KANDIAH et al.,Appellants, and TAMBIPILLAI, Respondent

145-NLR-NLR-V-44-KANDIAH-et-al.Appellants-and-TAMBIPILLAI-Respondent.pdf


Kandiah and Tambipillai.
683
1943Present: Howard C.J. and Keuneman J.
KANDIAH et al., Appellants, and TAMBIPILLAI, Respondent.
288—D. C. Batticaloa, 126.
Agreement to marry—Covenant to give dowry—Covenant to pay liquidateddamages—Divisibility of covenants—Doctrine of severance.
Plaintiffs, who are husband and wife, .sued the defendant, who isuncle of the second plaintiff upon an agreement, which contained thefollowing clauses :—
The first plaintiff should marry the second plaintiff within six
months of the execution of the agreement;
That the defendant in consideration of the said marriage should
give in dowry to the plaintiffs the premises specified thereinand Rs. 300 on the date of their marriage, and Rs. 200 on theexecution of the said agreement;
In the event of the defendant failing to give the second plaintiff
in marriage to the first plaintiff, the defendant should payto the first plaintiff the sum of Rs. 500 as and by way ofliquidated damages ;
In the event of the first plaintiff failing, refusing or neglecting to
marry the second plaintiff, the first plaintiff should pay to thedefendant the sum of Rs. 500 as and by way of liquidated .damages.
Held, that the agreement was a combination of several distinctcovenants and that clauses (1) and (2) independent of clauses (3) and
form a separate compact and accord, which is valid and enforceable.
A
PPEAL from a judgment of the District Judge oi Batticaloa, Thefacts appear from the head-note.
H. V. Perera, K.C. (with him A. S. Ponnambalam and if.. A. Kannan-gara), for the plaintiffs, appellants.—The agreement in question containsnot one promise but different distinct promises although they are all setout in one document. Clause (2) is clearly severable from clauses (3) .and (4). It is a legally enforceable promise, the consideration for it beingmarriage. It is independent of, and can stand apart from, the otherclauses which are alleged to be repugnant to the law. The doctrine ofseverability is discussed in Putsman v. Taylor1. The District Judgehas misapplied the judgment in de Silva v. Juan Appu ‘; Bastiampillai v.Rasalingam*; and Kennedy v. Steenkamp *, The agreement now suedon is essentially different from a marriage brokage contract. This casefalls within the reasons for the decisions in Fernando v. Fernando 3 andAbdul Hameed v. Peer Cando et al“.
N. Nadarajali, K.C. (with him E. B. Wikremanayake and G. Thomas),for the defendant, respondent.—The agreement should be read as'a whole.Clause (1) is the main contract on which the other clauses depend. It isillegal for a parent or any one in loco parentis to contract to give his
• ' h. R. (1927) 1 K:B. 037 /:/ 040.‘ S. A. L. R. (1036) C. P. />. 113.
• (1928) 29 N. L. R. 417.-5 (1899) 4 N. L. R. 2831
– * (1936) 38 X. L. R. 89.5 (1911) IS X. L. R. 91.
5S4
HOWARD C.J.—Kandiah and- TambipiUai.
daughter in marriage. It restricts the freedom of choice of the daughterand is therefore, contrary to public policy. This is the basis of thejudgments in de Silva v. Juan Appu (supra) and BastiampUlai v. Rasa-lingam (supra). Clause (2) is a claim based on clause (1) and cannot bedissociated from the question of marriage. Clause (3), too, which isclearly unenforceable cannot be separated from clause (2). The twoclauses refer to the same point and are intended for the same purpose,namely, of securing the marriage. As regards the doctrine of severability,severance is an act of the parties,, not of the Court—Putsman v. Taylor(supra).
H. V. Perera, K.C., replied._,,
Cur. adv. vult.
: November 9, 1943. Howard C.J.—
In this case the plaintiffs appeal from the decision of the District Judge■' of Batticaloa dismissing their action with costs. The plaintiffs arehusband and wife and claim from the defendant who is the uncle of thesecond plaintiff by virtue of an agreement whereby the defendant under-took to transfer to the plaintiffs a certain piece of land and also to paythem a sum of Its; 300 in the event of the first plaintiff marrying thesecond plaintiff. The plaintiffs who were duly married averred that thedefendant had paid a sum of Rs. 200 on the execution of the said agree-ment and a further sum of Rs. 25 out of the said sum of Rs. 300. Thei plaintiffs, therefore, ,claimed the transfer of the land mentiond in theagreement and the balance due out of the said sum of Rs. 300, namely,.Rs. 275. The learned Judge decided as a preliminary issue that the.^agreement was illegal, contrary to public policy and hence unenforceablesit law.
