Present: Fisher C.J. and Garvin J.

MATHES v. RODRIGO.

 426-D. C. Negombo, 1,705.

    Husband and wife-Joint lease by husband and wife-Payment of rent by lessee to husband, effect of -Is husband authorized agent of wife within the meaning of section 9 of Ordinance No. 15 of 1876 ?

Where a woman married before the Married Women's Property Ordinance of 1923, leased property which belonged to her exclusively, and the husband joined the deed of lease to signify his assent to the lease, and where the lessee, who knew that the wife was solely entitled to the property, paid the rent to the husband and obtained a receipt from him,-

Held, that such payment was not a valid discharge of the obligation to pay rent.

Rosairo v. Abraham 1 followed.

The husband is not the " duly authorized agent " of the wife merely by reason of the fact he is husband or that he joined in the deed of lease.

PLAINTIFF, who is the wife of the third defendant, sued the first and second defendants to recover Rs. 6,000, being a year's rent due on a lease dated February 9, 1926. The plaintiff and the third defendant were married shortly before the Married Women's Property Ordinance of 1923 came into operation. In the lease the plaintiff and the third defendant appear as lessors, while the property is declared to be the property of the plaintiff. After the plaint was filed, but before summons was taken out, the third defendant gave a receipt for the rent sued for, which the defendants pleaded in discharge of the obligation to pay the rent. The learned District Judge held that the receipt given by the husband as co-lessee was a valid discharge and dismissed the plaintiff's action.

Croos- Dabrera, for plaintiff, appellant.

Rajapakse, for first defendant, respondent.

A. L. Jayasuriya, for third defendant, respondent.

May 5, 1928. FISHER C.J.-

In this case the plaintiff, who is the wife of the third defendant, sued the first and second defendants as lessees to recover Rs. 6,000, being a year's rent due on a lease dated February 9, 1926. 1 (1914) 17 N. L. R. 357.

The third defendant was joined as defendant because, according to paragraph 7 of the plaint, he refused to give his consent to the
plaintiff to institute the action. The plaintiff and the third defendant were married shortly before the Married Women's Property Ordinance, No. 18 of 1923, came into force, and it is not contested that by reason of section 9 of the Matrimonial Rights Ordinance, No. 15 of 1876, the written consent of the husband was essential for the validity of the lease.

In the lease the plaintiff and the third defendant figure as " the lessors "; the property is declared to be the plaintiff's property, the rent for the first six months is stated to have been already paid in advance, and the lessees agree to pay the rent for the remaining six months of the first year at the expiration of the first six months, and the rent for the remaining four years quarterly, and " to obtain receipts from the lessors."

In the attestation clause of the lease it is stated that the obligation to pay the rent for the first six months (Rs. 3,000) in advance has been met by the second defendant giving to the plaintiff a promissory note for that amount. The rent for the next six months was also paid to the plaintiff, that is to say, all the rent payable under the lease, which became due prior to the rent sued for was paid, or accounted for, to her, and the learned Judge who tried the case has so found.

After the plaint was filed, but before summons was taken out, the third defendant gave what purports to be a receipt for the rent sued for (document D 2) and the action went to trial on two issues.

(1) Was the sum of Rs. 6,000 sued for due at the time of filing this action ?

(2) Is payment to one of the lessors a due discharge of the obligation to pay the lease money ?

The following passages of his judgment embodies the learned Judge's