IBRAHIM v. ANNAMMA

030-SLLR-SLLR-1982-2-IBRAHIM-v.-ANNAMMA.pdf


CA
Ibrahim > Amiamma
633
IBRAHIM
v.
ANNAMMA
.COURT OF APPEAL
CADER. J.. RODRIGO. J.. and L.H. DE Al.WIS. J.
A. 419/75.
C. MANNAR 542.
JUNK 28, 1982.
Tesawalamai – Applicability of Tesawalamai – Roman T>utch Law applies whenTesawalamai silent – Married woman's incapacity to sue without husband's assistance- Bills of Exchange Ordinance, section 29 and 20 – When consideration is not necessary.
The defendant gave a promissory note to one K.A. Mohamadu and Mohamaduendorsed it and delivered the note to plaintiff.'The plaintiff is a married womanliving with another man while the husband, was alive and living separately.
The plaintiff sued the defendant on the promissory note for the recovery of Rs.21,000/- and interest thereon. The defendant objected stating that the plaintiffwas married to a Tamil and was resident in the Northern Province and thereforehad to sue along with the husband as required under the law of Tesawalamai.
The defendant also contended that as no consideration passed between Mohamaduand the plaintiff, the plaintiff was not entitled to sue.
Held –
1-. That where the Tesawalamai is silent the Roman Dutch l.aw applies. ■
That the plaintiff could not sue or maintain this action without being assisted• by her husband or without leave of Court.
Thar as the defendant admitted that consideration passed between maker and
payee it was immaterial whether consideration passed between payee anrf 'theplaintiff.
Cases referred to:
"-■ t –
(I) Kandiah r. Saraswathv (1951) 5-t X.L.R. I.W-
634
Sri Ijinka Law Reports
<I9#2) 2 S.L.R.
Spencer v. Rajaratnam (1913) 16 N.L.R. 321
Tharmatingam Cheiiy v. Arunasalam Chettiar (1944) 45 N.L.R. 414
Marisal i'. Savari I. S.C.C. 9
Edrich de Silva »>. Chandradasa de Silva (1967) 70 N.L.R. 169
Sinnapodian v. Sinnapulle, Muthukrishna, The Tesawatami 263
Piragasam Mariamma (1952) 55 N.L.R. IJ4
Annapillai v. Eswaralingam (I960) 62 N.L.R. 224
Sabapathipillai v. Sinnatambi (194#) 50 N.L.R. 367
Barnes v. Harward (1944) C.P.D. 203
APPEAL from judgment of the District Judge of MannarS. Mahenthirari for appellant.
No appearance for respondent:
'.‘Cur.adv.vutt
September 23, 1982
L.H. DE ALWIS, J.
This appeal has been referred to a Bench of three Judges underArticle 140(3) of the Constitution, in view of a difference of opinionbetween my brothers, Cader, J., and Rodrigo, J., over the questionof whether a married woman governed by • the Tesawalamai couldbring thjs action without joining her husband with her, As a plaintiff.
The respondent woman sued the appellant in the District .Courtof Mannar, for the recovery of a sum of Rs. 21,000/- and ..intereston a promissory note ‘A’ made by the latter in favour of one K.A. Mohamed who has endorsed the note to the respondent. Therespondent is a Tamil lady residing in the Mannar District and oneof the arguments urged before us by learned Counsel for the appellantwas that the respondent as a legally married woman subject to theTesawalamai is debarred from instituting this action without joiningher husband as a plaintiff to the action. I shall confine my judgmentto this matter alone, as my brothers could not agree in regard toit. The other question as to whether consideration passed on thepromissory note both at the time if was made and ■ when it wasendorsed to the respondent, has been dealt with in the judgment ofmy brother Cader, J and I agree with him.
CAIbrahim v. Amuimma (/../i JrJ.i635
In regard to the legal capacity of the respondent to sue unassistedby her husband, the learned District Judge, has held, that theappellant has failed to establish that the marriage certificate D'lproduced by the appellant related to the respondent to prove thatshe was a married woman subject to the Tesawalamai. and enteredjudgment for the respondent as prayed for.
The respondent did not give evidence at the trial and since it isthe appellant who raised the objection to the respondent’s capacityto institute the action without joining her husband with her as aplaintiff, the burden clearly lay on him to establish this fact.
