Richard Garth, C.J.
1. The question which is submitted to us by this reference is, whether Section 8 of Act III of 1874 extends to separate property of a married woman, which is subject to a restraint upon anticipation.
2. It seems to me that the view which has been taken of this point by the learned Judge of the Small Cause Court is perfectly correct; and that the reasoning by which he arrives at his conclusion is quite satisfactory.
3. Mrs. Stuart, the lady against whom this suit is brought, had a sum of Rs. 50,000 settled upon her by her father and placed in the hands of trustees for her benefit. The interest was to be paid to her from time to time by the trustees, and she was only to have a power of disposing of the property by will.
4. Mrs. Stuart, it appears, carried on a sort of millinery business on her own account, and for the purposes of that business borrowed money of the plaintiff. It is found that he lent the money upon the credit of her separate estate; and the question is, whether having regard to Section 8 of the Married Woman's Property Act (III of 1874), the defendant's separate property is liable for the debt.
5. Mr. Pugh contended that, if this were the effect of Section 8, it would take away the power now allowed by law of settling money upon a married woman with a restraint upon alienation; and he referred us to Section 10 of the 'Transfer of Property Act' to show that this was not the intention of the Legislature. But it is clear that the Married Woman's Property Act was not intended to alter the rule in that respect. The only question is, whether Sections 8 and 9 of that Act were not intended to introduce a modification of the rule in certain cases.
6. Now we have direct authority in the English Courts, as to the proper meaning of Section 12 of the English 'Married Woman's Property Act, 1879,' which is very similar in its terms to Section 9 of the Indian Act; and I think we May take Section 9[1] as a guide, in construing Section 8, with which we are now dealing. The authority to which I allude is the case of Sanger v. Sanger L.B. 11 Eq. 470 which, so far as I am aware, has never been questioned.
7. In that case Mr. Sanger gave his wife by will an annuity of 300 for her separate use, without power of anticipation, and after his death a fund was set apart, out of his property, to answer this annuity.
8. After the passing of the English Married Woman's Property Act, 1870, a creditor brought an action against Mrs. Sanger to recover a debt which had been incurred by her after the death of the testator; and on the 19th of January 1871 judgment was entered up by the plaintiff in that suit for 346.
9. On the same 19th January, but earlier in the day, Mrs. Sanger intermarried with William Hutchinson; and the question then arose, how far Section 12 of the Married Woman's Property Act, 1870, protected the settled property, during the marriage with William Hutchinson, from the judgment-debt thus incurred by Mrs. Hutchinson.
10. Now by Section 12 her separate property was made liable for debts incurred by her before her marriage in the same way as it would have been if she had continued unmarried, which provision is substantially the same as that contained in Section 9 of the Indian Married Woman's Property Act of 1874.
11. An application was then made to Mr. Justice Lush to charge Mrs. Hutchinson's separate property (the fund which had been set apart to answer the annuity) with the payment of the judgment-debt of 846; and Mr. Justice Lush made an order accordingly.
12. An application was then made to the Master of the Bolls to protect the fund against the charging order, upon the ground that, as it was settled to Mrs. Hutchinson's separate use without power of anticipation, it could not be taken from her.
13. But the Master of the Bolls was clearly of opinion that the charging order was right; and that, although Mrs. Hutchinson was married, her property was answerable for the payment of any debts which she had incurred before marriage, precisely as if she had continued unmarried.
14. Now then let us see what is the effect of Section 8 of the Indian Act. It says that, if a married woman possesses separate property, and if any person enters into a contract with her on the faith that her obligations arising out of such contract will be satisfied out of such property, then such person shall be entitled to sue her, and, to the extent of her separate property, to recover against her whatever he might have recovered in such suit had she been unmarried at the date of the contract and continued unmarried at the date of the execution of the decree.
15. Now it seems to me impossible for the purposes of our present question) to distinguish the terms of that section from those of Section 9.
16. Section 9 says that, to the extent of her separate property, a married woman is liable to satisfy all debts contracted before her marriage, as if she had continued unmarried. Section 8 says that she is liable to satisfy out of her separate property any debt which she has incurred upon the faith of the creditor being paid out of that property.
17. The creditor, tinder such circumstances, is to be entitled to recover against her what he might have recovered had she been unmarried at the date of the contract.
18. Now it is conceded that, if she had been unmarried, and the property had been settled upon her as it is now, it might have been taken in execution in payment of the debt; and the section says that, having incurred the debt after her marriage, the creditor is to be entitled to recover what he might have recovered if she had remained unmarried.
19. It seems to me, therefore, that the only reasonable construction of Section 8 is that which has been put upon it by the Court below.
