C. V. UDALAGAMA, Appellant, and IRANGANIE BOANGE, Respondent

006-NLR-NLR-V-61-C.-V.-UDALAGAMA-Appellant-and-IRANGANIE-BOANGE-Respondent.pdf


LORD TUCKER—Udalagama v. Ivanganie Boange
25
[l2T THE PBrVY COUETCIL]
1959 Present: Lord Reid, Lord Tucker, Lord Somervell of Harrow,Lord Denning and Mr. L. M. D. de SilvaC. V. UDALAGAMA, Appellant, and IRANGANIE BOANGE,
Respondent
Privy Council Appeal No. 14 of 19fPS. G. 44d—D. C. KegaUe, 7,873
Breach of promise of marriage—-Action for recovery of damages—Promise in vtriting—
Relevancy of oral promise to marry—Marriage Registration Ordinance {Cap.
95), s. 19.
By section 19 of the Marriage Registration Ordinance—
“no action shall lie for the recovery of damages for breach
of promise of marriage, unless such promise of marriage shallhave been made in wilting. ”
Held, that documentary evidence which does not in express or other unsquivo -cal terms contain a promise to marry is insufficient to prove a promise in writingeven though it may afford evidence of an oral promise to marry. The writingrequired to satisfy the Ordinance must contain an express promise to marry orconfirm a previous oral promise to marry, i.e., admit the malfing of the promiseand evince continuing willingness to be bound by it.
Jayasinghe v. Perera (1903) 9 N. L. R. 62, overruled.
AlPPEAL from a judgment of the Supreme Court reportedin 57 N. L. B. 385.
Sir Frank SosJcice, Q.C.,vnth Ralph Millmr, for thedefendant-appellant.
No appearance for the plaintiff-respondent.
*Cur. adv. vult.
July 29, 1959.[Delivered by Lord Tucker]—
In this case the respondent sued the appellant for damages for breachof promise of marriage. A good deal of oral evidence, conflicting onmany points, and some documentary evidence was placed before the trialJudge who held that no written or oral promise to marry was establishedon the evidence before him. The greater part of the evidence relatedto the question whether there was an oral promise to marry. For reasonswhich appear later it will be seen that this evidence was immaterial to adecision of this case and should therefore have been excluded.
On appeal the Supreme Court held that under the earlier decisions ofthat Court an “ action for damages lies if, in a letter addressed by thedefendant to the plaintiff, there is confirmation or at least an unqualifiedadmission of a subsisting and binding oral promise of marriage Itheld that the necessary elements existed and, setting aside the order ofthe District Judge, entered judgment for the respondent. The question iswhether this ruling was correct.
2—t.tt
2—J. N. B 4366—1,995 (10/59),
26
LOUD TUCKER-—TJdalagama v. Irangomie Boange
It is convenient at this stage to state vrhat in their Lordships’ opinion isthe law of Ceylon relating to the matter. An action does not He inCeylon for every breach of a promise to marry. A restriction is imposedby section 19 of the Marriage Registration Ordinance (Chapter 95.Legislative Enactments of Ceylon, Vol. ill', p7 122), which, after makingcertain provision which has no bearing on cases of breach of promise,enacts as its final provision
" .. no action shall He for the recovery of damages for
breaeh of promise of marriage, unless such promise of marriageshall have been made in writing. *’
There is nothing further in the Ordinance or in any other Statute which■ has a bearing on the point.
Their Lordships are of opinion that the poHcy of the Legislature hasheen to limit the cases in which an action can be brought- to those inwhich the promise, itself is in writing. It may be contained in one ormore documents. Documentary evidence which does not in express or, other unequivocal terms contain a promise to marry is insufficient even. though it may afford evidence of an oral promise to .marry.
Some- confusion seems to have arisen in this case with regard to the; meaning of such words as “ evidenced in writing ” and “ confirmationThe distinction which must always be borne in mind is between writingwhich contains the promise to marry and writing which may affordcorroboration of a previous oral promise. The latter, which is sometimesdescribed as writing “ which evidences a previous oral promise ” isinsufficient, to support an action for breach of promise. The writingrequired to satisfy the Ordinance must contain an express promise to marryor confirm a previous oral promise to marry, i.e., admit the making of thepromise and evince continuing willingness to be bound by it.
