1927 Present: Grant J. and Maartensz A.J.

NONA v. MANUEL et al.

63-D. C. (Inty.) Galle, 24,101.

Married Women's Property Ordinance-Action for declaration of title to land-Married after the Ordinance-Land bought before-Ordinance No. 18 of 1923, ss. 4 and 5.

A woman married before July 1, 1924, the date at which the Married Women's Property Ordinance, No. 18 of 1923, came into operation, sued for a declaration of title to a land bought by her before July 1, 1924,

Held that she was entitled to maintain the action without joining her husband.

PLAINTIFF, a woman married before the Married Women's Property Ordinance, 1923, came into operation, sued the defendants without the assistance of her husband for declaration of title to a land to which she claimed title under a deed executed in her favour on June 11, 1924. The cause of action alleged was an ouster by the defendants in August, 1925. The defendants took the objection that the action was not properly constituted as the plaintiff's husband had not been made a party. The learned District Judge upheld the objection and dismissed the plaintiff's action.

Weeraratne, for appellant.-Section 5 of Ordinance No. 19 of 1928 empowers a woman in the position of the plaintiff to sue, as if she were a feme sole. The District Judge's view is that the proviso to section 4 conserves the necessity to join the husband. The proviso does not have that effect. Section 4 repeals section 5-19 of Ordinance No. 15 of 1876, which do not deal with this question. The proviso says that the repeal does not affect the right or liability of a woman married before the commencement of the Ordinance to sue or be sued under the provision of the repealed sections. The disability of the wife arose not from the repealed sections but from the common law. The cause of action arose after Ordinance No. 19 of 1923 came into operation. The cause of action is the ouster. The fact that the land was purchased before the coming into operation of the Ordinance does not matter. In Wildon v. Wensloo,1 [13 Q. B. D. 784.]it was held that in an action for tort committed before the Married Women's Property Act of 1882 came into operation the husband of the married woman need not be joined as a party when the action was after the coming into operation of the statute. The Act of 1882 contains words identical with section 5 (2).

H. V. Perera (with him D. E. Wijewardene), for defendants, respondent.-The disability, it is true, did not arise under sections 5-19 of Ordinance No. 15 of 1876. It was a disability created by the Roman-Dutch law. But the proviso to section 4 says that the repeal shall not affect any rights or status acquired whilst such sections were in force-and not merely under those sections. The marriage of the plaintiff having taken place after 1876, she acquired the status of a married woman with the rights, obligations, and disabilities involved in such status while those sections were in force, and they are therefore unaffected by the repeal.

July 12, 1927. LYALL GRANT J.-

The question for decision is whether a married woman can, in the circumstances of this case, sue without her husband as co-plaintiff. The facts, so far they are relevant, as are follows: -

The plaintiff is a married woman living apart from her husband. She was married after 1877, the date at which the Married Women's Eight of Inheritance Ordinance came into force, and before 1924 when the Married Women's Property Ordinance of 1923 came into force. The action is one for declaration of title to a certain piece of land and for ejectment of the defendants therefrom. The plaintiff also prays to be put in quiet possession, for damages, and for costs.

Her plaint sets forth that the land was conveyed to her by a bill of sale dated June 11, 1924. She alleges that the defendants who have no right of title to the land deny and dispute the plaintiff's title to the same and are i