In Kandiah■ Vs. Saraswathy (1). Dias, S.P.J., said
“There is no presumption of law by which a Court can say,without proof, that the Tesawalamai applies to a particular Tamilwho happens to reside in the Jaffna Peninsula. In the absenceof such a presumption the burden of proof is on the party whocontended that a special law has displaced the general Law ina given case to prove the applicability of such a special Law. ”
In Spencer Vs. Rajaratnam, (2), it was held that the Tesawalamaiis not a personal law attaching itself by reason of descent and religionto the whole Tamil population of Ceylon, but an exceptional customin force in the Province of Jaffna – now the Northern Province -and in force there, primarily, and mainly at any rate, among Tamilswho can be said to be “inhabitants" of that Province. As theTesawalamai is a custom in derogation of the common law, anyperson who alleges that it is applicable to him must affirmativelyestablish the fact. The mere fact that a man is a Jaffna Tamil bybirth or descent while it is circumstance of which account must betaken in considering his real position, will not bring him within thescope of the statutory definition of the class of persons to Whom theTesawalamai applies.
The Tesawalamai Regulation No. 18 of 1806 states that theTesawalamai applies to Malabar inhabitants of the province of Jaffna.The word ‘Malabar’ is not defined but it has been held * to besynonymous with the Tamils of Ceylon who are inhabitants of theNorthern Province. Tharmalingam Chetty Vs. Arunasalam Chettiyar,
. See also Dr. Tamtnah: Law and Customs of the Tamils of Jaffna- page 51.
In Spencer Vs. Rajaratnam (2) Ennis, J., observed –
“The Tesawalamai are not the customs of a race or religioncommon to all persons of that race or religion in the Island:
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(1982) 2 S.L.R.
they are the customs of a locality and apply only to Tamils ofCeylon who are inhabitants of a particular province”.
In Tharmalingam Chetty Vs. Arunasalam Chettiar (3) Soertsz, J.,approved of the observations of Ennis, J., in Spencer Vs. Rajarat-nam (2) and said –
“The Tesawalamai applies to Tamils with a Ceylon domicileand a Jaffna inhabitancy.”
In Marisal Vs. Savari, (4) it was held by the Supreme Court thatthe Mannar District is a portion of the Northern Province and thatthe Tesawalamai applied to the Tamils of that district.
The appellant in seeking to discharge the burden that lay on himgave evidence that the respondent was a married woman whosehusband was alive and produced her marriage certificate marked Dl.According to Dl, the respondent’s name appears as Marisal Annammahand her husband’s name, as Santiagu Moththan Anthony; The appellantdid not know the husband’s real name but gave his nickname as‘Singham’. As far as the respondent was concerned, the appellantknew her as Marisal Annammah and,said that the marriage certificaterefers to her. The marriage certificate describes both the respondentand her husband as ‘Ceylon Tamils’ and as residents of Neruvilikkulamand Muthalaikutty respectively, which are in 'the Mannar District andaccording to the appellant, establish that they are inhabitants of theNorthern Province. The respondent has not denied that the marriagecertificate ‘Dl’ refers to .her and the appellant’s evidence standsuncontradicted.
In Edrick de Silva Vs. Chandradasa de Silva, (5) H.N.G. Fernando,C.J., said:
“But where the plaintiff has in a civil case led evidencesufficient in law to prove a factum probandum, the failure ofthe defendant to adduce evidence which contradicts it adds anew factor in favour of the plaintiff. There is then an additionalmatter before the Court, which the definition in section 3 ofthe Evidence Ordinance requires the Cpurt to take into acount,namely that the evidence led by the plaintiff is uncontradicted. ”
The respondent and her husband, according to Dl, were thereforeTamils having a Ceylon domicile and an inhabitancy in the NorthernProvince at the time of their marriage. The question now is whetherthe position was the Same at the time of the institution of the action.
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Ibrahim r. Annanvna II..H. ./«• Alwi. J l
637
In Spencer Vs. Rajaratriam (2) Ennis, J.. observed that:
“In questions relating to domicile there is a presumption of lawthat the domicile is retained until a change is proved, but itseems to me that when the question is one of inhabitancy thepresumption is not in favour of the original inhabitancy, but ofthe actual residence at a particular time…."
