089-NLR-NLR-V-24-JOHN-SINNO-v.-WEERAWARDANE-et-al.pdf
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Present : De Sampayo and Schneider JJ.
JOHN SINNO v. WEEB'AWARDANE et al.
197—D. C. Kalutara, 10,103.
Donation in contemplation of marriage—Right to recover present when
marriage falls through.
Plaintiff under the belief^ that defendant was employed as aclerk consented to defendant marrying his daughter, and agreedto give a dowry of Us. 1,000. On the day notice of marriage wasgiven, plaintiff gave defendant Rs. 500 out of the dowry. Theproposed marriage was broken off, as the defendant was not * asemployed.
Held, that plaintiff was entitled to recover the money given todefendant.
“A donation made in contemplation of marriage must bereturned in case the marriage does not take place.*’
H. J. C. Pereira, K.C. (with him Zoysa), for defendants, appellants.
E. W. Jayaivardene (with him Soertsz), for plaintiff, respondent.
December 21, 1922. De Sampayo J.—
This appeal of the defendants has been pressed on the facts.
The argument that the plaintiff, in the course of his evidence, made a
number of false statements is justified. The learned Acting District
Judge himself has fallen into the error of supposing that .the letter* " *
P 2 dated January 4, 1919, was .written to the plaintiff about aproposal of marriage of the first defendant's eldest son, the second ■defendant, to the plaintiff's daughter. It is obvious—from internalevidence and from all the circumstances of the case that the letter
1929.
1
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1922, was written to Wastuhamy, the marriage broker, about a marriageD» Samvayo of the first defendant’s second son to some other girl. The question,however, is whether the plaintiff was not substantially right asJohn Sinno regards the main incident which constitutes his cause of action.V‘tmrctone Wastuhamy, who appears to have been a relative of both-parties,suggested to the plaintiff that if the plaintiff was agreeable a marriagemight be arranged between the plaintiff’s daughter and the seconddefendant. The plaintiff being willing, the first defendant and hisson, the second defendant, visited the plaintiff’s house for the purposeof concluding a formal engagement. This was on or about February21, 1919. The plaintiff then agreed to give his daughter in marriageto the second defendant, and February 24 was -fixed for givingnotice of registration. The plaintiff also agreed to give" a dowryof Rs. 1,000, and on February 24, when the notice of marriage wasin fact given, the plaintiff paid to the second defendant a sum ofRs. 500 as part of the agreed dowry. The plaintiff's case is thatat th.e first visit of the defendants to his house, the defendants falselyrepresented to him that the second defendant was at that timeemployed as a clerk in the National Bank of India and received asalary of Rs. 100 a month, that they thereby induced the plaintiffto give hisv consent to the marriage and to promise the dowry, andthat the proposed marriage was broken off when the plaintiffdiscovered the defendants’ representation to be false. The plaintiffclaims a refund of the sum of Rs. 500 paid to the second defendant,and a further sum of Rs. 250 as damages in respect of expensesincurred by him in connection with the preparations for the marriage.It appears that the second defendant was at one time employedin the Bank, but had some time before-February, 1919, given uphis office owing to illness, and was unemployed at that time, butthe defendants deny that they made the alleged representation.The District Judge found in favour of the plaintiff on the issuebetween the plaintiff and tho defendants, and gave plaintiff judgmentfor the Rs. 500, and for a further sum of Rs. 100 as damages.
It is probable that the plaintiff’s account of the matter is somewhatexaggerated, and that the District Judge went too far in acceptingthe plaintiff's evidence in all its details. But it is well knownthat people of the class to which the parties belong place muchvalue oh offices and names, and probably the .plaintiff satisfiedhimself as to the position of his future son-in-law. It is also notan uncommon practice to describe a person by Kis office even, ifhe has given it up or lost it. For instance, the second defendant,even after he left the Bank, called himself, or was called, liyana mahat-maya; literally, “ writer gentleman.” Counsel, for the defendants,allows that at the interview with the plaintiff the defendants m&y havein this way referred to the second defendant as liyana mdhatm&ya,I think that this is not unlikely. Even so, the plaintiff was throughthis inaccurate description misled into the belief that the second
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defendant was at that time, in fact, a clerk, and gave hia consent ■to the marriage on that footing. The appeal is strongly pressed, 8axba.yqbecause it is said the defendants resent the implied imputation j,on their character. But I think that the defendants need have no Jojin gjnnoapprehension in this respect. I do not myself believe that they v. Wcera-were guilty of anything beyond a bit of vanity,toardane
The legal aspect of the case must be touched upon. The Roman-Dutch law recognizes the right to recover a wedding present whenthe marriage falls through. Grotius 3, 2, 20 puts it broadly thus :" A. donation made in contemplation of marriage must be returnedin case the marriage does not take place/’ There is one localdecision in which the law so stated was applied. See Appuhamyv. Mudalihamy -1 In that case the party receiving the gift hadrefused to carry out the promise to marry, but I do not think suchdefault is essential for the obligation to restore the gift. Thematter may be referrable to the general principle that when theconsideration fails, the subject of the transaction .may be reclaimed.
I therefore think that the judgment for the return – of the Us. 500to the plaintiff is right, but as regards the damages I do not seeany legal basis for the claim. In the circumstances I would modifythe decree by deleting the order as to payment of Rs. 100 as damages.The appeal should, I think, be otherwise dismissed, with costs.
Schneider J.—I agree.
Appeal dismissed.