20. I do not feel any difficulty with regard to the question of domicile which was raised by Mr. Pugh; because it seems to me that the Act of 1874 applied (and I do not see any reason why it should not apply) to persons having an English, as well as to those having an Indian domicile. In fact I consider that this point was virtually decided here some years ago in the case of Allumuddy v. Braham I.L.R. 4 Cal. 140.
21. I think, therefore, that we should answer the question referred to us in the affirmative. We make no order as to costs.
Wilson, J.
22. I am entirely of the same opinion. With regard to the question of domicile I have nothing to add. With regard to the main question which has been argued before us, it appears to me that the words of Section 8, by themselves, are clear and definite. It appears to me clear that the separate property of a married woman means all her separate property; and it appears to me clear also that, if a married woman possesses separate property and any person enters into a contract with her with reference to such property, or on the faith that her obligation arising out of such contract will be satisfied out of her separate property, then, in order to ascertain how far her property is liable under the section, we must look at the last words of it, which say that it is liable to the same extent as if she had been unmarried at the date of the contract and continued unmarried at the execution of the decree; so that in each case we must treat the matter as if, instead of being a married woman, she had become a widow before each of those dates.
23. That seems the plain and natural construction of the section, but we have also ample authority to the same effect.
24. In the first place I can see no distinction, for this purpose, between the words of Section 8 and of Section 9, nor between the words of Section 9 of this Act and the words of Section 12 of the English Act 32 and 33 Vic, c. 93, and the words of Section 12 of the English Act were considered by Lord Eomilly and apparently also by Mr. Justice Lush in the case which has been referred to by the Court below.
25. Then we have authority on the same subject in this Court in the case of Peters v. Manuk. That was a suit in which it was sought to charge the property of a married woman settled to her separate use without power of anticipation. It was held by Mr. Justice Pontifex in that case that the property could not be charged under the Succession Act. The learned Judge expressed his opinion that it was as essential then, i.e., at the time he was speaking of, as it ever was, that a married woman should have the protection of the clause restraining alienation. Apparently, the learned Judge had not had his attention drawn, and there was no reason why it should have been, to the Act we are now considering until towards the close of his judgment; and he merely pointed out that it did not apply.
26. The Court of Appeal dealt with the case again. They agreed with Mr. Justioe Pontifex that the Succession Act had not the effect of overriding the clause restraining' alienation; but they went on deliberately to consider the effect of the section which is now before us, and the Chief Justice expresses a perfectly clear and distinct opinion that the effect of it was that which the learned Judge of the Small Cause Court has held it to be.
27. At first sight it may seem, as if that were not an actual decision, but I am disposed to think that it is an actual decision, and for this reason.
28. If Section 8 has not the effect which we attribute to it, what effect has it? All the separate property of a married woman not subject to restraint against anticipation could, without the aid of Section 8, be made liable to satisfy contracts entered into by her with respect to that property. What then is the effect of Section 8.
29. It was contended that it is at most a section affecting the mode of procedure without making her property specifically liable. But what did the Court of Appeal in the case to which I have referred say on this subject. They held that the Act was not retrospective. Couch, C.J., said that 'if it could be considered to be a law of procedure only, it might be held to have a retrospective effect.' But it is not a law of procedure. It is a law by which an effect is given to a contract with a married woman which it had not before.
30. That is an express decision that this is not a section of procedure but that it gives a substantive right.
31. Then we were asked to hold that whatever may have been the law before the Transfer of Property Act it is different now, and we were referred to Section 10 of that Act as bearing out that contention.
32. Now Section 10 says that, where property is given absolutely, but subject to a condition or limitation in restraint on alienation, the gift shall be good, and the condition or limitation void, and it is only by way of exception to that general rate that the case of a married woman is introduced. It is said that property may be transferred to or for the benefit of a woman, so that she shall not have power during her marriage to transfer or charge the same or her beneficial interest therein. This merely excepts from the general rule of the section this particular case. It does not give to a restraint on alienation any greater force than it had before, but merely preserves to it the effect it had previously. It therefore leaves the Married Woman's Property Act of 1874 and the decisions upon it untouched.
[1]
[Section 9: A husband married after the thirty-first day of December 1865 shall not by
Husband not liable for reason only of such marriage be liable to the debts of his wife
wife's antinaptial debts. contracted before marriage, but the wife shall be liable to be
sued for, and shall, to the extend of her separate property be
liable to satisfy such debts as if she had continued unmarried:
Provided that nothing contained in this section shall affect any suit instituted
before the passing of this Act nor invalidate any contract into
Proviso. which a husband may, before the passing of this Act, have en
tered in consideration of his wife's antinuptial debts.