In the present case the respondent and her husband were at thetime of their marriage in 1939, inhabitants of the Northern*Province,and at the time the action was filed in 1973, the respondent wasstill living in that Province. In the caption to the plaint* and inparagraph (1) of the plaint her residence is. described as being withinthe jurisdiction of the District Court of Mannar. For over 34 yearstherefore, the respondent has been residing in the Northern Provinceand in the absence of ahy evidence to the contrary, it is reasonableto presume that her permanent residence continued in that provinceright up to the time of the action. She is now living with .a Muslimman in the same province. Her husband, according to the appellant,is alive and there is no evidence that her marriage has been dissolvedor that the respondent’s husband has deserted her and changed hispermanent residence to a place outside the limits of the NorthernProvince. Those are matters which are within the special knowledgeof the respondent, and the burden of proving them lay on her undersection 106 of the Evidence Ordinance, if she wished to establishher right to sue alone. This burden she has not discharged. As apermanent inhabitant of the Northern Province the respondent isthus subject to the Tesawalamai. The learned District Judge haserred in holding that there is no evidence that D1 applied to therespondent and that there is no proof that she is a married woman. subject to the law of Tesawalamai. This finding of the learned Judgemust be set aside.
The question that now arises for consideration, is whether a marriedwoman subject to the Tesawalamai can sue alone without joiningher husband with her as a plaintiff.
Under Roman-Dutch Law, a woman though she may have beenof full age before marriage, on marriage she is deemed to be aminor under the guardiahship of her husband. Like a minor she has^in general, no independent personal standi in judicio. She cannotinstitute or defend an action in her own name. Whether as a.plaintiffor defendant she must proceed by or with the assistance of herhusband – Lee: – An Introduction to Roman-Dutch Law, 5th Ed.
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(1982) 2 S L R
page 63. In Appendix D to his work – Professor Lee at page 421cites Kotz6J., in Van EedenVs. Kirstein (1800) in the following terms:,
“The general rule of our law is that a married woman, beinga minor, has no persona standi in judicio, and must in lawproceed by, or with the assistance of her husband. To this ruleonly three exceptions are ad.mitted, viz. 1st, in the case of a .married woman carrying on a public trade in regard to alltransactions connected with such trade; 2nd, where a womanmarried by ante nuptial contract has reserved to herself the free•administration of her separate property: and 3rd, in a suit bythe wife against the husband… I have been unable' to find asingle Roman-Dutch authority giving a married woman the rightto appear in a civil suit unassisted by her husband, in any butthe three exceptions above enumerated”.
. Van Leeuwen Commentaries on Roman-Dutch Law,'2nd Edition,
. Voj. 1 Book 1, Chapter VI, Section 7 has this passage:
“But with regard to married women, it is almost everywhereconsidered that they are entirely under the guardianship andprotection of their husbands… .Moreover it is laid down thatmarried women cannot appear in law without their husbands,and that judgments given against them have no force whatever.”
In our country, before the. passing of the Matrimonial Rights andInheritance Ordinance No. 15 of 1876 (Cap. 57) and the MarriedWoman’s Property Ordinance No. 18 of 1923 (Cap. 56),'the'contractualrights of spouses in this respect were governed by the Roman-DutchLaw – Dr. Tambiah ibid page 125. These two enactments, however,had no application to Kandyans, Muslims or Tamils of the NbrthemProvince who were subject to the Tesawalamai.
Under section 5(1) of, the. Married Women’s Property Ordinance,a married woman was capable of holding movable and immovableproperty, as if she' were a ‘feme sole’ and under section 5(2), ofsuing and'being sued in all respects as if she Were'& ‘feme sole’.(Lee, ibid page 65, note'2). But these Ordinances did not apply tomarried women who were subject to the Tesawalamai and theycontinued to be governed by the Roman-Dutch Law on these matters,subject to the statutory modifications brought about by the JafinaMatrimonial Rights and Inheritance Ordinance. 1 of 1911, as amendedby No. 58 of .1947 (Cap. 58). The Jaffna Matrimonial Rights andInheritance Ordinance contains no provision in. regard .to the statusof a married woman to sue or be sued in a Court of Law. Dr.Tambiah in his book referred to earlier, says at page 130:..
