049-NLR-NLR-V-13-PONNAMMAL-v.-PATTAYE-et-al.pdf
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[Full Bench.]
June 30,1920
Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice,Mr. Justice Middleton, and Mr. Justice Wood Benton.
PONNAMMAL t>. PATTATE et al
D. C.t Kandy, 18,16.2.
Sale of immovable property by wife—Deed signed by husband—No expresswords signifying husband's consent—Ordinance No. 15 of 1876, s. 9.
A deed of conveyance of immovable property executed by amarried woman was also signed by the husband (with a mark) underthe signature of the two witnesses. The Supreme Court (HutchinsonC.J. and Middleton J., Wood Benton J. dissentients) considered thatthe husband had signified his consent in writing to the transferwithin the meaning of section 9 of Ordinance No. 15 of 1876.
Hutchinson C.J.—It is not absolutely necessary to addthe
words “ I consent,” or any other words to that effect.
Wood Bbnton J.—Section 9 is satisfied by consent in writing.It should be such a consent as will leave no need or room for oralevidence, or conflicting inferences, as to its meaning when once thesignature or mark of the husband has been duly proved.
T
HE facts of this case are fully set out in the judgment ofHutchinson C.J.
Van Langenberg, Acting Solicitor-General, for the added defendant,appellant-.—The husband has merely attested the deed as a witness.The fact that the husband signed the deed as a witness is notsufficient to satisfy the requirements of section 9 of OrdinanceNo. 15 of 1876 (see D. C., Kandy, 7,977 l. Section 9 would not besatisfied even if the husband had signed- below the name of thewife. There ought to be written evidence of consent; oral evidencecannot be admitted to prove that the husband intended to give hisconsent by signing the deed. The fact that a person signed as awitness does not necessarily show that he knew the contents of thedeed. The provisions of section 12 indicate that the consent mustbe of a formal character. Counsel also referred to Marie Kangany-v.Karuppasamy Kangany,2 Jayesinghe v. Perera,3 Baling v. Vethecan.*Bawat for the plaintiff, respondent.—The husband must haveknown the contents of the deed, as, under the Notaries Ordinance,the deed had to be read and explained to the wife—who was anilliterate person—in the presence of the witnesses. TheunreportedKandy case may be distinguished from the present. There thehusband was one of the two witnesses, and his signature, was thereforenecessary for the validity of the deed. Here the husband signs his
1 S. <7. Min., Oct. 24, 1895.
» (1908) 10 N. L. R. 79.
(1903) 9 N, L. R. 62.
(1903) 1 A. G. R. 1.
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June30,19X0 name after the two witnesses; his signature was not necessary forPotmammal validity of the deed; the reasonable inference is that the husbandv. Pattaye intended by his act to signify his consent as required by section 9 ofOrdinance No. 15 of 1876.
Cur. adv. wit.
June 30, 1910. Hutchinson C.J.—
The plaintiff. sued in this action the first defendant and herhusband, the second defendant, for declaration of her title to threepieces o,f land and to eject the defendants therefrom. She allegedthat the first defendant, being the owner of the lands, by threedeeds, two of them dated May 19, 1900, and the third May 28,1900, sold and transferred the lands to her, but is in wrongful andforcible possession of them. They said in their answer that thedeeds were executed by the first defendant without the writtenconsent of her husband, the second defendant, and are thereforeinvalid in law; that the first defendant only received Es. 250 asconsideration for the transfers, which sum they .offered to repay,and that the deeds were only executed as security for that sum;and that the first defendant, with the written consent of the seconddefendant, by deed dated October 5, 1900, sold and transferred thelands to Kana Rama Arunasalem Chetty, who is now in possession.Thereupon, on the plaintiff’s application, Arunasalem Chetty wasadded as a defendant; and afterwards the plaint was amended byadding a claim that, if the Court should hold that the deeds wereinvalid, the defendants should be ordered to refund Rs. 1,100, theconsideration for the transfers, with interest, and that the landsmay be declared bound for the 6aid payment; and the originalplaintiff’s husband was also added as co-plaintiff. The addeddefendant filed his answer, alleging that the plaintiff’s deeds wereinvalid because executed by the first defendant without her husband’swritten consent, and that the first defendant, with her husband’swritten consent, had sold and transferred the lands to him by thedeed of October 5, 1900.
Issues were framed, of which the following are now material: —
Was the first defendant the wife of the second defendant at
the date of the first defendant’s transfers to the plaintiff ?
If so, are the transfers of no effect by reason of the husband’s
written consent thereto not having been granted ?
The District Judge found on the first and second issues that therewas no proof that the first defendant was the wife of the seconddefendant at the date of her transfers to the plaintiff, and that, ifshe was, the transfers were not invalid, as the husband’s writtenconsent was obtained thereto. On those findings he gave judgmentfor the first plaintiff for the land and damages.