■ An "illustration of a writing which, while not containing in itself apromise to marry, might be put forward as affording evidence in writing-of an oral promise to marry is to be found in the case of a writing whichsays, “ I assure you I will carry out the promise I made last month ”.On such a writing the question at once arises, was it a promise to marry 1or- a promise to lend money ? or some other promise. The writing byitself only establishes that a promise was made. If it were possible toestablish by oral evidence that the “ promise made last month ” was apromise to marry, the conflicts and uncertainties which may arise wouldbe almost as much, if not quite as much, as in a case resting on oraltestimony alone, * In answer to oral evidence that it was a promise tomarry, a contesting defendant may say it was a promise other than apromise -fco marry. Their Lordships are of the view that such a writingis insufB.cient to satisfy the statute.
–'The decision in Jayasinghe, v. Per&ra1 has been questioned in sub— sequent cases. Doubts have been expressed as to whether the writingrefied on amounted merely to an admission in writing of a previous oral
LORD TUCKER—Udalagctma a. Iranganie Boartge
27
promise or was a repetition of tlie promise. If the word repetition En-ports an express promise to he hound by the previous oral promise thiswill suffice, but their Lordships are unable to find this in the letter inquestion in that case which, in answer to a request for a written promiseof marriage, said, “ I am not agreeable to what papa says for this reason :that is if I trust darling should not darling trust me ? If they have nofaith in my word I cannot help it. If they don’t believe my word I amnot to blame ”. This is in effect saying, “ You must rest content withsuch remedy as is offered you by an oral promise ”, and is an expressrefusal to give what the Ordinance requires. Their Lordships are accord-ingly of opinion that the decision cannot be upheld.
Extrinsic evidence is only admissible where such evidence is permissibleon general grounds, e.g., where the surrounding circumstances may explainsome ambiguity or identify some person referred to in the writing.
The basis of the judgment of the Supreme Court is to be found in thefollowing passage on page 361 of the Record :—
“ Does P. 1, read in conjunction with the letters D. 7 and D. 8,constitute a ‘ written promise ’ within the meaning of the provisoto section 19 (3) ? The Ordinance does not declare that oral promisesof marriage are null and void ; it merely renders them unenforceableunless they be evidenced in writing. The object is to avoid the riskof vexatious actions based on perjured testimony. The earlierauthorities of this Court were all discussed during the argument andit is settled law that an action for damages lies if, in a letter addressedby the defendant to the plaintiff, there is either confirmation or atleast an unqualified admission of a subsisting and binding oral promiseof marriage. This is the effect of Jayasinghe v. Perera1, MissiNona v. Arnolis 2 and Karunawathie v. WimaZasuriya 3. The letterP. 1 completely satisfies this minimum test. ”
Their Lordships have already indicated that the test referred to in thispassage is not entirely satisfactory and has in fact given rise to differencesof interpretation in its application.
As stated in the judgment of the Supreme Court, “ The parties arewell-edueated Kandyan gentlefolk, and each of them is the child ofparents who hold conservative ideas on the subject of marriage ”.Negotiations for a marriage between them took place in the mannercustomary to such persons and various things had been done includingthe fixing of a dowry to be given by the plaintiff’s father. If a marriagehad gone through the next step would have been a betrothal at which acertain ceremony would have been performed. This did. not take place.It will appear from what is stated later that it is not necessary to ex-amine the reasons for the failure. The parties saw each other and someletters passed between them. Their Lordships will now examine thedocumentary evidence to ascertain whether a promise to marry can hesaid to be contained in it. Three letters were relied on, two from therespondent to the appellant and one from the appellant to the respondent.
*(1903) 9 N. L. B. 62.2 (1914) 17 N. L. R. 42a.
* / ^ a .* •** sfs. -%-r v t> ooa
– {JLV&JL} ay. AJ* At. OW-
28
LORD TUCKER—Udalagama v. Iranganie Boange
These are the documents referred to in the judgment of the SupremeCourt as D. 7, D. 8 and P. 1. The first is the following :—
Boange Walawwa,
' ~ ELadugannawa.
18.12.50.
My darling Teddy,
I asked Mumy if I may write to you, and though she did not sayno, she does not like me corresponding fearing that I might fall intotrouble. But I thought it is my duty to write to you, and keep to mypromise inspite of any obstacle standing in my way.
