1922.

DE SAMPAYO

J.

John Sinno v. Weerawardane

was written to Wastuhamy, the marriage broker, about a marriage of the first defendant's second son to some other girl. The question, however, is whether the plaintiff was not substantially right as regards the main incident which constitutes his cause of action. Wastuhamy, who appears to have been a relative of both parties, suggested to the plaintiff that if the plaintiff was agreeable a marriage might be arranged between the plaintiff's daughter and the second defendant. The plaintiff being willing, the first defendant and his son, the second defendant, visited the plaintiff's house for the purpose of concluding a formal engagement. This was on or about February 21, 1919. The plaintiff then agreed to give his daughter in marriage to the second defendant, and February 24 was fixed for giving notice of registration. The plaintiff also agreed to give a dowry of Rs. 1,000, and on February 24, when the notice of marriage was in fact given, the plaintiff paid to the second defendant a sum of Rs. 500 as part of the agreed dowry. The plaintiff's case is that at the first visit of the defendants to his house, the defendants falsely represented to him that the second defendant was at that time employed as a clerk in the National Bank of India and received a salary of Rs. 100 a month, that they thereby induced the plaintiff to give his consent to the marriage and to promise the dowry, and that the proposed marriage was broken off when the plaintiff discovered the defendants' representation to be false. The plaintiff claims 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 expenses incurred by him in connection with the preparations for the marriage. It appears that the second defendant was at one time employed in the Bank, but had some time before February, 1919, given up his office owing to illness, and was unemployed at that time, but the defendants deny that they made the alleged representation. The District Judge found in favour of the plaintiff on the issue between the plaintiff and the defendants, and gave plaintiff judgment for 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 somewhat exaggerated, and that the District Judge went too far in accepting the plaintiff's evidence in all its details. But it is well known that people of the class to which the parties belong place much value on offices and names, and probably the plaintiff satisfied himself as to the position of his future son-in-law. It is also not an uncommon practice to describe a person by his office, even if he has given it up or lost it. For instance, the second defendant, even after he left the Bank, called himself, or was called, liyana mahatmaya; literally, "writer gentleman." Counsel, for the defendants. allows that at the interview with the plaintiff the defendants may have in this way referred to the second defendant as liyana mahatmaya, I think that this is not unlikely. Even so, the plaintiff was through this inaccurate description misled into the belief that the second

defendant was at that time, in fact, a clerk, and gave his consent to the marriage on that footing. The appeal is strongly pressed, because it is said the defendants resent the implied imputation on their character. But I think that the defendants need have no apprehension in this respect. I do not myself believe that they were guilty of anything beyond a bit of vanity.

The legal aspect of the case must be touched upon. The RomanDutch law recognizes the right to recover a wedding present when the marriage falls through. Grotius 3, 2, 20 puts it broadly thus: "A donation made in contemplation of marriage must be returned in case the marriage does not take place." There is one local decision in which the law so stated was applied. See Appuhamy v. Mudalihamy. In that case the party receiving the gift had refused to carry out the promise to marry, but I do not think such default is essential for the obligation to restore the gift. The matter may be referrable to the general principle that when the consideration fails, the subject of the transaction may be reclaimed.

1

I therefore think that the judgment for the return of the Rs. 500 to the plaintiff is right, but as regards the damages I do not see any legal basis for the claim. In the circumstances I would modify the 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.

Present: Schneider J.

Appeal dismissed.

SILVA v. WATTUHAMY.

260-C. R. Matara, 11,137.

Decree that no damages are to be paid if defendant allows a cart track within three months of the date of the decree-Appeal to Supreme Court-Appeal dismissed—Is period of three months to be counted from date of Supreme Court judgment?

The judgment of the Commissioner of Requests ordered the defendant to pay damages at the rate of Rs. 10 a month, but directed no damages was to be paid if the defendant within three months of the decree allowed or provided a cart track. The defendant appealed, and the Supreme Court affirmed the judgment.

Held, that the three months must be reckoned from the date of the decree of the Court of Requests, and not from the date of decree of the Supreme Court.

1 Ram. Rep. 1863-68, p. 226.

1922.

DE SAMPAYO
J.

John Sinno v. Weerawardane

1922.

1922.

Silva v. Wattuhamy

THE facts are set out in the judgment.

M. W. H. de Silva, for appellant.

H. V. Perera, for respondent.

November 1, 1922. SCHNEIDER J.

On a writ issued in this case a sum of Rs. 300 was included by way of damages. The judgment and decree of the Commissioner, I think, clearly indicates that Rs. 10 damages a month should be paid as from the date of his decree till restoration, but that even this damages was not to be paid if, as directed by him, the defendant would within three months of the date of the decree allow or provide a cart track. There was an appeal to this Court from the decree of the Commissioner, and this Court affirmed that decree. It appears to have been contended upon an application for the recall of the writ that the period of three months must be reckoned as from the date of the decree of this Court affirming the decree of that Court. This contention was sought to be supported by reference to the case of Cassim Lebbe Marikar v. Surayi Lebbe1 and the Attorney-General v. Perera. None of those are actually in point. There is an expression of opinion by one of the Judges who took part in one of the cases that an appeal, ipso facto, suspends decree. This seems to be a startling proposition. For section 761, chapter LIX., of the Civil Procedure Code, expressly enacts:

"Execution of a decree shall not be stayed by reason only of an appeal having been preferred against the decree; but, if any application be made for stay of an appealable decree before the expiry of the time allowed for appealing therefrom, the Court which passed the decree may for sufficient cause order the execution to be stayed.”