At the first hearing of the appeal before Middleton J. and myselfwe thought that the evidence proved that the first defendant waB
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the wile of the second defendant, but we referred the appeal for June 30,1910argument before three Judges on the second issue.Hutchinson
The three deeds are similar in form and in mode of execution and c.J.attestation. In each of them the first defendant, the vendor, is potmal^maidescribed as “ Pattaye, wife of Arasen.” She signed with a mark, v.Pattayeand after her mark are the words, in Tamil,
“ Witnesses:
“ (1) Shayema Shaina Abbubaker.
“ (2) Eawane Marudamuttu.
“ This is the mark x of Shaina Arasen.
“ Awana M. Cassem (in Tamil).
“ A. M. Cassem (in English).
“ N. P.”
Awana M. Cassem was the notary who attested the deed.
Did Arasen sign merely as a witness, or for the purpose ofsignifying his consent to the transfer thereby made by his wife?
It is to be noted that the first two signatories after the woman signin letters, and their names are numbered (1) and (2); that the lawrequires that there must be two witnesses, who must sign in letters,and that, where the person executing the deed is or professes to beunable to read it, the notary must read it over and explain it in thepresence and hearing of that person and of the attesting witnesses;that in the absence of evidence to the contrary, the execution of thedeeds having been admitted, we should presume that this require-ment of the law was fulfilled, and that there seems no reason whythe husband should have signed the deeds except for the purpose ofsignifying his consent to them. The execution of the deeds wasadmitted at the trial, so that no evidence was called to prove it, oras to the circumstances attending the execution; and none of thedefendants gave evidence. In my opinion the only possible inferenceas to the husband’s signature which can be drawn from the inspectionof these deeds is that he signed to show his consent, and it was notabsolutely necessary to add the words “ I consent,” or any otherwords to that effect.
I ought to add that on further consideration of the first issue, I thinkthat we ought to accept the District Judge’s finding on that issue also.
I would therefore dismiss the appeal with costs.
Middleton J.—
There are two questions in this case.: (1) Whether a husband bysimply signing a conveyance given by his wife to a purchaserthereby gave his written consent to the transfer under section 9 ofOrdinance No. 15 of 1876; (2) if the District Judge was right inholding that there was no proof that the first defendant was the wifeof the second defendant, Arasen, at the date of the first defendant’stransfer to the plaintiff.
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June $0,1910 The point has been referred to the Full Court for considerationMiddleton ow*n§> to the unreported decision of this Court- in D. C., Kandy,J. No.‘ 7.977,1 where it was apparently assumed, without any reasonPonnammal being given, that such signature was not a written consent withinv. Pattaye the meaning of the Ordinance. If a man signs a promissory note ora bill of exchange, the presumption is that he consents to and deemshimself liable to the obligations contained in the instrument.
In the present case the sigr-dsory has made his mark under thesignatures in writing of the witnesses. By “ The Notaries Ordinance.1877,’* section 26, which was in force when this document wasexecuted, and the provisions of which have been re-enacted bysection 29 (8) of Ordinance No. 1 of- 1907, the notary cannot' authenticate or attest any deed or instrument whatever to whichtwo witnesses at least have not subscribed their signatures ip letters.He is not debarred from having more than two witnesses, but it is notunreasonable to assume that the two persons who signed in letterswere the necessary two who signed in letters.
In the attestation clause the notary alludes to Arasen as one ofthe attesting witnesses, in whose f-^.senee the deed was read overand signed. It was quite clear that section 9 of the Ordinance of1876 did not intend to prevent illiterate persons from consentingto their wives’ transfers of immovable property, and therefore themark of the cross, .admitted to be the mark of Arasen, as the allegedhusband o.f the first defendant, must be taken to be in law hi6signature in writing.
In my opinion, apart from the attestation clause subscribed bythe notary, there is an unrebutted presumption amounting to proofthat Arasen, by signing the deed in question, consented to itscontents. I think, therefore, the question submitted to the Full. Court must be answered in the affirmative.
As regards question (2), if question (1) is decided in the affirmative,there is no necessity for the Court to consider it further. If Arasenwas not the first defendant’s husband, his written consent is notrequired. If he was, I think it has been given. It is not necessary,therefore, for us to consider whether the finding of the learnedDistrict Judge on this question is correct or not.
I would therefore dismiss the appeal with costs.
Wood Renton J.—
In this case the plaintiff-respondent and the added party appellantboth derive title from the first defendant, Pattaye, who is the wifeof the second, the plaintiff-respondent, under three deeds executedin May, 1900, by the first defendant herself, the added party, undera deed from both defendants in the following October. Althoughthe second defendant did not execute the deeds in favour of the
» S. C. Min., Oct. 24, 1895.
