1933 Present: Dalton S.P.J. and Drieberg J.

WIJEYTUNGE v. ATTAPATTU.

 95-D. C. Colombo, 36,818.

Gifts in contemplation of marriage-Action to recover-Motive must be promise of marriage-Gifts made to win favour for suit not recoverable.

In an action to recover a gift made in contemplation of marriage the plaintiff must prove that the motive for the gift was defendant's promise of marriage or that the gift was conditional on marriage taking place.

Gifts made with the intention of winning favour for plaintiff's suit in defendant's sight are not recoverable.

APPEAL from a judgment of the District Judge of Colombo.

H. V. Perera (with him Ameresinghe), for plaintiff, appellant.

De Zoysa, K.C. (with him N. E. Weerasooria), for defendant, respondent.

June 1, 1933. DALTON S.P.J.-

The plaintiff (appellant) brought this action against the defendant (respondent) to recover from her certain gifts made by him to her, and certain money contributions made by him towards the construction and completion and repair to a building on land belonging to the defendant, such gifts and contributions having been made in contemplation of a marriage between the parties, or in the alternative to pay their value set out at Rs. 3,569.43. It is alleged that defendant promised to marry the plaintiff about the beginning of the year 1929.

The parties are the children of two sisters, plaintiff being a bachelor 45 years of age at the time of the action, and the defendant a widow 35 years of age, with children. Prior to defendant's first marriage there is evidence to show that plaintiff had wished to marry her, having cherished an affection for her from his youth, but her father objected to his suit, apparently for the reason that according to Sinhalese custom, being the children of two sisters, they would not ordinarily be allowed to marry.

The learned trial Judge has held that the phrase " in contemplation of marriage" must relate to a marriage that has in fact been arranged between the parties, that the foundation of such an action must be a promise of marriage, and he expresses the opinion that that promise can only be proved by a writing, in view of the provisions of section 21 (1) of the Marriage Registration Ordinance, 1907, the proviso to which enacts that no action shall lie for the recovery of damages for breach of promise of marriage, unless such promise of marriage shall have been made in writing. In case, however, he should be wrong on this last point, in this case he has held that there is no evidence at all to justify a finding that defendant had ever promised to marry plaintiff. I have considerable doubt as to whether the proviso referred to applies to such a case as this, but in view of the finding of the trial Judge that in fact there was no promise written or otherwise, with which finding I am not prepared to disagree, it is not necessary to consider this last point further. It is

possible no doubt to infer a promise to marry to some extent from the conduct of the parties, but all the attendant circumstances and correspondence that passed have, it seems to me, been duly considered by the learned trial Judge, and he has come to the conclusion that no promise has been proved. That, in my opinion, is a finding to which on the evidence he was entitled to come.

Mr. Perera then urged for the appellant that even if the promise of defendant be not proved, nevertheless provided it be shown that the marriage was in the contemplation of one party, here the plaintiff, which contemplated marriage has been communicated in some way or other to the other party, who accepts gifts which are made in view of that contemplated marriage, whatever be the reasons in the mind of the second party for accepting them, those gifts are recoverable, if the second party fails to carry out the marriage so contemplated. He urged that defendant knew plaintiff wanted to marry her and that she accept