Noorul Hatchika V. Noor Hameem Et Al., v

1950 Present  : Wijeyewardene C.J., Jayetileke S.P.J.,
Nagalingam J.,Gratiaen J. and Pulle J.

NOORUL HATCHIKA, Appellant, and NOOR
HAMEEM et al., Respondents

S. C. 355-D. C. Colombo, 4,907.

Agreement-Promise to transfer immovable property in consideration of marriage- Should be executed before notary-Prevention of Frauds Ordinance (Cap. 57) Section 2.

An agreement to transfer immovable property in consideration of marriage is governed by section 2 of the Prevention of Frauds Ordinance and should be embodied in a notarial agreement.

Thamby Lebbe et al. v. Jamaldeen (1937) 39 N. L. R. 73 and Lila Umma v. Majeed (1943) 44 N. L. R. 524 overruled.

APPEAL from a judgment of the District Court, Colombo. This case was referred to a Bench of five Judges under section 51 of the Courts Ordinance.

E. B. Wikramanayake, K.C., with I. Misso and J. B. White, for defendant appellant.-The case for the plaintiffs was that the 2nd defendant 'promised to give as dowry to the 2nd plaintiff the premises bearing assessment No. 17, 17th Lane, Kollupitiya. They asked for specific performance of that agreement or in the alternative for Rs. 30,000 as damages. The agreement did not comply with the requirement of section 2 of Ordinance No. 7 of 1840 as it was not executed before a notary and two witnesses.

The District Judge, following the decisions of this Court in Thamby Lebbe et al. v. Jamaldeen [(1937) 39 N. L. R. 73.] and Lila Umma v. Majeed [(1943) 44 N. L. R. 524.], held that the agreement was valid though not executed in accordance with section 2 of Ordinance No. 7 of 1840. It is submitted that these cases have not been correctly decided. The decision in these cases was that agreements to transfer lands in consideration of marriage were valid even though such agreements were not notarially attested. But there are earlier cases where it was held that such agreements were unenforceable under section 2 of Ordinance No. 7 of 1840. See A. A. Perera et al. v. Abeydeera [(1910) 2 Matara Cases 112.] and Levvai v. Pakeer [(1915) 6 Bal. Notes of Cases 46.]. These two cases were not cited at the argument in Thamby Lebbe et al. v. Jamaldeen (supra) the decision of which was-followed in Lila Umma v. Majeed (supra).

An agreement to convey land as dowry comes clearly within section 2 of Ordinance No. 7 of 1840. Conveyance by way of dowry is a conveyance-for valuable consideration. See Jayasekara v. Wanigaratne [(1909) 12 N. L. R. 364].

F. A. Hayley, K.C., with G. E. S. Perera, M. H. A. Aziz and V. K. Kandasamy, for plaintiffs respondents.-The two earlier cases Perera et al. v. Abeydeera (supra) and Levvai v. Perera (supra) were referred to in

Lila Umma v. Majeed (supra) though not in Thamby Lebbe et al. v. Jamaldeen (supra). The present question whether an agreement to convey land as dowry comes within section 2 of Ordinance No. 7 of 1840 was not considered in the earlier cases.

Thamby Lebbe et al. v. Jamaldeen (supra) has been correctly decided so far as it decides that an agreement to convey land as dowry does not come within section 2 of Ordinance No. 7 of 1840. Section 2 prohibits 3 things : (a) sale, purchase, etc., of land ; (b) promise, bargain, etc. for effecting any of the objects enumerated in (a) ; (c) any contract or agreement for future sale or purchase of land. The dealings referred to in (b) and (c) are clearly distinguishable ; (b) does not refer to- future transactions but (c) does refer to future dealings and covers contracts or .agreements for future sale or purchase only. The word "for" with the present participle means "for the purpose of". See Attorney-General v. Sillem [ (1864) 33 L.J. (Exchequer) 209 at 213.]. An agreement to convey land as dowry does not come under (a) or (b) or (c). Ordinance No. 7 of 1840 is a restrictive Ordinance and therefore must be strictly interpreted. A consideration of the earlier enactments on the subjec

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