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

SOYSA v. SOYSA.

Deed of separation-Payment of annuity to wife-Dissolution of marriage by Court-Separation deed how far affected-Annuity by husband to wife is separate property of wife - Agreement for voluntary separation not illegal under the Roman-Dutch law-Appeal to the Privy Council.

A dissolution of the marriage does not of itself affect the provisions in a separation deed as to a settlement of property or the liability of the husband on a covenant to pay an annuity to the wife by way of a permanent provision, though such provisions may be varied by the Court in pursuance of its jurisdiction in that behalf.

An annuity granted by a husband to his wife belongs to the separate estate of the wife, and does not, as being movable property, vest in the husband.

Under the Roman-Dutch law an agreement for voluntary separation and a provision as to property are not only not illegal, but valid as between the parties themselves, and are only ineffectual for certain purposes.

De Sampayo A. J. -" The provision for the payment of an annuity by the defendant to the plaintiff is good and valid under the Roman Dutch law, even if that law applied on this point to the case of a marriage not in community, but under Ordinance No. 15 of 1876, of which I have serious doubts. "

THE facts are fully set out in the judgment.

Bawa, K. C., and A. St. V. Jayewardene, for plaintiff.

F. M. de Saram (with Elliott and Hayley), for respondent.

August 8, 1914. De Sampayo A. J. -

The plaintiff was the wife of the defendant, having been married to him in London on September 22, 1903. Certain differences having arisen between them they lived apart since December, 1911, and their marriage was dissolved by final decree of divorce on January 15, 1913, in the action No. 34, 307 of the District Court of Colombo brought by the plaintiff against the defendant. In the meantime the parties entered into the deed No. 588 dated March 25, 1912, whereby, after reciting that they were living separate and apart from each other on account of their differences, that by an ante-nuptial agreement the defendant had settled on certain trustees

for the benefit of the plaintiff a policy of insurance for £5, 000, and had also gifted to her on February 17, 1911, the Keenekelle estate of the value of Rs. 250, 000, and in July, 1911, a sum of £4, 000 in cash, and that it had been agreed that the defendant should, " in addition to the provision already made as hereinbefore set forth, make further provision by way of annuity (for the plaintiff) upon terms and conditions hereinafter expressed, " it was witnessed that, " in pursuance of the said agreement and in consideration of the premises, " the defendant covenanted to pay to the plaintiff during her life the annual sum of Rs. 7, 200 in monthly instalments of Rs. 600. Under this agreement the defendant duly paid to the plaintiff the monthly instalments which fell due both before and after the decree of divorce, but he failed to do so since August, 1913, and this action is brought for the recovery of Rs. 600 for the instalment due for August, 1918.

The claim is resisted on various grounds, which the District Judge in an able and exhaustive judgment has decided against the defendant and which are again pressed before us in appeal.

It is, in the first place, objected that the plaintiff, not having made a claim for alimony or for a settlement of property in the divorce action, and no order having been made under section 615 and succeeding sections of the Civil Procedure Code, the plaintiff is precluded by the operation of section 34 from maintaining this action on the agreement. The deed expressly provided that the plaintiff should, out of the provision made for her before and by the deed, maintain herself, and should not take any action or proceedings against the defendant for the re