1923 Present: De Sampayo A.C.J. and Garvin J.

VALLIAMMA v. LOWE et al.

439-D. C. Chilaw, 6,511.

Husband and wife-Mortgage of immovable property by wife without the written consent of husband-Subsequent ratification by deed- Does ratification render mortgage valid ?-Money bond.

A mortgage of immovable property by a wife without the written, consent of her husband cannot be regularized by subsequent ratification by the husband. But the ratification renders the bond valid and effectual as an ordinary money bond.

THE facts appear from the judgment.

Samarawickreme (with him Arulanandan), for plaintiff, appellant- Section 9 of Ordinance No. 15 of 1876 has not done away with the Roman-Dutch law relating to the marital rights of the husband. A married woman could not enter into any contracts without the assistance of the husband, but the subsequent ratification by him rendered the contract valid. Although the section says that the consent in writing is necessary, there is nothing to prevent the husband from giving it afterwards. Even if the hypothecation of the property is bad, the bond is good as an ordinary money bond, in view of the husband's ratification in writing given subsequently. Counsel cited Voet 23, 2, 42; I. Maasdorp, pp. 43-45; Grotius 1, 5, 23; and Marie Cangany v. Karuppasamy Cangany.[1]

Croos-Da Brera, for defendants, respondents.-Sections 9 and 12 make it clear that the husband's consent should be given prior to or at the time of execution of the deed. The intention of the Legislature was to protect the wife and prevent her being inveigled into some foolish disposition. The consent comes too late when given after the transaction. The plaintiff cannot recover as on a money bond. The husband's ratification does not validate a contract of this nature. There should be proof that the wife benefited by the transaction. Counsel cited Silva v. Egonis,[2] Ponnamal v. Pattaye,[3] Wickremaratne v. Dingiri Banda.[4]

July 2, 1928. GARVIN J.-

This was an action by a mortgagee against the mortgagor, her husband, the second defendant, and a surety, the third defendant. The second defendant filed no answer. The mortgagee's claim

Foot notes:

1(1906)10 N.L.R.79
2 (1901) 2 Br, 362.
3 (1910) 13 N. L. R. 201.
4 (1913) 2 C. A, C. 132.

was, however, resisted by the first defendant, on the ground that inasmuch as the mortgage bond was executed by her without the  written consent of her husband, it was bad in law for non-compliance with the requirements of section 9 of Ordinance No. 15 of 1876. Judgment was entered for the plaintiff against the third defendant, but the plea of the first defendant was upheld, and so far as she was concerned the action was dismissed with costs. From this judgment the plaintiff appeals.

The learned counsel for the appellant rested his case upon a deed bearing No. 1,853 of July 15, 1916, which purports to be a ratification by the husband of the mortgage bond upon which this claim is based and of the debt of Rs. 750 incurred by his wife, and secured by the said bond. He contended, in the first place, that any defect which may have existed in the mortgage bond by reason of the absence at the time of the execution of the written consent has been cured by subsequent ratification. In the next place, he contended that, even if it had been held that subsequent ratification will not cure the defect in the bond so far as it purports to deal with immovable property, still it is nevertheless sufficient to support the claim for money lent on the bond.

The first of these points depends upon the correct interpretation of section 9 of Ordinance No. 15 of 1876. That section after giving a wife a separate estate in her immovable property proceeds as follows: -

" Such woman shall .... have as full power of disposing of and dealing with such property by any lawful act inter vivos with the written consent of her husband, but not otherwise, or b