This view of the law appears to have been accepted as correct in the case of Arunasalem v. Somasunderam.3

I would, therefore, hold that the date of the decree in this case is the date of the decree of the lower Court. All that was done in appeal was to affirm that decree. Therefore by virtue of the Supreme Court judgment that decree became final as from its own date. I would therefore dismiss the appeal, with costs.

Appeal dismissed.

13 C. W. R. 61.

2 (1908) 12 N. L. R. 35. 3 (1918) 20 N. L. R. 321.

Present: Schneider J.

THE ATTORNEY-GENERAL v. COSTA et al.

76-C. R. Colombo, 671.

Bond by a minor along with her father as surety to go through a course at the Training College and serve for five years as a teacher-Is bond valid ?-Penalty-Liquidated damages.

The first defendant, who was a minor, entered into a bond with her father as surety agreeing to pay His Majesty the King the sum of Rs. 300. The condition of the bond was that if the first defendant would complete the prescribed course for the students of the Musæus Training College and immediately thereafter be a teacher in some registered school for five years, then the obligation shall be null and void. The first defendant presented herself for some ‘examination, and, on failing, abandoned her training. The Crown sued on the bond. The Commissioner of Requests held that as the bond was not in the form prescribed in the Education Code, the action was not maintainable.

Held, (1) That as the bond was for the benefit of the minor the contract was binding on the minor; and that as the father joined in the bond, the contract was binding on her.

(2) The fact that the bond was not in the form prescribed in the Code did not affect the validity of the bond.

(3) Under our law even a penalty may be recovered if it be not ingens or immanis.

(4) The amount stipulated even under the English law was in the nature of liquidated damages.

In this action the plaintiff sued upon a bond entered into by him on the one part and the first and second defendants on the other part. The bond is dated July 24, 1921. It would appear that at that date the first defendant was a minor, and second defendant, who entered into the bond as surety, is her father. The bond stipulated that the defendants were bound in a sum of Rs. 300 to be paid to His Majesty the King. The bond recites that on November 11, 1920, the first defendant entered into the Musæus Training College as a student. The condition of the bond was that if the first defendant would complete "the prescribed course for the students of the Museus Training College and immediately thereafter be a teacher in some registered school in Ceylon

1922.

1922.

SCHNEIDER
J.

The AttorneyGeneral v. Costa

under the management of the Buddhist Theosophical Society or of any other Buddhist Society or Buddhist school for and during five consecutive years, then this obligation shall be null and void." It would appear that the first defendant presented herself for some examination in connection with her training course and failed. She, thereupon, on August 8, 1921, left the Museus College, and abandoned her training. The action is founded upon the alleged breach on her part of the condition of the bond. The defence raised to the action was that the first defendant was a minor, and that, therefore, the contract is not binding. The learned Commissioner has rightly held that this defence is not sustainable, because the bond was entered into for the benefit of the minor, the first defendant, and it seems to me it is also unsustainable for another reason, viz., that she entered into the bond with the authority of her father, who, I take it, is her guardian. But the learned Commissioner has dismissed the plaintiff's action for reasons which do not commend themselves to me, and which I am unable to uphold. He appears to have considered the Government Grant-inaid Code, and to have come to the conclusion that the bond was not in the form prescribed by that Code. It seems quite clear to my mind that the learned Commissioner was not justified in consulting the Grant-in-aid Code in order to interpret a contract entered into by parties with all the solemnity of a bond. Parties must be held bound by the terms of the bond. It is equally clear to me that by the bond the defendants undertook to pay a sum of Rs. 300 as damages if first defendant failed to qualify herself as a trained teacher, and thereafter to serve as a teacher for a certain period of years. When she failed her examination and discontinued the course of studies, she clearly committed a breach of the condition of the bond, and thereby became liable to pay the sum stipulated in the bond. It was contended in argument that she, by failing at that examination, made it impossible for herself to complete her course of training. I do not know whether that would be so or not, but assuming that to be so, it would be no defence to the action, because her stipulation was that she would pay that sum of Rs. 300 in case she did not complete her course of training or render service thereafter. I would, therefore, hold that there had been a default on the part of the first defendant, and that the defendants are, therefore, liable upon the bond. It was then argued that the sum of Rs. 300 is a penalty, and should not be regarded as liquidated damages; that no damages have been proved; and that, therefore, the plaintiff was not entitled to claim any more than nominal damages. The defendants' case may be a hard one, but I do not think that I would be justified in laying down bad law because of a hard case. The Roman-Dutch law does not recognize the English law distinction between penalty and damages. Under our law even a penalty may be recovered if it be not ingens or