Marie Cangany V. Karuppasamy Cangany

[ Full Bench.]

Present : Sir Joseph T. Hutchinson, Chief Justice, Mr. Justice
Wendt, and Mr. Justice Wood Renton.

MARIE CANGANY v. KARUPPASAMY CANGANY.

D. C, Kandy, 16,483.

Mortgage by wife without written consent of husband-Presence of husband at execution and subsequent recognition of its validity by him- Invalidity-Estoppel-Obligation to repay-Ordinance No. 15 of 1876, s. 9-Evidence Ordinance (14 of 1895), s. 115.

Where the defendant was present at the execution of a mortgage bond by his wife, and by his subsequent conduct recognized its validity, and where, after the death of his wife, he was sued as administrator of her estate on the said bond, and he pleaded that it was invalid as it was executed without his written consent,-

Held, that the plea was good and that the, defendant, who was sued as administrator, was not estopped, by conduct from questioning the validity of the bond.

Where it appeared that the money borrowed by the wife went in payment of a prior mortgage executed by the wife with the knowledge and consent of the husband,-

Held, that the defendant (husband), as his wife's administrator, was liable to repay the said sum, as her estate was benefited by the transaction.

Semble (per WOOD RENTON J.).- The written consent of the husband must be previous to the execution of the mortgage, as the words " but not otherwise " appear to invest it with the character of a condition precedent.

THE facts sufficiently appear in the following judgment of the District Judge (J. EL de Saram, Esq.): -

" This is an action on a mortgage executed by one Sundaram on the 2nd September, 1899, in favour of the plaintiff for Rs.4,500

payable with interest. The claim is for Rs. 6,157.66, which the defendant admits is due.

" Sundaram was a married woman-the wife of the defendant-

at the date of mortgage. It is proved they were married according to Tamil custom in the year 1880, prior to the execution of the mortgage. She is dead. The defendant is the administrator of her estate. The action is contested on the ground that the mortgage is void, the defendant not having given his written consent to it. The objection is founded on the enactment contained in section 9 of ' The Matrimonial Eights and Inheritance Ordinance, 1876,' which is that any woman married after the proclamation of that Ordinance shall, subject and without prejudice to the trusts of any will or settlement affecting any immovable property to which she may be entitled at the time of her marriage, or may become entitled during her marriage, have as full power of disposing of and dealing with such property by any lawful act inter vivos with the written consent of her husband, but not otherwise, or by last will without such consent, as if she were married.

The property mortgaged was purchased by Sundaram on the 5th July, 1890. The transfer, I understand, is in her favour. The defendant admits the money lent by the plaintiff went in payment of a prior mortgage executed by his wife, with his knowledge and in his presence, in favour of one Mayappa Chetty.

" After the mortgage to the plaintiff tea leaf from the property mortgaged was sold to the superintendent of a neighbouring estate, who, at the defendant's request, sent the plaintiff cheques for the amounts due, and the plaintiff appropriated the proceeds in repayment of advances he made Sundaram, also with defendant's consent, for the upkeep of the property and in payment of interest due on the mortgage. It has been proved, though denied by the defendant, that this mode of payment continued after his wife's death.

" Under these circumstances, it would have been honest for the defendant to have consented to judgment in favour of the plaintiff.

" It was conceded by Mr. Beven, appearing for the plaintiff, that the mortgage is invalid for want of the defendant's written consent, but he argued that, as the defendant was pr

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