Appuhamy V. Appuhamy Et Al.,

Present: Lascelles C.J. and Wood Renton J.

APPUHAMY v. APPUHAMY et al.

138-D. C. Colombo, 32,008.

Money paid under mistake of law-Action to recover-Married woman- Equity-Condictio indebiti.

Where money is paid by a married woman in discharge of an obligation concluded by her without her husband's consent the husband is allowed to recover the money, unless it was paid by his wife with full knowledge of her rights and that she was not obliged to make it.

" Under the Roman-Dutch law there is a conflict of opinion whether money paid under a mistake of law is recoverable, but the tendency in South Africa appears to be to hold that money paid under a mistake of law is not recoverable unless there are special circumstances; that, in other words, there must be a natural equity on the side of him who claims the condictio indebiti. But the case of a married woman paying money in discharge of an obligation concluded by her without her husband's consent appears to stand on a different footing."

THE facts appear from the judgment of Lascelles C.J.

E. W. Jayewardene, for the plaintiff, appellant.-The gift to third defendant is void as against the plaintiff's mortgage bond, and so the possession of the third and fourth defendants would in law be an adiation of the inheritance. The third and fourth defendants are liable as heirs in possession. (3 N. L. R. 79; 1 Browne 117.)

The second defendant did not file answer, and judgment should have been entered against him.

The order to refund Rs. 580 to third defendant on the ground that she had paid under a mistake is wrong. Money paid under a mistake is irrecoverable. Bogaars v. Van Buren.1

The defendants must show that it is inequitable that plaintiff should retain this money. The equities are on the side of the plaintiff. Moses v. Macferlan.2

In Roman-Dutch law natural equity must be on the side of him who claims the condictio indebiti. (Morice 226.)

The third defendant knew her rights and has deceived the mortgagee. Payments made with full knowledge as to her rights by a married woman are not recoverable. (3 Maasdorp 392.)

1 (1882) Wendt 209.                                                                                                                                        2 2 Burr. 1009.

Samarawickreme (with him E. W. Perera), for the defendants, respondents.- As against the deceased mortgagor the third defendant's deed of gift was good, and her possession after the mortgagor's death was on her own behalf and does not amount to an adiation.

The third defendant was ignorant of her rights, that she was not bound to pay any money; the money paid really belonged to her husband (Ordinance No. 15 of 1876, section 19). It is equitable that her husband's money should be refunded to him. She was ignorant of her rights when she paid the money.

Cur. adv. vult.

July 5, 1912. Lascelles C.J.-

The facts which gave rise to the present appeal are the following. By deed dated June 26, 1887, one Lorensu transferred the land in question to the third and fourth defendants. This deed was not registered.

By the mortgage bond dated March 11, 1904, and duly registered, Lorensu mortgaged the land to Don Vansel Appu, the second and third defendants joining in the personal obligation created by the bond. Both Lorensu and Don Vansel are now dead, and the plaintiff, as the executor of the will of Don Vansel Appu, now seeks to enforce the mortgage against Lorensu's widow and children and the fourth defendant, who is the husband of the third defendant.

The plaintiff has not taken steps under section 642 of. the Civil Procedure Code to have an administrator appointed of Lorensu's estate, but sues the defendants to realize the mortgage, on the footing that they have adiated Lorensu's inheritance. He gives them credit for Rs. 390 paid on account, and seeks to recover the balance with interest. The plaintiff subsequently admitted that Rs. 580 had been

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