Poronchihamy V. Davithamy.

Present: Wood Renton J. and Grenier J.   Dec.5,1910

PORONCHIHAMY v. DAVITHAMY.

303- D. C. Tangalla, 1,074.

Conveyance of land by wife in favour of husband-Written consent of husband is not necessary-Ordinance No. 15 of 1876, ss. 9 and 13- Prescription.

The written consent of the husband is not necessary to a deed of conveyance of immovable property by the wife in her husband's favour.

THE facts are set out in the judgment of Wood Renton J.

H. A. Jayewardene, for the defendant, appellant. Bartholomeusz (with him Vytialingam), for plaintiff, respondent.

Cur. adv. vult.

December 5, 1910. Wood Renton J.-

The respondent is the wife of the appellant, and she brings this action to obtain cancellation of a deed which she alleges that the appellant had fraudulently induced her to execute. The deed deals with a 5/48th share of the land described in the plaint. The land originally belonged to the appellant's mother, and he derived title to it from her partly by inheritance and partly by deed. By deed No. 108 of December 20, 1885, the appellant transferred the land to Babun Appu, who sold it to the respondent on deed 5,406 of August 20, 1888. The deed by the respondent in favour of the appellant is dated August 25, 1906, and it purports to be an out-and-out transfer of the land in consideration of the payment by the appellant to the respondent of a sum of Rs. 500. The appellant alleges in his answer, and he said in his evidence, that this consideration was actually paid. No consideration, however, passed in the presence of the notary. The deed by the respondent in favour of the appellant has not been signed by the appellant. There is nothing on the face of the deed to show that he is the husband of the grantor, and it is admitted that neither in the deed itself, nor in any other writing, has he given an express assent to his wife's disposition of her property.

It was argued in the Court below that the present action was not maintainable, inasmuch as it had not been brought within three years from the accrual of the cause of action, as required by section 11 of Ordinance No. 22 of 1871. The deed was executed on August

23, 1906, and the action was not instituted till June 23, 1910. The learned District Judge over-ruled this point, on the ground that the respondent's cause of action accrued only when it became clear that the probable effect of the deed would be to defraud her, and that this had taken place when the appellant mortgaged the property by deed No. 1,566 dated November 1, 1906. On October 16, 1909, the respondent, in D. C. Tangalla, 1,025, applied under section 16 of Ordinance No. 15 of 1876 to have her deed in the appellant's favour cancelled. The District Judge held that she should bring a regular action to set aside the deed, and that judgment was affirmed by the Supreme Court in appeal. Under these circumstances he held that the present action was not barred by prescription. This question was scarcely touched upon in the argument before us in appeal, but I see no reason to differ from the view that the District Judge has taken of it. The District Judge held, however, purporting to follow the decision of the Supreme Court in Ponnamal v. Pattaye that it was imperative that the husband should at least signify in writing his assent to any deed executed by his wife which had the effect of alienating her immovable property; and as in the present case such written assent was admittedly wanting, the deed, in his opinion, was void, and accordingly he gave judgment in the respondent's favour, and ordered the appellant to bring the deed into Court for cancellation.

In Ponnamal v. Pattaye1[(1910) 13 N. L. R. 201.] the wife's deed was in favour of a third party. That case does not, therefore, decide the question whether the husband's written consent is necessary to a deed by the wife in her husband's favour. No authority was cited to us on this point in the argument, and I h

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