Samarasundera V. Perera

1930  Present: Dalton and Lyall Grant JJ.

SAMARASUNDERA v. PERERA.

267-D. C. Nuwara Eliya, 985.

Breach of promise-Agreement to pay damages after broach -Legality- Liability of public servant-Ordinance No. 2 of 1899.

A written agreement to pay a certain sum as damages for breach of promise to marry, which was entered into after the breach, is not illegal.

Such an agreement is not a written security within the meaning of the Public Servants' (Liabilities) Ordinance.

APPEAL from a judgment of the District Judge of Nuwara Eliya.

On September 20, 1926, the defendant, a public servant, promised to marry S., and undertook to pay her Rs. 2,000 if he failed to keep his promise. In February, 1927, the defendant decided not to carry out his agreement to marry. He accordingly paid S. Rs. 300, and gave her a document (P 1) in which he promised " to pay S., her heirs or successors " Rs. 1,700 in instalments, cancelling the former agreement. S. accepted it, foregoing thereby her right to sue defendant for breach of promise of marriage. Shortly afterwards S. died, and the plaintiff, who was the administratrix of her estate, brought this action to recover from the defendant the balance due on the document P 1.

The defendant pleaded in his answer that the promise contained in the document P 1 was illegal and void as against public policy. He further pleaded that, in any event, that on the death of S.

no right of action survived .to her administratrix. Lastly he claimed the protection of the Public Servants' (Liabilities) Ordinance, No. 2 samara. of 1899. -

The learned District Judge dismissed the plaintiff's action with costs. The plaintiff appealed.

Weerasooriya, for plaintiff, appellant.

Peri Sundaram, for defendant, respondent.

January 20, 1930. DALTON J.

Plaintiff as administratrix of the estate of Sophana Gertrude Samarasundera sought to recover from the defendant a sum of Rs. 1,700 alleged to be due by defendant to the late S. C. Samarasundera on an undertaking given by him to her in writing. The writing (P 1) which defendant admitted he signed is in the following form: -

I, A. W. Perera, of Forest Department, Nuwara Eliya, promise to pay Miss S. C. Samarasundera of Hall View, -Nuwara Eliya, her heirs or successors the sum of Rupees One thousand and Seven hundred only (Rs. 1,700) in Ceylon currency by monthly instalments of Rupees Twenty only (Rs. 20).

This cancels my agreement of marriage of Twentieth September, One thousand Nine hundred and Twenty-sixth year (20.9.26).

The above amount she can only claim from me by monthly instalments of Rupees Twenty only (Rs. 20).

(Signed) A. W. Perera.
6. 2. 27            
(6-cent stamp.)

Witnesses:
(1)___________________

(2) V. A. Thepanis.

           6. 2. 27.

In his answer defendant set out that on September 20, 1926, he agreed to marry Miss Samarasundera, and undertook to pay her Rs. 2,000 if he did not keep his promise. In pursuance of this agreement, as he had decided not to marry her, he gave her this document P 1 of February 6, 1927. He pleads that it is of no force or avail, as being " illegal and against public policy for want of consideration." If it is valid and enforceable, he pleads no right of action has survived to the plaintiff beyond n claim to Rs. 60 being instalments alleged to be due to deceased up to the date of her death. He further pleads that he was induced to enter into the agreement, presumably he means the agreement to marry, because the deceased had falsely and fraudulently represented to him that she was a " virgo intacta." Lastly he pleaded he was a public servant protected by the provisions of Ordinance No. 2 of 1899.

The trial Judge has dismissed plaintiff's action for two reasons, first on the ground that the contract evidenced by P 1 is against the interests of public policy and morality, and secondly, even if the contract was enforceable by deceased, the present plainti

Click Here to Read the rest of this document