1914 Present: Wood Renton A. C. J. and De Sampayo A. J.

ROSAIRO v. ABRAHAM.

236-D. C. Puttalam, 2, 428.

Married woman-Rents of immovable property-Separate property.

Bent of immovable property to which a married woman is entitled is her separate property, and she is entitled to accept payment of any such rent and give a valid receipt for it.

THE facts are set out in the judgment.

G. Koch, for first defendant, appellant. -Payment of rent due by the lessee to one of two joint lessors operates as a complete discharge and the fact that the lessor giving the discharge is the wife of the co-lessor should make no difference. The plaintiff can sue only for his share of the rent due when his joint lessor refuses to join him. (1 N. L. R. 206, 7 N. L. R. 16. )

In any case the payment operates as a discharge of the lessee's liability to the extent of the wife's interests. The learned District Judge is in error in applying section 19 of Ordinance No. 15 of 1876 to the case. Although rent, being money, may be treated as movable property, section 9 empowers the wife to deal with the rents and profits of the immovable property independently of the husband.

Similarly, in regard to damages claimed by the plaintiff, he can only recover to the extent of his interest in the property leased, and as the wife makes no claim for damages in respect of her portion of the land, it is not open to the husband to recover any damages accruing in respect of the wife's share of the land leased. The case must be treated as one which is governed by the Matrimonial Rights Ordinance, No. 15 of 1876, for if the plaintiff wished to bring it within the operation of the Roman-Dutch law of community, the burden was on him to prove a marriage in community.

First defendant should not have been condemned to pay the costs of the action. The substantial claim was for a cancellation, which plaintiff has failed to obtain.

E. W. Jayewardene, for respondent. -The District Judge was wrong in holding that the payment was made. Assuming the payment, it did not discharge the lessee either wholly or in part, as rent, being money, vested absolutely in the husband according to section 9 of Ordinance No. 15 of 1876.

July 30, 1914. Wood Renton A. C. J. -

This is an interesting, but, in my opinion, it is not really a difficult, case. The plaintiff, who is the respondent, sued the first defendant, the appellant, claiming rent, and damages for breach of covenant, under an indenture of lease. The lease was granted to the first defendant jointly by the plaintiff and his wife, who has been made the second defendant to the action, for she refused to be joined as a plaintiff. The rent claimed amounted to Rs. 900. The first defendant alleged that he had paid the whole rent to the second defendant, one of the joint lessors, and that the plaintiff had, therefore, no further claim against him in respect of the debt. The damages were denied. The case went to trial upon six issues, of which the first raised the question whether the rent had, in fact, been paid by the first defendant to the plaintiff. The second was: " Has the plaintiff alone the right to demand the whole amount of the rent due under the lease ?" The third and fourth concerned themselves with the alleged breach of covenant and the claim for damages. The fifth raised the question whether the first plaintiff was entitled to a cancellation of the lease. And the sixth related to the point as to whether the payment, if made, by the first defendant to the second discharged him from his liability for rent. The learned District Judge heard evidence on both sides, and came to the following conclusions. He held on the facts that the first defendant had paid the rent, as he alleged, to the second; that there had been a breach of covenant which entitled the plaintiff to damages, and that the plaintiff was not entitled to have the deed of lease cancelled. He held on the law that the payment