1934 Present: Dalton and Akbar J J.

FRADD v. FERNANDO.

 75-D. C. Colombo, 46,425.

    Husband and wife-Married woman's contract-Consent of husband-Letter from husband approving of draft agreement to sell-Matrimonial Rights and Inheritance Ordinance, No. 15 of 1876, s. 9.

Where the consent of a husband to the disposition of his wife's property was given in a letter written to the latter's attorney, approving of a draft of the agreement to sell the property,-

Held, that there was a sufficient compliance with the requirements of section 9 of Ordinance No. 15 of 1876.

Per DALTON J.-It is not necessary that the consent should appear on the face of the document making the disposition or that it should be given by a writing notarially executed.

THIS was an action brought by the plaintiff, a married woman, claiming specific performance of an agreement to sell land or in the alternative, damages in the sum of Rs. 15,000. The only question for decision . was whether the agreement was entered into with the written consent of her husband and if not whether it was unenforceable. The learned District Judge held that the consent should appear in the document making the disposition and dismissed the plaintiff's action.

H. V. Perera (with him H. E. Garvin and D. W. Fernando), for plaintiff, appellant.-The attorney of the plaintiff was acting under a power of attorney dated March 11, 1925, when he entered into the agreement of August, 1928, for the sale of the property named Bunty's Nook. That power of attorney had an endorsement by the plaintiff's husband at the foot of it signifying his consent to his wife selling or otherwise disposing of all or any of her property belonging to her or registered in her name. This is sufficient consent for the purposes of the proviso to section 4 of Ordinance No. 18 of 1923, which repeals section 9 of Ordinance No. 15 of 1876. Further, the plaintiff's attorney, while he was negotiating with the defendant for the sale of Bunty's Nook, was in communication with the plaintiff's husband who was in India. The letters P 1 to P 3 show that the draft agreement was submitted to the plaintiff's husband and he approved of it. No particular form of words is necessary for the written consent required by section 9 of Ordinance No. 15 of 1876 (Ponnammal v. Pattaye11 13 N. L. R .201.).

Even assuming that there is no consent by the plaintiff's husband, the effect of the proviso to section 4 of Ordinance No. 18 of 1923 is not to make a disposal without her husband's consent by a woman married before Ordinance No. 18 of 1923 of her property acquired before that Ordinance void, but only voidable at the instance of the husband. Section 4 of Ordinance No. 18 of 1923 repealed section 9 of Ordinance No. 15 of 1876, but provided that the repeal shall not affect any act done, or right or status acquired whilst the repealed sections were in force. The only right reserved to the husband by that proviso is the right to restrain his wife

from alienating her property without his consent. No right is reserved to a third party, and the defendant cannot make use of that proviso to get behind his agreement with the plaintiff's attorney on the ground that the plaintiff's husband had not given his consent.

A. E. Keuneman (with him E. F. N. Gratiaen), for defendant, respondent with regard to the endorsement on the power of attorney of 1925 a general consent in the terms used in that endorsement is not sufficient for the purposes of section 9 of Ordinance No. 15 of 1876. Consent must be express consent in writing by the husband prior to or at any rate contemporaneous with the execution of the particular instrument involved and having relation to that instrument. The consent must have special reference to the particular disposition. (Wickramaratne v. Dingiri Baba1[1 2 C. A. C. 132.] and Ponnammal v. Pattaye2[ 2 13 N. L. R. 806.]-Wood Renton J.'s judgment.)

The letter