029-NLR-NLR-V-51-NOORUL-HATCHIKA-Appellantand-NOOR-HAMEEM-et-al-Respondents.pdf
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Soorul Hatrhika r. Soor Hameem
1950 Present: Wijeyew&rdene CJ., Jayetlleke S.P.J., NagaUngam J.,Gratlaen J. aod Pnlle J.NOORUL HATOHIKA, Appellant, and NOOR HAMEEMet at., Respondents
S.C. -D. 0. Colombo, 4,907
Agreement—Promise to transfer immovable property m consideration of marriage—Should be rrecuted before notary—Prevention of Frauds Ordinance (Cap. 57),
Section 2.
An ttgreument to transfer immovable property in consideration of marriageis governed by section 2 of the Prevention of Frauds Ordinance and should boembodied in a notarial agreement,
Thamhy Lebbe et al. v. .Jamaldeen (1937) 39 V. L. fi. 73 and Lila Utnmo tvMajeed (1943) 44 V. L. R. -324 overruled,
.^.T’PEAL from a judgment of the District Court, Colombo. Thiscose was referred to a Bench of five Judge* under section 51 of tho
Courts Oriiinance,
II. YV'kmmanayake. K.O., with I. Misso and J. B. White., fordefendant appellant,—The case for the plaintiffs was that the 2nddefendant promised to give as dowry to the 2nd plaintiff tho promisesbearing assessment No. 17, 17th Lane, Kollupitiya. They asked forspecific performance of that agreement or in the alternative for Rs. 30,000as damages. The agreement did not comply with the requirement ofsection 2 of Ordinance No. 7 of 1840 as it was not executed before anotary and two witnesses.
'fhe District Judge, following the decisions of this Court in ThombyIsbbe et ai. v. Jamaldeen * and lAla Umma v. Majccdl, held that the agree-ment was valid though not executed in accordance with section 2 ofOrdinance No. 7 of 1840. It is submitted that these cases have notbeen correctly decided. The decision in these cases was that agreementsto trahsfer lands in consideration of marriage were valid even thoughsuch agreements were not nolarially attested. But there arc earlier cAseswhere it was held that such agreements were unenforceable under section2 of Ordinanco No. 7 of 1840. See A. A. Perem et al. v. Abeydeera3and Lewai v. Pakeer4. These two cases were not cited at the argumentin Thamby Lebbe et al. v. Jamaldeen (supra) the decision of which wasfollowed in Lila Umma v. Majeed {supra).
An agreement to convey land as dowry comes clearly within section 2of Ordinance No. 7 of 1840. Conveyance by way of dowry is a conveyancefor valuable consideration. See Jayasekara v. Wanigarutne6.
l A. liayley, K.C., with C. K. S. Perem, M. H. A. Aziz ami V. K.K<in<lasamy, for plaintiffs ivs|>ondents.—The two earlier leases Pereraet al. v. Abeydeem {supra) and Leimai v. Perera (supra) were referred to in
* (1910) 2 MtUarn Cases 112.
« (1915) 6 Uni. Sates of Cases 40.
M1909) 12 S. L. R.301.
(1937) 39 S. L. R. 73.
(1943) 44S.L. R. 524.
WlJEYEWARDENE C.J.—iS’ourid liatdixka v. Sour llutneem l.v>
Lila Unttna v. Majeed (supra) though not in Thamby Lebbe et al. v. Jamal-deen (supra). The present question whether an agreement to conveyland as dowry comes within section 2 of Ordinance No. 7 of 1840 wasnot considered in the earlier cases.
Thamby Lebbe et al. v. Jamaldeen (supra) has been correctly decided sofar as it decides that an agreement to convey land as dowry does notcome within section 2 of Ordinance No. 7 of 1840. Section 2 prohibits 3things: (a) sale, purchase, etc., of land; (b) promise, bargain, etc. foreffecting any of the objects enumerated in (a) ; (c) any contract or agree-ment for future sale in purchase of land. The dealings referred to in(6) and (c) are clearly distinguishable ; (6) does not refor to future tran-sactions but (c) does refer to future dealings and covers contracts oragreements for future sale or purchase only. The word “ for ” with thepresent participle means “ for the purpose of ”. See Attorney-General v.Sillem An agreement to convey land as dowry does not come under (a)or (ft) or (c). Ordinance No. 7 of 1840 is a restrictive Ordinance and there-fore must be strictly interpreted. A consideration of the earlier enact-ments on the subject tends to show that the Legislature did not intendagreements to convey land as dowry to come within Ordinance No. 7 of1840. Sec. Regulation 1 of 1806; Regulation 4 of 1817 ; KandyanProclamation of October 28, 1820, and Ordinance No. 7 of 1834 ; also1862 .flttShV* Reports 65, case AT<>. 15,378. The decision in ThambyLebbe et al. v. Jamaldeen (supra) therefore is correct both from a logicaland a historical point of view.
