Ponnammal V. Pattaye Et Al .,

[FULL BENCH.]               June30,1910

Present : The Hon. Sir Joseph T. Hutchinson, Chief Justice,
Mr. Justice Middleton, and Mr. Justice
Wood Renton..

PONNAMMAL v. PATTAYE et al.

D. C, Kandy, 18,162.

Sale of immovable property by wife-Deed signed by husband-No express words signifying husband's consent-Ordinance No. 15 of 1876, s. 9.

A deed of conveyance of immovable property executed by a married woman was also signed by the husband (with a mark) under the signature of the two witnesses. The Supreme Court (Hutchinson C.J. and Middleton J., Wood Renton J. dissentiente) considered that the husband had signified his consent in writing to the transfer within the meaning of section 9 of Ordinance No. 15 of 1876.

HUTCHINSON C.J.-It is not absolutely necessary to add the words " I consent," or any other words to that effect.

WOOD RENTON J.-Section 9 is satisfied by consent in writing. It should be such a consent as will leave no need or room for oral evidence, or conflicting inferences, as to its meaning when once the signature or mark of the husband has been duly proved.

THE facts of this case are fully set out in the judgment of Hutchinson 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 not sufficient to satisfy the requirements of section 9 of Ordinance No. 15 of 1876 (see D. C, Kandy, 7,977 1 Section 9 would not be satisfied even if the husband had signed below the name of the wife. There ought to be written evidence of consent; oral evidence cannot be admitted to prove that the husband intended to give his consent by signing the deed. The fact that a person signed as a witness does not necessarily show that he knew the contents of the deed. The provisions of section 12 indicate that the consent must be of a formal character. Counsel also referred to Marie Kangany v. Karuppasamy Kangany,2 Jayesinghe v. Perera,3 Beling v. Vethecan.4 Bawa, for the plaintiff, respondent.-The husband must have known the contents of the deed, as, under the Notaries Ordinance, the deed had to be read and explained to the wife-who was an illiterate person-in the presence of the witnesses. The unreported Kandy case may be distinguished from the present. There the husband was one of the two witnesses, and his signature was therelore necessary for the validity of the deed. Here the husband signs his

Foot Notes:

1 S. C. Min., Oct. 24, 1895.
2 (1908) 10 N. L. R. 79.
3 (1903) 9 N. L. R. 62
4 (1903) 1 A. C. R. 1.

name after the two witnesses; his signature was not necessary for are validity of the deed; the reasonable inference is that the husband intended by his act to signify his consent as required by section 9 of Ordinance No. 15 of 1876.

Cur. adv. vult.

June 30, 1910. HUTCHINSON C.J.-

The plaintiff sued in this action the first defendant and her husband, the second defendant, for declaration of her title to three pieces of land and to eject the defendants therefrom. She alleged that the first defendant, being the owner of the lands, by three deeds, two of them dated May 19, 1900, and the third May 28, 1900, sold and transferred the lands to her, but is in wrongful and forcible possession of them. They said in their answer that the deeds were executed by the first defendant without the written consent of her husband, the second defendant, and are therefore invalid in law; that the first defendant only received Rs. 250 as consideration 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 second 1 defendant, by deed dated October 5, 1900, sold and transferred the lands to Kana Rama Arunasalem Chetty, who is now in possession. Thereupon, on the plaintiff's application, Arunasalem Chetty was

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