The other day I was anxiously waiting to meet you before leaving,but I had to come away with a heavy heart, as Daddy came early. Iam still feeling wretched without you. The evenings are unbearable.When I think of you darling, I wish I could fly back to you. I don’tknow how I will stay here all alone till the 7th.
I would have liked to spend even the whole holiday there, but I haveto please so many, with the result that I am unable to do what X want.I hope you understand me, my darling, and will not get angry with mefor leaving you, in spite of you worrying me so much to stay behind. Tospend even.a minute with you is a great joy to me, though you seem tothink that I was impatiently waiting to come home.
I am eveready to do anything for you, hut unfortunately it is my fatethat I am forbidden to do all I can for you, whom I love more than anyone in this world. I know you always think that I don’t care for youbecause I say can’t for anything at all. Please don’t think that I haveno love for you, as I will truthfully tell you that I really love you fromthe very bottom of my heart.
—came here a few minutes after we came home. He was very goodand did not try any of his pranks on me. Please don’t tel] anythingto—because I don’t want the others to say that I made up false storiesabout an innocent man. I am sure, now yon have room to think that Itoo encouraged him ; that is why I don’t want you to speak to—aboutthis. X am not boasting, but it is the actual fact. I have never hadanything to do with another person, and it has always been my one ideato love only one. Take my word I am not a person who is easily tempted.I have always aimed at having a pure character and you can be sure thatin rain or sunshine I will stand by you till the end of my life. It was myambition to find a man too with a pure character and I have found it inyou. Therefore don’t fear. I will always he faithful to you, my darling.I hope you are going for a change, Tf yon are going to ISPEliya please
LORD TUCKER—Udalagama v. Iranganie Boange
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be careful the way you drive the car. Can’t you'get someone to accom-pany you, without going alone ? I thank I had better stop writing as Iam getting late for the post. I will write to you again on Thursday.
With much love and kisses,from
Yours for ever,
Girlie.
Certain initials irrelevant for the purposes of this appeal appear in thespaces left blank.
The next letter is :—
My darling Teddy,
Boange Walauwa.
Kadugannawa.
19.12.50.
I hope my letter has reached you safely. Please be careful withmy letters because there are silly people waiting to make unnecessaryfuss.
Where did you all go yesterday ? I heard that you were going homelast evening.
A little while ago we returned after a days outing in Kandy. I had along jaw with Aunt about the girl whom—and sister went to- see atKurunegala. As for me I was anxiously waiting to come bade soon, sothat I may keep to my promise.
Have you decided about your holiday ? Darling, yon must go some-where and have a good time. Again I am telling you, if you are goingto NTEliya please be careful the way you drive your car.
Though I am here my thoughts are with you my love. Day and night,I think of nothing else but you my darling. The house is still been built.My one work is telling Mummy how unfair they are in delaying like this..She too agrees with me, but I haven’t got the courage to go and tellDaddy. He doesn’t understand our position and is ready to get upsetfor the least thing. That is why I am telling yon that I am placed in sucha difficult position where I have to please so many.
Only I know what a lot of mental agony I have to undergo. In spiteof everything I never show it "because I don’t wish Others to say that Ican’t; get on in life.
I am also very anxious to know about your arrangements etc. there-fore please write to me on Saturday. I ean send one of my brothers t<ythe post on that day. So please don’t fail to let me know all aboutyourself. I am taking a great risk in asking you to write to me, but Ihope everything will be O. K. Another thing, if you are going any-where or not please let me know your holiday address.
'J. 2T. B. 4366- (10/59).
-30
LORD TUCKER—Udalagama v. Irangcmie Boange
I a-m sending yon the Observer Crosswordypuzzle. If it is possibleplease do it and send it to me.
X have sat up till late today because X wanted to write to you some-how, when no one is about the place. It’s past one o’clock and I amfeeling sleepy too, scrTthink I had better conclude. Now please don’tdisappoint me.
With much love and kisses.
From
Yours for ever,
Girlie.
The third letter, from appellant to respondent, is :
Kegalle,
21st December, 1950.
