1914 Present: Ennis J. and De Sampayo A.J.

CHARISA v. COUDERT.

A spouse married before the coming into operation of Ordinance No. 15 of 1876 may by virtue of section 13 of the Ordinance, notwithstanding the existence of any community of goods between the spouses, make a gift of property in favour of the other spouse. The property so gifted becomes separate property of the donee, subject only to the debts and engagements of the donor.

De Sampayo A.J.-Under the Roman-Dutch law a gift by one spouse to the other is not absolutely void.

THE facts appear from the judgment.

A. St. V. Jayewardene, for appellant.

Bawa, K.C. (with him Samarawickreme), for respondent.

July 17, 1914. Ennis J.-

The land sought to be partitioned in this action originally belonged to Amanduwa and Subi, who were married in community of property before the passing of the Ordinance No. 15 of 1876. In 1888 Amanduwa executed a deed of gift of the land in favour of Subi. In 1899 Subi gifted the northern half to Gavaria. Subi had three children, Bellinda, Gunaya, and Lapi. Bellinda married one Sima Veda, and died in 1900, leaving two children, the plaintiffs, who are minors. In 1906 Gavaria purchased from Sima Veda, Gunaya, and Lapi the southern half of the land. Gavaria's interest in the land passed by a series of deeds to the defendant. The plaintiffs appear by Subi, their next friend.

The first question to be decided is whether the gift of 1888 by Amanduwa passed the property to Subi. This turns on the construction to be placed on section 13 of Ordinance No. 15 of 1876. Section 5 of that Ordinance provides that the matrimonial rights of a husband and wife married before the proclamation of the Ordinance shall, except as in the Ordinance otherwise expressly provided, be governed by such law as would have been applicable thereto if the Ordinance had not been passed. Is section 13 an express provision of the Ordinance which would enable the husband

to make a good and valid gift to his wife so as to vest property in her ? In my opinion it is. Section 13 enacts that it shall be lawful for a husband or wife married before the proclamation of the Ordinance, notwithstanding the relation of marriage and notwithstanding the existence of any community of goods between them, to make, during the marriage, a gift of property in favour of the other, and the section further provides that property so gifted shall be subject to the debts and engagements of each spouse as if the gift had not been made. The words of the section can be read, it seems to me, only as expressly providing that the gift may be so made as to vest the property in the wife, notwithstanding the existence of community of property between them. To read it in any other way would make the proviso unnecessary, and would give the section the effect only of permitting the husband and wife " to amuse themselves by writing deeds of gift," as my brother De Sampayo has expressed it. It is urged that an examination of sections 9 and 10 shows that where property vests in the wife for her separate use express provision is made giving her a power of disposition. It seems to me that the absence of a provision in section 13, giving a power of disposal, has the effect only of leaving that question as it was before the passing of the Ordinance, viz., that the wife could dispose of the property during her husband's lifetime only with the consent of her husband, and that it does not affect the vesting of the property in the wife. This being so, I am of opinion that the land to be partitioned in this case passed to Subi.

There is not much oral evidence of possession. Gavaria h