639
…■ .-.f< ,
CAIbrahim i. Anndmma(/< Ahr-. J i
■, ,. . •» •»* «1 i
^ 2 1
“It is, not clear from the decisions' of our Courts whether thelaw of Tesawalamai contained any special rule on this subject.An analysis of some decisions shows that on the ground ofexpediency our Courts have adopted certain rules. In a casusomissus it was natural to resort to:thc Roman-Dutch Law onthe subject”.
He refers to the District Court of Jaffna case of Sitmapodian vs.Sinapulle, (6), where it was held that the wife cannot be sued alonewithout her husband being joined. But Dr. Tambiah says – "It isnot clear whether our.,«•>••) c
“Judges were adopting the Roman-Dutch' Law or following anypeculiar customary rule in this matter.” ' ■’'''
He then goes on to say “whatever system of law has been adoptedit is settled that a wife governed' by the Tesawalamai must beassociated by the husband, if they are living together".
•…-rj- • i•' '*•’
In Piragasam Vs Mariamma, (7) Swan, J,. took the view that^amarried woman govertied by the Tesawalamai must either be assistedby her husband or obtain the sanction of Court to sue alone. Butthat was a case where vt was conceded by Counsel that a marriedwoman governed by the-Tesawalaniai cannot sue alone.
In1 ^A'nrid^'ilWi'Vs Eswaralingam^8). a husband to whom theTesawalamai Applied "purported to, donate not only his own. sharebut als'o' his wife’s half share of the tediatetam before the date ofthe operation of the Jaffna Matrimonial Rights and Inheritance(Amendment) Ordinance, No. 58 of 1947. Subsequently, in October1955, the donee sold the property to t'hti 3rd defendant. It was heldthat the donation was invalid as to the' wife’s share; that the wife,by reason of the donation, became co-owner with the donee; thatthe wife’s legal relationship to the donee was such as to confer onher the right of pre-emption of the share held by the donee^andthat the wife was entitled, in her own right, to maintain an actjqnfor pre-emption during the subsistence of her marriage with herhusband. In such a case, the husband, if he chose to remain inactive,may be joined as a defendant. H.N. G. Fernando, J. as he then was, said-
. “It being clear law that a husband cannot validly donate•>'<* the wife’s half-share of the tediatetam, it would beunreasonable to suppose that a wife, although a co-ownerwith a person to whom the husband purports to transferthe entirety of the property, is powerless to assert her
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(1982) 2 S I R.
right either by way of vindication or pre-emption, if thehusband chooses to remain inactive. In the absence ofany authority to the contrary or any express provisionsin. tiiC Tesawalamaj debarring a wife from suing alone insuch a case, I consider it only reasonable to apply in thissituation the well known practice that a party who shouldjoin as a plaintiff, but refuses to do so, may instead bejoined as a defendant. In this way resort may, I think,be had to the principle ‘ubi jus ibi remedium’.
In that case the husband had been joined as a defendant and theaction was held to be properly consitituted. In my respectful viewthere was no need, to resort to the principle 'ubi jus ibi remedium’,since the husband by his wrongful act of donating his wife’s halfshare of the tediatetam made himself liable to be sued by his wifeunder the third exception to the Roman-Dutch Law rule that amarried woman cannot sue alone in law. Where there is a casusomissus in the Tesawalamai, recourse must be had to the Roman-DutchLaw.
In Sabapathipillai vs. Sinnatambi (9), the Privy Council held thatwhere the Tesawalamai is silent, the Roman-Dutch Law is applicable.Mr. L. M. D. de Silva, P.C. in that case said:
“The Tesawalamai is a body of customary law obtaining amongthe inhabitants of the Northern Province of Ceylon. Its originhas been the subject of some controversy. It was collected andput into writing at the instance of the Dutch Governor Simmonsin 1706 and after the British occupation, given the force of lawby Regulation 18 of 1906 which as amended by Ordinance No.5 of 1869 is now chapter 51 of the Legislative Enactments ofCeylon, (now Cap. 63 RLE)”
The Tesawalamai and the Jaffna Matrimonial Rights and InheritanceOrdinance made no provision for a married woman to sue or besued in a Court of law, so that according to the Privy Councildecision, recourse must be had to the Roman-Dutch Law. Dr.Tambiah in his book, the Laws and Customs of the Tamils of Jaffna,at page. 131, expresses the opinion that since the Tesawalamai doesnot contain any precise provisions in regard to the married woman’s. capacity to litigate, one should apply the Roman-Dutch Law to thematter.