.My darling dearest Girlie,
I received both your letters safe & sound. It was indeed sweet of youto have written to me exactly as promised. As you wanted to know myarrangements for the holiday—well here they are. Tomorrow morningI will be going to Kandy and Katugastota. As a matter of fact as thePost Mark will show you, I am posting this letter from Kandy. I willtry to pick up Shelly and failing I will go up alone to Nuwara Eliya.If I go up alone I will stay at the Grand Hotel, Nuwara Eliya. Other-wise I cannot definitely tell you where I will stay. I shall send you aChristmas Card from Nuwara Eliya to reach you on the 25th Morning.Thank you Darling for the anxiety you have expressed regarding mydriving up. -1 shall indeed try to be careful as possible. Somebody hasgiven you some wrong information, since I have not left Kegalle sinceyou left on the l-6th instant.
I am glad to hear that you have been getting out a bit. I thinkDarling if you can manage it, you too, should take a holiday somewhere,why not induce your Daddy to go somewhere for a few days. You have.been working very hard and I think you fully well deserve a goodholiday.
Girlie dear, I have been missing you very badly these days. Indeedthe evenings are very dull and boring without you and I am waiting to gosomewhere for a little rest. I am much thankful to you for the kindthoughts you have been having about me. Girlie I don’t think I needrepeat all what you have written to me, because I feel just the same wayas you have expressed. I can assure you that all the expectations andtie dreams you have of your future will not be in vain, you can con-fidently hope. The sooner it is, the better, I think. So that you should,if you possibly can, have a chat with your Daddy and tell him that thisunnecessary delay is by no means good to either. It has been hanging
LORD TUCKER—Udalagama v. Iranganie Boange
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fire since June but I find nothing appears to have been done. It isno use delaying now. I can tell your Daddy abont it, but I don’twant to hurt your feelings, it will be better if you could put it to him.
is yet down with measles and it looks as if Sister and them will
not be going anywhere for the holidays.
Darling I hope you are keeping good health. Please be careful ofyourself and don’t fall ill like last time what happened. I suppose themornings are bitterly cold there.
Daya and I just returned from seeing “ The Prince and the Pauper ”.It was a nice picture with a fine story of how Henry V ill’s son Edwardfor a lark exchanged place with a pauper’s son and it became a seriousmatter and it was with great difficulty that the Prince managed toconvince the people that he was the real Prince. I wonder whether youhave seen any picture since you left on the 16th. Yes, that day, Ithought you might still be there, when I came after the pictures and itwas with great sorrow that I learnt from Daya that you had left. Darlingmy thoughts are always of you every day and I am most anxiouslywaiting till the 7th of next month. So please on no account must youkeep away from coming on the 7th.
Don’t worry I will not tell—a word of what you have told me, nor willI tell anyone a word of it. But Darling you must be extremely carefulof yourself and don’t allow people to treat you in the same manner thatyou were treated when you were a small girl of 8 or 9 years. Show thema little reserveness on your part and I am sure they will understand.
As regards the Puzzle I don’t think you are in a burry. I think thedosing date is 16th January. I will have it made and give it to youwhen you come on the 7th.
Well, Girlie my sweetheart, what do you want from Nuwara Eliya—■don’t tell me you want the lake, or the park. I always think howwonderful it would have been if you could have accompanied me on thisholiday—just you and me with all the cares and worries of this worldforgotten for ten glorious days !
B. and Nanda were here last Friday evening. They too don’tintend going anywhere. L. B. it seems is going to take a course ofmedicine at Galagedera and I suppose Nanda too will be there. Dayatold me today that Nanda’s little daughter is also down with measles—that means they too will have to stick at Yatiyantota.
Well Darling I think I better stop, now it is nearly 11.30 p.m. Inthe Christmas Card I shall give you my address in Nuwara Eliya and thedate of my last day of stay there. Write to me then if you can.
Cheerio my sweetheart.
With love,
Teddy.
Neither of the Courts in Ceylon has been able to find in the corres-pondence above a promise to marry. Their Lordships are in the sameposition. The letters on the construction most favourable to the plaintiff
32
Raja/pakse v. Kendrick Singho
do no more than assume that a marriage will take place as a result of artoral promise. Whether such promise was conditional or unconditional,and if the former, whether the condition was ever fulfilled, is not stated.Extrinsic evidence being inadmissible to supply the deficiencies in thecorrespondence the action necessarily failed.
For the reasons which they have given their Lordships will humblyadvise Her Majesty that the appeal be allowed, the judgment and decreeof the Supreme Court be set aside and the decree of the District Courtrestored. The respondent must pay the costs of this appeal and of theappeal to the Supreme Court.
Appeal allowed.