The agreement contained the following clauses : —
That the first plaintiff should marry the second plaintiff within6 months of the execution of the agreement.
That the defendant in consideration of the said marriage shouldgive in dowry to the plaintiffs the premises specified therein andRs. 300 on the date of their marriage, and Rs. 200 to the first plaintiff
. on the execution of the said agreement.-
In the event of the defendant failing to give the second plaintiffin marriage to the first plaintiff, the defendant should pay to the firstplaintiff the sum of Rs. 500 as and by way of liquidated damages.
In the event of the first plaintiff failing, refusing or neglecting tomarry the second plaintiff, the first plaintiff should pay to thedefendant the sum of Rs. 500 as and by way of liquidated damages.
The learned Judge held that clauses (3) and (4) are illegal and contraryto public policy and that the various clauses of the agreement were sointerdependent that he was' not prepared to hold that it was divisible.In de Silva v. Juan Appu' it was held by Schneider and Garvin JJ.(Dalton J. dissentiente) that a contract by which 'a brother promises togive her minor sister in marriage before a specified date and undertakesabsolutely that, if his promise remains unfulfilled by that date, he willpay a sum of money, is invalid. This case was followed by AbrahamsC.J., and Fernando A.J. in Bastiampillai v. Rasalingam,’- where it was* 29 N. L. R. U7t* 38 A’. L. R. 89.
HOWARD C.J.—Kandiah and Tambipillai
555
held that a promissory note granted in consideration of a promise by afather to give his daughter in marriage to the maker of the note is invalidfor illegaUty of consideration. In this case it was argued that, as thefather promised to give a dowry, there was legal consideration to supportthe validity of the promissory note. It was held, however, that, if anypart of the consideration for a promise is illegal, that promise cannot beenforced. There can be no severance of the legal from the illegal part ofthe consideration. No doubt on the authority of the two cases I havecited a promise by a person to pay a sum of money in the event of hisfailing to give his niece in marriage is opposed to public policy and aclaim based on it is unenforceable. Clause (3) was, therefore, invalid.
I do not, however, think that the same considerations apply to clause (4).It is not necessary to decide on the invalidity of either clauses (3) or (4),if the agreement is divisible. The rule, as laid down in Pickering v.Ilfracombe Railway' is set out in the 18th Edition of Anson on Contractat p. 240 as follows : —
“ Where you cannot sever the illegal from the legal part of acovenant the contract is altogether void, but where you can severthem, whether the illegality be created by statute or common law,you may reject the bad part and retain the good. ”
It is apparent from the author’s comments that the application' of therule is a matter of considerable difficulty. There is however, no doubtthat if any part of the consideration for a promise is illegal, that promisecannot be enforced. As Abrahams C.J. said in Bastiampillai v. Rasa-lingam (supra) there can be no severance of the legal from the illegalpart of the consideration. In this connection I would refer to Lound v.Grimwade The difficulty arises when a legal consideration supportspromises, some of which are legal and others illegal. In Pigot’s case *we find the rule set out as follows :—
“It is unanimously agreed in 14 H. 8. 25, 26, &c. that if some of thecovenants of an indenture, or of the conditions endorsed upon a bondare against law, and some good and lawful ; that in this case, thecovenants or conditions which are against the law are void <rb initio,and the others stand good. ”
This rule was followed in the case of Kearney v. Whitehaven Colliery Co.1where the following passage occurs on page 711 from the judgment ofEsher M.R. :—_
“ If the consideration, or any part of it, is illegal, then every promisecontained in the agreement becomes illegal also, because in such acase every part of the consideration is consideration for the promise.But suppose there is nothing illegal in the consideration ; then upon •that valid consideration may be several promises or liabilities. Ifany one of those be in itself illegal, then it cannot stand, not becausethe consideration becomes illegal, but because the promise itself isillegal. It is a bad promise which cannot be supported by theconsideration. But the other promises which are good and legal inthemselves remain, and c&n be supported by the good consideration. ”
9 77 E. R. 1179.
* {1893) 1 Q. B. 700.
1 L..R. 3 C. P. 250.« 39 Ch. D. 605.
656HOWARD C.J.—Kandiah and Tambipillai.