There is a case reported by Marshall at page 160, where the partieswere Malabar inhabitants and the action was brought by the wife,
CA
Ibrahim v. Annamma II..H. tic AMs. J.)
641
to recover the sum of £30, being the profits of certain propertywhich had been settled on the wife by her parents, at her marriageHaving obtained judgment, she afterwards moved for execution againsthis person, on which motion the doubt expressed by the DistrictJudge arose. The Supreme Court took the view that –
“as the law admits of absolute and distinct separation, of interestand property between husband and wife, the law must alscprovide an adequate remedy for either party whose right mightbe infringed by the other".•
In my respectful view.,..the action filed by the wife against hethusband was maintainable under Roman-Dutch Law, on the basis oithe 3rd exception to the general rule, rather than on the groundthat she was possessed of separate property.. Her right to sue heihusband is not confined to matrimonial- causes alone, though it ismore frequently exercised in those actions – Lee- page 422. InRoman-Dutch Law the ability of a married woman to.litigate doesnot follow from her right to contract, Voet, 2.4.36 and 5.1.15 referredto by Kotze’ in Van Leeuwen’s Commentaries on Roman-Dutch Law,Vol. 1, page 489. Also see Lee, ibid page 422.
The fundamental principle in Roman-Dutch Law that a marriedwoman is denied the right to sue and be sued in a Court of law isbased on the conception that she is deemed, on marriage, to be aminor under the guardianship of her husband and in my view, isindependent of her right to hold separate property. Indeed, this isdemonstrated by the Matrimonial Rights and Inheritance Ordinance,Cap. 57, which abolished community of property as a consequenceof marriage and recognised the separate property of a wife, buitnevertheless did not give her the power to sue or be sued in a Courtof Law until much later; when it was expressly provided for. bysection 5 of the Married Women’s Property Ordinance, Cap. 56.Section 6 of the Jaffna Matrimonial Rights and Inheritance Ordinance.Cap. 58, which permitted a wife subject to the Tesawalamai to holdcertain kinds of property acquired during or before her marriage, asher separate property, made no provision for her to sue or be suedin respect of them, in her own right. The property she could holdseparately was limited to what she was entitled to by way of-gift orinheritance or by conversion of any property to which she mighthave been so entitled to or might so acquire.
In the present case it is established that the respondent is a marriedwoman governed by the Tesawalamai and that her husband is still
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alive. In the absence of evidence that the marriage has been dissolvedit is presumed to subsist- and the respondent cannot sue alone inthis actioh, 'without being assisted by her husband or first obtainingthe ileave 'of [Court. -^irj
In 'Bit]rites Vs. Harwarct, '(TO), it was held. t^at.,3. married,.yypnanwhose husband i's confined in a mental hospital mu$t obtain the, leaveof Cbiirt before instituting an action, because -insanity .does motdissolve the marriage.' "
VtjeC'V. 1.19', (Cane’$;firapslation) however plates;l>:-
“In those cases however in which it is iWrong for ewomanto appear in a judicial proceeding without'her husband’sauthority, if all the same she has appeared contrary tothe prohibition of law and .has come off the winner, thejudgment delivered to her ■ benefit will be valid. This isso both on the analogy ofca-judgement given for a minorwho lacks a curatorp-and^rr virtue of the ratification which’a husband can at all times effect.”
In regard to minors, Voet V.l. II states:
“Yet if a minor has figured in a judicial proceeding:without a curator, having perchance been held to, be amajor by mistake and thus not having been shut out by-any exception being raised to his persona, a judgement,delivered against him is of no weight, but one given forhim will be effective.”
these passages in Voet in regard to married women and minors, ‘appear to refer to actions instituted and prosecuted by them, withoutany objection being taken to their legal capacity to sue alone. If itwere otherwise, the Roman-butch Law prohibiting .a,.married woman;subject to certain specified exceptions, from,, instituting an actionunassisted by her husband, would be rendered, nugatory..