Further, it seems reasonable to suppose that Ordinance No. 7 of 1840did deliberately leave out dowry and marriage settlements owing to thestate of our law, Community of property on marriage being part of ourlaw at the time, it was probably thought that difficulties might arise ifmarriage settlements were brought under the Ordinance No. 7 of 18*10.»See In Re Hume Mary Hume v. Brodie Bogus ds Go.2
As regards Roman Dutch Law the better opinion seems to be that nowriting was necessary for ante-nuptial contracts. Sec Voet, De PaetisDotn-libus, 23. 4. 32. Van Der Keesal is of the same opinion. Soo alsoLee on Roman Dutch Law (2nd cd.) p. 215 and Wille on South AfricanLaw (2nd ed.) p. 104.
E. B. Wikramanayake, K.C., in reply.—tn regard to the three classesof transactions contemplated in section 2 of Ordinance No. 7 of 1840there seems to be no substantial difference between the second andthird classes; the two classes cover the same ground and it is difficult tounderstand why the third class is there at all.
Cur. adv. vult.
February 2, 1960. Wuxybwauosne C.J.—
This appeal was argued first before my brothers Gratiaen and Pullc andas they doubted the correctness of two decisions of this Court—ThambyLebbe et al. v. Jamaldeen,3 and Lila Umma v. Majeed1—it has come beforethe present Bench.
1 (1864) 33 /.. J. (Exchequer) 209 at 213.» {1931) 39 A'. L. R. 73.
* 1863-8 Ramanathan's Reports 222.* (1943) 44 A'. L. R. 524.
130
WT.1EYEWARUBNB C.J.—Moorul Hatchiku t». Moor Hamwiit
The scwad plaintiff is the wife of the first plaiutiff. The first defendantis the father and the second defendant, the mother, of the second plaintiff.The plaintiffs alleged that “ in consideration of their marriage the seconddefendant undertook to give as dowry to the second plaintiff ” the pre-mises bearing assessment No. IT, 17th Lane, Kollupitiya. The registerkept under the Muslim Marriage and Divorce Registration Ordinance,No. 27 of J929, contains the following entry in respect of the marriage ofthe plaintiffs, signed by the second defendant:—
1 ‘ The dowry promised bv the bride’s mother is : —
The entirety of premises No. 17, 17th Lano. Koilupitiva, and givenwhen both bride and groom ask for it ”,
Following the decisions mentioned above, the District Judge held thattho agreement pleaded by the plaintiffs was valid though it was notexecuted before a Notary as required by section 2 of the Prevention ofFrauds Ordinance, No. 7 of 1840.
It was argued for the respondents before us (i) that the Roman DutchIiiiw did not require agreements in consideration of marriage to beiiolnrially attested or even to be in writing and (ii) that the Preventionof Frauds Ordinance kept tho Roman Dutch Law alive as it designedlyomitted any reference to such agreements and refused to follow in thatrespect the Statute of Frauds (29 Car. ii chap. 3 sec. 4) which contained aspecific provision dealing with such agreements.
As regards tho first point I may state that there is a conflict of opinionamong the Roman Dutch Law writers. Dealing with this question,Nathan ways-
“ Voct holds that an antenuptial contract need not be in writingand in support of his view cites Noostadius (on Antenuptial Agreements,sections 18,19); and Dutch Consultations (3,1,149, 16-4). VanLecuwcu(Cons. For. 1, 1, 12, 9) takes the same view of the matter. Voet, alittle further on, proceeds to state that antenuptial contracts containinggifts amounting in value to above 500 aurei (fixed in modernpractice at 5001.), require to be in writing, although even then theyneed not be notarial. It is the same, Voet save, with antenuptialcontracts which provide for the future devolution of property byinheritance. Van der Linden (I, 3, 3 ; Juta p. 15) says distinctly thatthe contract must be in writing, and must- be contained in a notarialinstrument although, in general Dutch Law, no legal registrationthereof is required (23, 4, sections 24).”