In the same case Lopes L.J. said as follows on page 713 : —
“But where there is no illegality in the consideration, and some ofthe provisions are legal and others illegal, the illegality of those whichare bad does not communicate itself to, or contaminate, those whichare good, unless they are inseparable from and dependent upon oneanother. ”
The difficulties with regard to the rules that govern the doctrine ofseverance is apparent from a perusal of the judgments of the Court ofAppeal in Attwood v. Lamont '. The majority of the Judges in this case.Younger and Atkin L.JJ. laid down the following principle at page593: —
“The doctrine of severance has not, I think, gone further than tomake it permissible in a case where the covenant is not really a singlecovenant. but'is in effect a combination of several distinct covenants.In that case and where the severance can be carried out without theaddition or alteration Of a word, it is permissible. But in that case
only”
In later cases with respect to covenants in restraint of trade, the testsuggested seems to be whether the parties have themselves made a clearseverance in the contract. In this connection we have been referredto the case of Putsman v. Taylor'. The head-note in this case is asfollows : —
“ A promise may be enforceable notwithstanding that the promisorhas in the same document made promises, supported by the sameconsideration, which are void, provided that the severed parts areindependent and that not the kind but only the extent of the promisor'sobligations will be changed by the partial enforcement. Agreementsin restraint of trade' form no exception to this rule.
The defendant was employed by the plaintiff, a tailor carrying onbusiness at three places, A, B, and C in Birmingham, as manager andcutter. The defendant, in consideration of the employment, promisedthat on the determination of his agreement he would not for five years
set up as a tailor himself, (2) enter into the employment of a named *neighbouring trade rival, (3) be employed in any capacity with anytailor carrying on business in A, B, or C.
Held, that the promise not to take service with any tailor in Acould be severed from the other promises and enforced, in that it didnot affect the original effect and meaning of the agreement—namely,to protect the plaintiff against an improper use by the defendant ofthe knowledge which he had acquired in the plaintiff’s service—butonly limited the scope of its operation. ”
The following passage appears' from the judgment of Salter J. on thedoctrine of severability : —
“ The doctrine of severability is not confined to contracts of service,nor to contracts in restraint of trade. If a promise claims the
1 {.1920) 3 K. B. 571.* (1927) 1 "K. R. *57.
HOWARD C.J.—Kandiah. and Tombipillai.
557
enforcement of a promise, and the promise is a valid promise andsupported by consideration, the Court will enforce the promise, not-withstanding the fact that the promisor has made other promisessupported by the same consideration, which are void, and has includedthe valid and invalid promises in one document. But if the promisesought to be enforced is invalid, as being in undue restraint of tradeor for any other reason, the Court will not invent a valid promise bythe deletion, alteration, or addition of words, and thus enforce apromise which the promisor might well have made, but did not make.The promise to be enforceable must be, on the face of the document,a separate promise, a separate compact, the subject 6f separateconsideration and accord, the performance of which is independent ofthe performance of any other promises which the promisor may havemade. If the promise is a separate promise and valid, the Court willenforce it. Whether it is separate or not depends on the language ofthe document. Severance, as it seems to me, is the act of the parties,not of the Court.”
It only remains to apply to the facts of the present case the principlesformulated in the cases I have cited. The consideration for thedefendant’s promise on which he is sued is the first plaintiff’s promise tomarry the second plaintiff. This consideration was legal. Applying thetests referred to by Salter J. in Putsman v. Taylor (stipro) I am of opinionthat the defendant has made promises which are obviously separate.If the third and fourth clauses are ignored, the change does not giveto the agreement a meaning and object different in kind, but only inextent. The severance does not alter the original meaning and effect ofthe agreement which was to ensure to the plaintiff’s a dowry on marriage.It merely limits the extent of the agreement. The promise to transferthe land and to pay a sum of Rs. 300 contained in clause (2) is on theface of the document a separate promise by the defendant. To use thewords of Younger L. J. in Attwood v. Lamont (supra) the whole agreement■is not a single covenant but a combination of several distinct covenants.Clauses (1) and (2j together form a compact and accord separate fromclauses (3) and (4). The performance of this separate compact isindependent of the performance of the compact contained in clauses (3)and (4). Being a separate promise and valid, the Court will enforceclause (2).
In these circumstances the order of the learned District Judge must beset, aside and the case is remitted to him for further trial. The plaintiffsare awarded costs in this Court and the Court below.
Keuneman J.—I agree.
Appeal allowed.
558
HOWARD C.J.—In re A Proctor.
1943
Present: Howard G.J., Kenneman and de Kretger JJ.
In re A Proctor.
In the Matter of a Rule issued under Section 17 of the Courts
Ordinance.