In the present case, .on,,the other hand, objection was taken bythe appellant to the institution of the action by the’respondentwithout joining her husband as a plaintiff, at the very' first1 opportunityhe had, namely,- in his answer, and specific issiies"were raised byhim in regard to the. maintainability of the action on that ground.Nevertheless, the respondent persisted in continuing with the actionon the basis that she -was entitled to sue in her own right and hasnow obtained judgment in her-favour. The possibility bf ratificationby her husband, is put of the question since he does not appear to
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Ibrahim r. Annamma I Abdul i'adrr. J.i
643
be living with her now. In these circumstances, the action filed bythe respondent on her own, is wrongly constituted and cannot bemaintained. The passage in Voct V. 1.19 will not avail the respondent.
issue 5 must therefore be answered in the affirmative, issue 6 inthe negative, and the consequential issue 7, though not. quite correctlyworded, must be answered in the negative. I accordingly set asidethe judgment of the learned District Judge and dismiss the respondent'saction with costs.
The appeal is allowed with costs.
ABDUL CADER, J.
The plaintiff filed this action against the defendant on a promissorynote granted by theo defendant to one K. A. Mohamadu which hadbeen “endorsed and ^delivered.’… to the plaintiff for value.” (para 3of the plaint).
The defendant filed answer admitting the granting of the promissorynote, but denied, that any consideration passed on the said notewhich was granted “on trust” to Abdulla. The defendant denied thatthe plaintiff was an endorsee for value. He also stated that theplaintiff was a mistress of one Asankutty who was a brother ofAbdulla and the note had been collusivclv endorsed to the plaintiffwithout any consideration for the purpose of instituting this action;the plaintiff is not a holder in due course and the endorsement infavour of the plaintiff was “affected with fraud, duress or force andfear or illegality.” The defendant also pleaded that the plaintiff wasgoverned by the law of Thesawalamai.
At the trial,, the defendant admitted “having given to K. A.Mohamadu the pro-note.” There is a further statement in the recordthat K. A. Mohamadu endorsed and delivered the said note to theplaintiff.
Counsel for the appellant stated that .Mohamadu was not presentto make this statement. Unfortunately, tliere was no Counsel appearingfor the plaintiff. However, this is not material as the issues formedhad been framed on the basis of an endorsement and delivery tothe plaintiff, because no issues were framed as. regards fraud, duress,force, fear or illegality..
The only issue that was raised as regards , the validity of -theendorsement was whether consideration passed.on the saicf-pixfcnote.at the time the pro-note was endorsed And delivered,-
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As regards the averment that the pro-note was given on trust,issue No. 2 covered it.‘‘Wasconsideration passed on the said pro-note.”
As regards the defence taken on Tesawalamai, issues 5 and 6 wereframed and my brother L. H. de Alwis, J. has dealt with it fullyand I need hardly add anything to it.
As regards issue No 2: ‘‘Was consideration passed on the saidpro-note”, the defendant admitted: ‘‘1 am prepared to pay Rs. 21,000/-and its interest.” So that in evidence the defendant had abandonedthat* issue and his Counsel did not press this issue before us.
We are, therefore, left with the contention whether the endorsementin favour of the plaintiff was invalid for the reasons that no considerationpassed for the endorsement.
As regards this question, the learned District Judge said that section30 of the Bills of Exchange Ordinance applies and because therewas no issue as regards fraud, duress etc. there is a presumptionthat “value has in good faith been given for the bill” and, therefore,held against the defendant. The District Judge had relied on section30 (2):
“Every holder of a bill is prima facie deemed to be a
holder in due course; but if it is proved that the bill
is affected with fraud, duress or force, fear or illegality,the burden of proof is shifted etc.”
Counsel for the appellant has drawn our attention to section 29which reads as follows:-Section 29(1):
“A holder in due course is a holder who his taken a bill,complete and regular on the face of it under the followingconditions, namely:-

that he took the bill in good faith and for value”
He submits that under section 29 to establish that he is a holderin due course, a holder must prove that he took the bill in goodfaith. and for value. But section 30(2) is to the effect that there isa presumption in favour of a holder of a bill that he is a holder indue course. Therefore, while section 29 states that are the conditionsunder which a holder becomes a holder in due course, section 30(2)creates a presumption placing the burden on the holder to prove theconditions in section 29 when it is proved that the bill is affectedby “fraud, duress, or force and fear or illegality”. I see nothing
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Ibrahim v. Annammu fAhilul CiiJcr. J I
645
inconsistent between these two sections. When the defendant did notframe issues on fraud etc. and did not place any evidence' on thatcontention, the learned District Judge was entitled to come to theconclusion that the plaintiff would be deemed to be a holder in duecourse.