“ Van dcr Linden’s view was followed by the Cape Supreme Court,which decided that an underhand antenuptial contract signed by thespouses and attested by witnesses could not avail as against the wife’screditors, who claimed payment of a debt contracted by tho wifebefore marriage (Wright v. Harry and Another 1. S. 6 ; 1 M. 175). Vander Kecssel (section 229 ; see also Steyler v. Dekkers, 1 R. Ill) hol<lswith Voet that antenuptial contracts need not be in writing. Vander Linden*8 is the more modem opinion, and, supported, as it isby the opinion of the Cape Supreme Court (given in 1850), wouldappear to bo correct as to the general Dutch Law
VTTJEYEVVARDENE C.J,—Noortd HcUchika v. Noor Hameem
137
“ Voet himself (23.4.50) gays that publicity is required; but thisonly means that a Notarial contract is necessary ; and the necessityfor such notarial contract is limited by Voet as stated above to giftsof 500/. and upwards, of landed property and property to go by way ofinheritance (Nathan, 2nd Edition, volume 1, paragraph 424),Whatever be the position under the Roman Dutch Law, the importantquestion is whether the Prevention of Frauds Ordinance does not requiresuch agreements to be embodied in a notarial document when suchagreements relate to immovable property.
Section 2 of the Ordinance enacts that:—
(а)“ No sale, purchase, transfer, assignment or mortgage of land
or other immovable property ” ;
(б)“ No promise, bargain, contract or agreement for effecting any
such object, or establishing any security, interest or incumbrance
affecting land or other immovable property ;
“ Nor any contract or agreement for the future sale or purchaseof any land or other immovable property ”
shall be of force unless it is in writing and signed by the party makingthe same in the presence of a Notary Public and two witnesses and unlessthe execution of such writing is duly attested by such Notary andwitnesses.
I do not see any reason why it should be said that an agreement totransfer immovable property in consideration of marriage does notcome under clause (6), when that clause is wide enough to embrace allagreements for the transfer of immovable property. 1 note that arestrictive interpretation was sought to be given to that clause in ThambyJjebbe el al. v. Jamaldeen (supra) by holding that the clause referred to“ a means of and a stage in the formal effectuation of a sale, purchase,transfer, assignment or mortgage It is sufficient to state that therespondent’s Counsel was unable to throw any light on the significance ofthose words “ a means of and a stage in the formal effectuation
I am unable to appreciate the argument based on the fact that ourOrdinance makes no specific reference to agreements in considerationof marriage while the Statute of Frauds makes such a reference. Section 4of the English Statute provides that agreements in respect of severaltransactions shall not be enforceable unless they are in writing andincludes among such transactions (a) a contract or sale of lands, (//) apromise to answer for the debt, default or miscarriage of another, (c) anagreement in consideration of marriage. The arrangement under ourOrdinance is quite different. Section 2 of our Ordinance refers onlyto transactions in respect of immovable property. It is section 21 whichrefers to the need for a writing (not necessarily a notarial writing) forcontracts of suretyship and for agreements to pledge movable propertywhere there is no delivery of the property to the pledgee. Section 21,os it was originally passed, referred also to contracts for the sale orpurchase of movable property where there was no delivery of the propertyor part payment of the price by the purchaser. This latter provision wasrepealed by section 67 of the Sale of Goods Ordinanoe (vidz LegislativeEnactments, 1923 Edition, volume 2) jus the necessary law with regard
Wanigasuriya v. Hiniduma Co-operative Society
13S
to contracts for the sale of movable property was re-enacted in section 5of the Ordinance as numbered in the 1938 edition of the Legislative-Enactments. When the English Statute made special reference insection 4 to agreements in consideration of marriage it thereby requireda writing for all such agreements whether they referred to immovableprojjcrty or movable property. Our Ordinance classified various tran-sactions under three heads—(a) those requiring a notarial document,
those requiring a non-notarial writing and (c) those which requireno writing at all. Our Legislature drew a distinction betwecen agreementsin respect of immovable property and agreements in respect of movableproperty. The position under the Prevention of Frauds Ordinance isthat agreements in consideration of marriage fall under section 2 if theyrelate to immovable property and agreements in consideration of marriagerelating to movable property fall outside the Ordinance.
I am unable to follow the decisions in Thamby Lebbe el al. v. Jamal•deen (supra) and Lila Umma v. Majeed (supra). The view I have takenis supported by two earlier decisions of this Court—Perera v. Abedeera 1and Levvai v. Pakeer Tamby2.
I allow the appeal and direct decree to be entered dismissing theplaintiffs’ action with costs in both the Courts.
Jayetileke S.P.J.—I agree.
Nac.altnoam J.—I agree.
Gratzaex J.—I agree.
Puzj-e J.—I agree.
Appeal allowed.