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plaintiff along with his wife Pattaye, he affixed his mark, which is June30,1910duly attested under the names of two witnesses to the execution Woodof each of them. The actual execution of these three deeds was Renton J.admitted on behalf of the appellant at the trial. The appellant ponnammaicontended, however, first, that Pattaye was not proved to have been «. Pattayemarried to the second defendant; and in the second place, that inany event the deeds in favour of the plaintiff-respondent wereinvalid, inasmuch as Pattaye had executed them without theconsent of her husband, coutrary to the requirement of section 9 ofOrdinance No. 15 of 1876, to the provisions of which both she andher husband were subject. The learned District Judge decided- •against the appellant on both points. The first’ was not seriouslypressed upou us in appeal. In regard to the second, 1 am of opinionthat- the decision of the learned District Judge is wrong. Mr. vanLangenberg, the appellant’s counsel, argued that we must decidethe case on the basis that the first defendant’s husband had signedthe deeds in question solely as an attesting witness. Mr. Bawa, onbehalf of the plaintiff-respondent, contended that it was apparenton the face of the record itself that he had signed as, in a sense, anassenting party. No evidence on the point was adduced at thetrial, and as a matter of inference from the deeds themselves, there issomething to be said in support of each of these rival contentions.
On the one hand, Pattaye’s husband is not made a party to thedeeds, and his mark is made under the signature of the witnesses.
On the other hand, Pattaye describes herself as his wife in each ofthe deeds, and the witnesses, whose names are signed in the ordinaryway, are respectively numbered (1) and (2). Mr. Bawa strenuouslyargued that these circumstances, together with the fact that Pattaye’shusband was an illiterate, showed conclusively that his mark hadbeen added to the documents for the purpose of indicating hisconsent to their execution. For the purpose of the present case, it-seems to me to be immaterial which of the two views is the correctone. If Pattaye’s husband signed as an attesting witness, thedecision of Sir John Bonser C.J. and of Withers J. in D. C., Kandy.
No. 7,977,1 is an express authority, which I think that we oughtto follow, for holding that such a signature is insufficient for thepurpose of satisfying section 9 of Ordinance No. 15 of 1876. Buteven if his object in affixing his mark must be taken to have beento express his assent to his wife’s conveyances, I still think thatthe requirement of the statute has not been complied with.
Prior to Ordinance No. 15 of 1876 a married woman had no powerto enter into contracts of this character during her coverture (seeSilva v. Dissanayake 2. That disability still exists, except in so faras it has been removed by Ordinance No. 15 of -1876. Section 9 ofthat Ordinance removes it where a married woman has obtained the“ written consent of her husband ” thereto, “ but not otherwise.”
1 S. C. Min., Oct. 24, 189$.* (1892) 2 O. L. R. 123.
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Tune30,l9lO Both the language of section 9 and the provisions of section 12,'Wood prescribing the formalities by which the husband's consent may beRbnton J. dispensed with, clearly show, in my opinion, that it was the intentionPonnammal of the Legislature to impose the necessity of obtaining that consentv. Pattaye as a fetter on the wife’s power of alienation. I do not think thatwe ought to whittle away the strong language of section 9, or toaccept anything as a satisfaction of its provisions, except a writtenexpression of consent on the *art of the husband. I adhere on thispoint to what I said in the case of Marie Kangany v. KaruppasamyKangany.1 I think that in order to satisfy the provisions of section9 of Ordinance No. 15 of 1876 there must be an express consent inwriting by the husband prior to, or at any. rate, contemporaneouswith, the execution of the particular instrument involved, andhaving relation to that instrument. I dp not see that illiteracycreates any difficulty in the application of this construction of theOrdinance. The mark of the illiterate must be proved in the usualway. Even where the husband is himself a party to the deed, itwould still, I think, ex abundanti cautela, and, as a rule, of good. conveyancing, be well to see that his consent is, in terms or in effect,expressed. In my opinion the English decisions under section 4of the Statute of Frauds do not afford us much assistance inconstruing section 9 of Ordinance No. 15 of 1876. As at presentadvised, although it is unnecessary to decide the point expressly,J should have difficulty in following the decision of Sir CharlesLayard C.J. and Wendt J. in Jayesinhe v. Perera2 But in any casethe language of section 9 of Ordinance No. 15 of 1876 is strongerthan that of section 21 of Ordinance No. 19 of 1907 as to breachof promise of marriage. There is no Roman-Dutch text that I amaware of which throws much light on the point now under consider-ation. Analogous provisions are to be found in French law, and insome of our own Colonial systems of .jurisprudence based on thatlaw. The old custom of Paris required that the wife should have anexpress special authority from her husband for the particular actif it related to the alienation by sale or hypothecation, of movableproperty .{Burge 2d ed.t vol. 1/7., p. 309). The Code Civil, Art. 217.and the Civil Code of Lower Canada, Art. 177, are not so strict;but they both require that the husband should either consent inwriting or be a party to the deed. Section 9 of Ordinance No. 15of 1876 is satisfied only by consent in writing. It should, in myopinion, be such a consent as will leave no need or room for oralevidence, or conflicting inferences, as to its meaning when once thesignature or mark of the husband has been duly proved.
I would allow the appeal, with all costs here and below. Themajority of the Court, however, take a different view of the law,and judgment will be entered in accordance with their decisions.
Appeal dismissed.*{M3)9N.L.B. $2.
1(1908) 19 N. L. R. 79.