Besides, what does it matter to the maker even if the payee inthe note had gifted it to the plaintiff? When the defendant had notframed an issue as regards consideration between himself andMohamadu, thereby admitting consideration as between the ijiakerand the payee, it is immaterial that no consideration passed betweenthe payee and the plaintiff.
It. is significant that value and not valuable consideration is theterm used, and the note is payable to Mohamadu's order and hehad endorsed it in blank. Therefore, it became payable to the bearerwho is the plaintiff in this action. I uphold the decision of the learnedDistrict Judge as against the defendant on issues 2. 3 and 4.
As regards the question whether a Tesawalamai woman can suea third party without joining her husband. I agree with L. H. deAlwis, J. In AnnafiUlai v. Eswaratingam, (8) H.N.G. Fernando. J.stated as follows:-
“It being clear law that a husband cannot validly donate thewife's half-share of the tediatetam. it would be unreasonable tosuppose that a wife, although a co-owner with a person towhom the husband purports to transfer the entirety of theproperty, is powerless to assert her right either by way ofvindication or pre-emption, if the husband chooses to remaininactive. In the absence of any authority to the contrary or anyexpress provisions in the Tesawalamai debarring a wife fromsuing alone in such a case, I consider it only reasonable toapply in this situation the well-known practice that a party whoshould join as a plaintiff, but refuses to do so, may instead bejoined as a defendant.. In this way resort may. I think, be hadto the principle ubi jus ibi remedium. I would acordingjy holdthat the plaintiff’s action was properly instituted by the joinderof her husband as a defendant”.
The headnote reads as follows:
“A husband to whom the Tesawalamai applied purported todonate not only his own share but also his wife’s half share ofthe tediatetam before the date of operation of. the Jaffna
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Matrimonial Rights and Inheritance (Amendment) Ordinance,No. 58 of 1947. Subsequently, in October 1955, the donee soldthe property to the 3rd defendant.
Held,
that the donation was invalid as to the wife’s share.
that the wife, by reason of the donation, became co-ownerwith the donee.
that the wife’s legal relationship to the donee was suchas to confer on her the right of pre-emption of the shareheld by the donee.
that the wife was entitled, in her own right, to maintainan action for pre-emption during the subsistence of hermarriage with her husband. In such a case, the husband,if he chooses to remain inactive, may be joined as a defendant.
Held further, that the question whether the 3rd defendant had anyknowledge or notice of the donee’s right to a half-share was of norelevance”
I am of the view that the headnote (iv) is misleading. I haveemphasised the words “in such a case" because, in my opnion, thedictum of Fernando, J. is applicable only to a situation similar towhat existed in that case, viz: a husband who had acted adverse tothe interests of his wife against whom the wife had to obtain adeclaration in her favour before she could establish her right tomaintain the action against, a third party within the time prescribedby para 9 of chapter 64. In such circumstances, it would defeat thepurpose of the law if the wife is required to obtain the consent ofher husband to join her as a co-plaintiff. The only other manner inwhich she could meet the requirement of the Tesawalamai law wasto make him a defendant. No doubt, he was made a defendant toobtain a declaration in her favour, but just the same he was adefendant. I do not think that this judgment .is an authority for theproposition that the Tesawalamai woman has been “liberated”. Thatshould await legislative action and it is not for the Courts to rectifythis anomaly.
The appeal is allowed and the action is dismissed with costs inboth courts.
RODRIGO. J,
I do not agree that the action should be dismissed because theplaintiff had not appeared with her husband. She had obtained
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/ StiittHvuni i.1
647
judgment without his help and in any event, in mv view, it is notnecessary for a Tesawalamai woman to appear by her husband. Ido not propose to write a judgment giving my reasons for this viewas my two Brothers have taken g different view and as this is nota final Court of Appeal.
Appeal allowed.