also prior to theMarried Women's Property Ordinance came into force) the written consent ofher husband was necessary. But such consent was there because he had writtento the defendant in 1967 that he told his wife " to do whatever she pleases withthese lands ". Hence the action of the wife to have a deed executed by her in1967 in favour of the defendants on the ground that she was a woman who wasmarried and had acquired the property before the Married Women's PropertyOrdinance came into operation on 1.7.1924 cannot succeed. The writtenconsent need not appear on the face of the deed nor need it to be notariallyexecuted.
Cases referred to
Perera v. Perera 49 NLR 255
Fradd v. Fernando 36 NLR 201
Ponnamalv. Pattayo 13 NLR 201
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Wijesekera v. Seneviratne (L. H. De Alwis, J.)
425
APPEAL from judgment of the District Judge of Kalutara
H. W. Jayewardene. Q.C. with V, C. B. Ratnayake. Lakshman Perera and C. R. deAlwis for appellant.
Daya Guruge for respondent.
Cur. adv. vull
18 March 1983L. H. DE ALWIS, J.
The only question that arises for determination in this appeal iswhether the letter dated 21.4.67 (D2) constitutes a writtenconsent given by the plaintiff's husband to her, within themeaning of section 8 of the Matrimonial Rights and InheritanceOrdinance (Cap. 57, RLE), to transfer the land in suit to thedefendant on deed No, 3010 of 6.9.67 (D1).
Section 8 of the Matrimonial Rights and Inheritance Ordinancerestricts a married woman from disposing of any immovableproperty by a deed inter vivos, except with the written consent ofher husband. This section along with certain others wererepealed by the Married Women's Property Ordinance No. 18 of1923 (Cap. 56). But the limitation of the power of a marriedwoman to dispose of such property still continued in caseswhere the woman was married before the Married Women'sProperty Ordinance came into force on the 1st of July 1924. andthe property had been acquired by her prior to that date.
It was held in Perera v. Perera (1). that a woman marriedbefore July 1, 1924. cannot dispose of immovable propertyacquired before that date without the written consent of thehusband.
In the present case, the plaintiff was married on 11.2.1924.according to the marriage certificate (P2), that is, before theMarried Women's Property Ordinance came into operation. Theland in suit is the first one of several lands gifted to her and herintended husband, in consideration of their marriage, by deedNo. 269 of 20.1.1 924 (P1) which was also prior to the MarriedWomen's Property Ordinance.
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The Plaintiff by deed No. 3010 dated 6.9.67 (D1) transferred ahalf share of the land referred to in deed P2 to G. A. Wijesekera,the defendant. Thereafter she instituted the present action on16.10.1970 and by her amended plaint of 3.2.74 sought to havethe deed (D1) set aside as void, on the ground, inter alia, that shewas a woman who was married and had acquired the property,before the Married Women's Property Ordinance came intooperation on 1.7.1 924 and that her husband had not consentedto the execution of the deed. The defendant's case was that theplaintiff's husband had consented to the transfer of the land tohim.
The plaintiff did not give evidence but called her husband whowas shown in cross-examination, letter D2 dated 21.4.67 writtenby him. wherein he has stated that he told his wife " to dowhatever she pleases with these lands ", that is, the landsreferred to in the deed of 1924 (P1). He admitted in evidencethat he wrote this letter in reply to the defendant's request to'purchase the land in suit from his wife, the plaintiff.
The learned District Judge has taken the view that although theplaintiff’s, husband has stated that his wife could do whatever shepleased with the lands referred to in the deed of 1924. there wasnothing to show that the plaintiff's husband consented to thesale of the land in suit and that the deed D1 does not show on itsface that he had consented to the sale of the property referred toin the deed. He accordingly held that the deed D2 was void forlack of the plaintiff's husband’s consent, and entered judgmentfor the plaintiff.
In my view the conclusion reached by the learned Judge on theconstruction of the letter D2 is clearly wrong. He admits that inD2 the plaintiff's husband has stated that his wife could dowhatever she pleased with the lands referred to in the deed of1924. The land in suit is one of the lands referred to in the deedof 1924 and the consent given by plaintiff's husband to his wifeto do whatever she pleased with the lands in that deed applies tothe land in suit also. That letter constituted a written consent to
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Wijesekera v. Seneviratne (L. H. De Alwis. J.)
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his wife to dispose of or deal with any of the lands referred to inthe deed of 1924 (P1). The letter D2 was written on 21.4.67 alittle over 4 months before the deed D1 was executed on 6.9.67.Apart from the reasonable inference that the written consent inD2 was given in respect of the land in D1. the plaintiff's husbandunder cross-examination, admitted that he gave his consent tothe sale of the land in suit.
The letter D2, it is true, is addressed by the plaintiff's husbandto the defendant, but he has stated in writing that he had givenhis consent to his wife to do as she pleased with the land, in thatletter he informs the defendant that he has forwarded his letterinquiring about the land to his wife who lived at the time atKirillapone. He gave the defendant permission to meet his wife todiscuss the matter and furnished him with directions to locateher residence in Colombo. It is really a letter of introduction tothe defendant and conveys his written consent to his wife to sellany of the lands acquired by her on the deed of 1924 (P1). Thedefendant must naturally have shown the letter of introduction tothe plaintiff before he commenced negotiations regarding thepurchase of the land in suit.
Learned Counsel for the plaintiff-respondent submitted thatthe written consent of the plaintiff's husband should be recited inthe deed itself. But there is no such requirement in law. In Fraddv. Fernando (2) Dalton J.. observed that it is not necessary thatthe consent should appear on the face of the document makingthe disposition or that it should be given by a writing notariallyexecuted.
Learned Counsel for the respondent also submitted that theconsent must be such as will leave no need or room for oralevidence or conflicting inferences, as to its meaning. He wasrelying on the dissenting judgment of Wood Renton, J. inPonnamal v. Pattayo {3). In the present case the letter D2contains a clear expression in writing of the plaintiff's husband'sconsent to his wife to dispose of or deal with any of the lands
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gifted to her in the 1924 deed (PI) and that deed includes theland in dispute. The deed D1. conveying the land in suit to thedefendant, has therefore been executed with the knowledge andwritten consent of the plaintiff's husband and is valid.
I accordingly set aside the judgment of the learned DistrictJudge and dismiss the plaintiff's action vyith costs. The appeal isallowed with costs.
H. A. G. DE SILVA, J. – I agree.
Appeal allowed.