A wife is not liable on a contract for sale of immovable property executed by her husband as a vendor unless she gives consent or intervenes as a vendor.

JUDGMENT :- This appeal (apelacao) is directed against the judgment passed by the learned Comarca Judge, Margao, dated 14th July, 1965.

2. The facts leading to this appeal are that the appellant agreed to purchase from respondents Vassanta Vitola Camotim and Harinata Ramanata Poi Raiturcar immovable property mentioned in private agreement dated 14th July, 1964. The sale price stipulated was Rs. 35,000. The respondents received a sum of Rs. 5,000 as an earnest money. The balance of Rs. 30,000 was payable by the appellant within 60 days from the agreement. Before the expiry of this period, the appellant served a notice telegraphically calling upon these respondents to (1) sign a declaration for the purposes of tax (siza) on transfer of immovable property; and (2) demarcate the area (implantacao). The respondents appeared at the site as required by the appellant. They agreed to sign the declaration but refused to demarcate the area as required by the appellant. The appellant thereafter instituted the present suit against these respondents and their wives, who were also impleaded as respondents. This suit was in terms of Article 1548 of the Civil Code. The prayer of the appellant was that all these respondents should

be called upon to pay twice the amount of earnest money paid to the respondents Vassanta Vitola Camotim and Harinata Ramanata Poi Raiturcar on the ground that they were responsible for failure to perform the contract. The amount claimed was a sum of Rs. 12,000. This item comprised Rs. 5,000 paid as earnest money and, in addition, a sum of Rs. 1,000 stated to have been paid by the appellant to the respondents Vassanta Vitola Camotim and Harinata Ramanata Poi Raiturcar without obtaining any receipt. The suit was resisted by all the respondents. In their written statement it was pleaded that they were not bound to demarcate the area as the agreement does not require them to do so. It was also pleaded that the wives of the respondents Vassanta Vitola Camotim and Harinata Ramanata Poi Raiturcar are not liable for the suit-claim as they are not proper parties to the agreement. The learned Judge after satisfying himself that the Court was competent to decide the suit and

that it did not suffer from any procedural defect and also after considering the pleadings of the parties dismissed the suit by his order dated 14th July, 1965. The finding of the learned Judge was that the wives of the respondents cannot be sued and further the appellant (and not the respondents) was responsible for failure to perform the terms of the agreement. The appellant felt aggrieved by this decision and filed the present appeal.

3. Shri Shinkre, learned counsel for the appellant, attacks the judgment of the learned Comarca Judge on two broad grounds :- (1) that it was premature for the learned Judge to have decided the suit on merits. He should have permitted the parties to lead evidence and thereafter given decision; and (ii) that the wives of the respondents who were impleaded are liable along with their husbands to pay twice the amount of earnest money as claimed by the appellant.

4. I shall first deal with the second ground whether the wives of the respondents could properly be sued. Shri Shinkre invites my attention to paragraph 15 of the plaint wherein it is stated that the wives are proper parties because the earnest money received by their husbands was utilised for their common benefit. In this connection he relies on the provision of Article 19(2) of the Portuguese Civil Procedure Code. Shri Neurencar, learned counsel for the respondents, draws my attention to para unique of Article 1548 of the Portuguese Civil Code. The substance of this paragraph is that a contract for purchase of an immovable property has to be in writing. A wife will not be liable on such a contract to which her husband is a party as a vendor unless she gives consent or intervenes as a vendor. When there is no such consent or intervention then the husband alone as a vendor i

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