DALTON S.P.J.—Wijeytunge v. Attapattu.
1933Present: Dalton S.P. J. and Drieberg J.WUEYTUNGE v. ATTAPATTU.95—D. C. Colombo, 36,818.
Gifts in contemplation of marriage—Action to recover—Motive must bepromise of marriage—Gifts made to win favour for suit not recoverable.In an action to recover a gift made in contemplation of marriage theplaintiff must prove that the motive for the gift was defendant's promiseof marriage or that the gift was conditional on marriage taking place.
Gifts made with the intention of winning favour for plaintiff’s suitin defendant’s sight are not recoverable.
^/^PPEAL from a judgment of the District Judge of Colombo.
H. V. Perera (with him Ameresinghe), for plaintiff, appellant.
De Zoysa, K.C. (with him N. E. Weerasooria), for defendant,respondent.
June 1, 1933. Dalton S.P.J.—
The plaintiff (appellant) brought this action against the defendant(respondent) to recover from her certain gifts made by him to her, andcertain money contributions made by him towards the construction andcompletion and repair to a building on land belonging to the defendant,such gifts and contributions having been made in contemplation of amarriage between the parties, or in the alternative to pay their value setout at Rs. 3,569.43. It is alleged that defendant promised to marry theplaintiff about the beginning of the year 1929.
The parties are the children of two sisters, plaintiff being a bachelor45 years of age at the time of the action, and the defendant a widow 35yekrs of age, with children. Prior to defendant’s first marriage there isevidence to show that plaintiff had wished to marry her, having cherishedan affection for her from his youth, but her father objected to his suit,apparently for the reason that according to Sinhalese custom, being thechildren of two sisters, they would not ordinarily be allowed to marry.
The learned trial Judge has held that the phrase “ in contemplation ofmarriage ” must relate to a marriage that has in fact been arrangedbetween the parties, that the foundation of such an action must be apromise of marriage, and he expresses the opinion that that promise canonly be proved by a writing, in view of the provisions of section 21 (1)of the Marriage Registration Ordinance, 1907, the proviso to which enactsthat no action shall lie for the recovery of damages for breach of promiseof marriage, unless such promise of marriage shall have been made inwriting. In case, however, he should be wrong on this last point, in thiscase he has held that there is no evidence at all to justify a finding thatdefendant had ever promised to marry plaintiff. I have considerabledoubt as to whether the proviso referred to applies to such a case as this,but in view of the finding of the trial Judge that in fact there was nopromise written or otherwise, with which finding I am not prepared todisagree, it is not necessary to consider this last point further. It is
DALTON S.P.J.—Wijeytunge v. Attapattu.
possible no doubt to infer a promise to marry to some extent from theconduct of the parties, but all the attendant circumstances and corre-spondence that passed have, it seems to me, been duly considered by thelearned trial Judge, and he has come to the conclusion that no promisehas been proved. That, in my opinion, is a finding to which on theevidence he was entitled to come.
Mr. Perera then urged for the appellant that even if the promise ofdefendant be not proved, nevertheless provided it be shown that themarriage was in the contemplation of one party, here the plaintiff,which contemplated marriage has been communicated in some way orother to the other party, who accepts gifts which are made in view ofthat contemplated marriage, whatever be the .reasons in the mind ofthe second party for accepting them, those gifts are recoverable, ifthe second party fails to carry out the marriage so contemplated. He urgedthat defendant knew plaintiff wanted to marry her and that sheaccepted the gifts and contributions in contemplation of that marriagewhich he hoped would come to pass.
On this point the trial Judge has found that plaintiff incurred expensesin making presents to defendant, not because he was promised anythingin return, but because he hoped to win favour in her sight. He furtherfinds that defendant was reluctant to accept assistance from him, andthat she only did so when he said he wished to help her children. Hewas a bachelor in comfortable. circumstances, and she was left with afamily not at all well off. According to local custom they would call eachother brother and sister. The list of presents filed shows gifts to herchildren as well as to her, and New Year presents to her servant, includingclothing, some household goods, food, money, and a little jewellery.Altogether apart from the question of marriage, help from him to herand her children would in the circumstances not be unnatural and mightwell be expected.
With regard to the contributions to the house being built on defend-ant’s land for her occupation, it seems clear that the house was notstarted until certain monies coming to her on her husband’s death fromthe Savings Bank or a Provident Fund were available. The house is'said to have cost about Rs. 5,000, of which sum defendant says she paidRs. 3,827 in all. It is common ground that plaintiff had the spendingof this money, and the trial Judge states he cannot say how much of thetotal cost plaintiff himself found. It would appear, however, to be thedifference in these sums. He has in any case very greatly exaggeratedthe amount he spent. He seems to have taken the supervision of thebuilding entirely into his own hands, not keeping the defendant informedof the amount being expended on the work, in order to create the impres-sion in the family, as the trial Judge concludes, that he was spending agood deal on the defendant. Under the' circumstances I do not see thathis expenditure here was on any different footing from his expenditureon presents, or his contributions to the maintenance for a short time ofdefendant and her family, to which I have already referred.
The law applicable in a case of this nature, whether English or Roman-Dutch law, would appear to lead to the same result. It would seem tobe governed by the principles of law applicable to ordinary contracts.
DALTON S.P.J.—Wijeytunge v. Attapattu.
