Kandiah Et Al. V. Tambipillai

1943 Present: 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 liquidated damages-Divisibility of covenants-Doctrine of severance.

Plaintiffs, who are husband and wife, sued the defendant, who is uncle of the second plaintiff upon an agreement, which contained the following clauses :-

(1) The first plaintiff should marry the second plaintiff within six months of the execution of the agreement;

(2) That the defendant in consideration of the said marriage should give in dowry to the plaintiff's the premises specified therein and Rs. 300 on the date of their marriage, and Rs. 200 on the execution of the said agreement;

(3) In the event of the defendant failing to give the second plaintiff in marriage to the first plaintiff, the defendant should pay to the first plaintiff the sum of Rs. 500 as and by way of liquidated damages ;

(4) In the event of the first plaintiff failing, refusing or neglecting to marry the second plaintiff, the first plaintiff should pay to the defendant the sum of Rs. 500 as and by way of liquidated damages.

Held, that the agreement was a combination of several distinct covenants and that clauses (1) and (2) independent of clauses (3) and (4) form a separate compact and accord, which is valid and enforceable.

APPEAL from a judgment of the District Judge of Batticaloa. The facts appear from the head-note.

H. V. Perera, K.C. (with him A. S. Ponnambalam and R.. A. Kannangara), for the plaintiffs, appellants.-The agreement in question contains not one promise but different distinct promises although they are all set out in one document. Clause (2) is clearly severable from clauses (3) and (4). It is a legally enforceable promise, the consideration for it being marriage. It is independent of, and can stand apart from, the other clauses which are alleged to be repugnant to the law. The doctrine of severability is discussed in Putsman v. Taylor [L. R. (1927) 1 K. B. 637, at. 640.] The District Judge has misapplied the judgment in de Silva v. Juan Appu[(1928) 29 N. L. R. 417.] Bastiampillai v. Rasalingam3[(1936) 38 N. L.R. 89.]; and Kennedy v. Steenkamp [S. A. L. R. (1936) C. P. D. 113.]. The agreement now sued on is essentially different from a marriage brokage contract. This case falls within the reasons for the decisions in Fernando v. Fernando[(1899) 4 N. L. R. 285.] and Abdul Hameed v. Peer Cando et al[(1911) 15 N. L. R. 91.].

N. Nadarajah, 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 is illegal for a parent or any one in loco parentis to contract to give his

daughter in marriage. It restricts the freedom of choice of the daughter and is therefore, contrary to public policy. This is the basis of the judgments in de Silva v. Juan Appu (supra) and Bastiampillai v. Rasa-lingam (supra). Clause (2) is a claim based on clause (1) and cannot be dissociated from the question of marriage. Clause (3), too, which is clearly unenforceable cannot be separated from clause (2). The two clauses 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 are husband and wife and claim from the defendant who is the uncle of the second plaintiff by virtue of an agreement whereby the defendant undertook to transfer to the plaintiffs a certain piece of land and also to pay them a sum of Rs. 300 in the event

Click Here to Read the rest of this document