Proctor—Convicted of escaping from lawful custody—Offence not involving moralturpitude—Suspension from practice—Courts Ordinance, s. 17.
The respondent, a Proctor of the Supreme Court was charged andconvicted of the offence of escaping from lawful custody, when he wasbeing detained under the Defence (Miscellaneous No. 3) Regulations.
On a. rule issued against him to show cause why he should not beremoved from the roll of Proctors, he expressed regret for his action andsubmitted testimonials as to his previous honesty and good character.
Held that, as the offence of which he was convicted was not oneinvolving moral turpitude, suspension from practice for two years was asufficient punishment.
f HIS was a rule issued against the respondent, a Proctor of the Supreme
J.Merv.yn Fonseka, K.C., S.-G. (with him H. H. Basnayake, CrownCounsel), in support of the Rule.
N. Nadarajah, K.C. (with him C. S. Barr Kumarakulasxngham, H. W.Jayewardene, and G. T. Samarawickreme), for the respondent.
November 4, 1943. Howard C.J.—
This is a motion by the Attorney-General under section 17 of the CourtsOrdinance calling upon the respondent, a Proctor of the Supreme Court,to show cause why his name should not be removed from the roll ofProctors. The respondent was on January 19, 1943, in the Magistrate’sCourt, Kandy, charged with the following offence: —
“ That on April 8, 1942, at Kandy, he, being a person lawfullydetained in the custody of the Superintendent of Prisons, Kandy, didescape from- such custody, and that he has thereby committed anoffence punishable under section 220a of the Penal Code.”
The respondent' pleaded guilty to this offence and was sentenced to sixmonths’ rigorous imprisonment. In an affidavit the respondent statesthat on or about June 18, 1940, he was arrested on a Detention Orderissued by His Excellency the Governor under Regulation 1 of the Defence(Miscellaneous No. 3) Regulations and was detained in Kandy. That hewas at liberty from April 8, 1942, until November 7, 1943, on which datehe was rearrested at Nugegoda. That when he left the jail he wassuffering from a serious constitutional disease which is getting worse andworse and that he was unnerved by the apprehension shared by all aroundhim that Ceylon was in danger of invasion. The respondent furtherexpresses his regret for an act which he now realizes was improper andfor having fallen short of the high standard required of members of hisprofession. If ah opportunity is offered him, he promises to make everyendeavour in the future to conform to ,the best traditions of the profession.He also states that he has a wife and one young child and his only meansof support have been his earnings as a Proctor. The respondent has also
T
Court.
Cur. adv. vult.
Nadrn and Fonseka.
558
filed affidavits from Sir Ratnajoti Saravanamuttu, Sir Solomon DiasBaadaranaike, Messrs. Blaze, Pinto and Abeyesekere, Proctors practisingat Badulla, Mr. Wanigasooriya, Additional District Judge, Galle, andMr. Amerasekere, Proctor, Colombo, testifying to his honesty in hisprofessional and private dealings and to his previous good character.Sir Ratnajoti Saravanamuttu also states that he is a sincere man withstrong political convictions.
We have recently had occasion to consider the principles on which weshould take action in respect of a Proctor who has been convicted of acriminal offence. In re Brito' it was held that the Supreme Court has a• discretion and will inquire into the nature of the offence and will not, as amatter of course, strike a Proctor off the roll merely because he has beenconvicted. We have to consider whether the respondent is fit to remaina member of an honourable profession. Having regard to what he hasdone, can it be said that no Proctor should be called upon to enter intothat intimate intercourse with him which is necessary between twoProctors even though they are acting for opposite parties ? Our duty isto regard the fitness of the respondent to continue in the profession fromthe same angle as we should regard it if he was a candidate for enrolment.
A Proctor as an officer of the Supreme Court is part of the machineryfor the due administration of justice. His action, therefore, in escapingfrom Kandy Jail even though his detention was not after conviction on acriminal charge, but under the Defepce Regulations as a measure ofsecurity, was most reprehensible. As an officer of the Court he hasshown a deplorable example. The offence for which he was convicted is,however, not one involving moral turpitude. He has expressed his regretand produced testimonials as to his previous honesty and good characterfrom citizens of standing and repute. In these circumstances we do notconsider that his. conduct calls for such drastic action as removing hisname from the roll of Proctors. Such action would entail the loss of hislivelihood. At the same time we cannot pass over the conduct of therespondent with a mere admonition and we, therefore, suspend him frompractising as a Proctor for a period of two years from the date of thisorder.
Keuneman J.—I agree.de Kretser J.—I agree.