Only one local case has been cited, based on the Common law (Appuhamyv. Mudalihamy.') That was an action to recover certain jewellery andpresents given by the plaintiff to defendant in contemplation of a marriagewhich defendant refused to carry out. It is, I think, clear from the reportthat a marriage had been arranged, that is, a promise had been given,with the consent of the defendant’s parents, and that as a result of thatpromise certain gifts were made to the defendant in accordance withlocal custom. The Court, relying on Grotius, Introduction, p. 288, heldthat as defendant had later refused to marry plaintiff, he was entitled torecover from her the gifts or their value. There was here a breach by thedefendant of her undertaking, and the gifts having been made as a resultof that undertaking and being conditional on that undertaking beingcarried out, plaintiff succeeded in his claim.
The English cases seem to set out the law in the same way. Thejudgment of McCardie J., in Cohen v. Sellar *, deals with the law on thesubject at length, and refers to numerous early and later English decisions.In the old case of Young v. Burrell ’, on which Mr. Perera relied, thereport states that the plaintiff sued for the return of a gold pomander“ left as a token at such time as he was a suitor for marriage ” with thedefendant. The defendant did not marry plaintiff, but she admittedher liability to return it and the Court ordered her to do so. The reportdoes not show that there had been an actual promise to marry, or if so,who broke off the engagement; under the "circumstances it was possiblynot necessary to do so. McCardie J. assumes, however, it was thedefendant who desired to escape marriage with the plaintiff, and sheapparently did not wish to keep his gifts. I do not think this case is forthe latter reason of any real assistance here, in support of counsel’s latercontention which I have set out.
Another old case, Lockyer v. Simpson', is of interest because evenalthough a promise of marriage was proved which could not be carriedout owing to the death of the man, the Court declined to order the returnof certain gifts to the value of £420 made to the woman subsequent tothe arrangement of the marriage in an action by the deceased man’sexecutor, since it was under the special circumstances unable to imply acondition to defeat the presumption that the gifts were absolute and notconditional. Those special circumstances were that the parties wererelated, and acquainted intimately for many years before the marriagewas arranged, and that the deceased had apparently formed an admira-tion for her from the time she was an infant. The Master of the Rollspoints out that if no motive for these presents could be assigned but themarriage, then it would be more reasonable to imply a condition that thegifts were conditional on the marriage. Here, however, he states therewere other motives, and it would be too great a strain for a Court of justiceto fix upon this motive of marriage out of so many others. Even assumingthen in the case with which we are dealing that a promise had been proved,as in Lockyer v. Simpson (supra), so here the appellant had several othermotives apart altogether from the marriage for wishing to give defendant
■ Ramanathan's Reports. 1863-1868. p. 226.3 21 Eng. Rep. 29.
= (1926) 1 K. B. 536.* (1730) 1 Mosely 298.
DALTON S.PJ.—Wijeytunge v. Attapattu.
and her children presents and for helping them after the death of herhusband. In these circumstances, had the promise been proved, it wouldstill have been necessary for the Court to Consider whether that promisewas the motive for the gifts or payments or any of them.
Another case relied on by Mr. Perera is Robinson v. Cumming There,one Cumming whose income was £ 100 a year made presents to the valueof £120 to a young heiress, whose grandfather made a will appointing himexecutor and leaving the whole of his estate to him in case he shouldmarry the granddaughter. She was 16 years old on her grandfather’sdeath, seems never to have given Cumming any encouragement, and shedid not marry him, but another person. Cumming sought then toobtain the value of the presents he had made to- her. His claim failed, itbeing held he was a mere adventurer. In giving judgment Lord ChancellorHardwicke stated that in his view, if a person has made his addressesfor some time to a lady upon a view of marriage and, upon reasonableexpectation of success, makes presents to a considerable value, and shethinks proper to deceive him afterwards, it is right that the presentsthemselves or their value should be returned. Where, however, presentsare made only to introduce a person to a woman’s acquaintance and togain her favour, especially if there is a disproportion between the lady’sfortunes and his, like other adventurers, if he runs risks and loses in theattempt, he cannot recover. •
On the facts, the case contemplated in the first portion of the remarksof the Lord Chancellor, which are quoted is clearly to be distinguishedfrom the case before us, for, in view of the learned trial Judge’s findingson the facts, it certainly cannot be said that plaintiff made any giftsupon reasonable expectation of the success of his suit, if that means areasonable expectation based upon something that defendant had saidor done, or that the defendant, having accepted them, thought proper.to deceive him afterwards. Nor do I think this case lays down anyproposition of law which is necessarily inconsistent with the conclusionsof McCardie J. in Cohen v. Sellar (supra). There he sums up the position asfollows: —The conditions which attach to a gift made in contemplationof marriage must be viewed in relation to the incidents which flow fromthe engagement itself. The matter is governed largely by the principlesof law applicable to ordinary contracts. In this event the argumentadvanced by Mr. Perera, on the assumption that there has been nopromise or arrangement of marriage proved, does not seem to me to besustainable. The appellant had various motives for doing what he did,one of which no doubt was, as the learned Judge finds, to win favour forhis suit in defendant’s sight, but he has failed to show that any gifts orpayments he made were made in contemplation of any marriage arranged,in other words, of any promise of marriage, or that they were in any wayconditional gifts.
The appeal must be dismissed with costs.
Drieberg J.—I agree.
> (1742) 2 A thy ns 408.
WIJEYTUNGE v. ATTAPATTU