[1946] EACA 5

## COURT OF APPEAL FOR EASTERN AFRICA

Before Sir Joseph Sheridan, C. J. (Kenya), Sir Norman Whitley, C. J. (Uganda), and SIR G. GRAHAM PAUL, C. J. (Tanganyika)

MISTRY AMAR SINGH, Appellant (Original Defendant)

HAZARA SINGH, Respondent (Original Plaintiff) Civil Appeal No. 10 of 1945

(Appeal from decision of H. M. Supreme Court of Kenva)

Contract-Valid by Hindu Law-Invalid by English Law-Proper law of the contract—Breach—Damages—"Gotra"—S. 4 (2) Kenya Order in Council 1921-Indian Contract Act Ss. 23, 56, 73.

The appellant a Hindu residing in Kenya promised to marry his daughter to the respondent, also a Hindu resident in Kenya, who agreed to it. The promise was made in Kenya and the marriage was similarly to be performed in Kenya. Following on the promise and acceptance a betrothal ceremony took place in accordance with Hindu custom. Subsequently the appellant broke off the marriage contract and sought to justify the breach by alleging that his promise to marry his daughter to the respondent was conditional upon the respondent not being of the same "gotra" as either himself or the girl's mother and that he subsequently discovered that the respondent and appellant's wife belong to the same "gotra" the effect of which would according to Hindu religion render the marriage impossible on the ground of relationship.

The respondent successfully brought a suit for damages for breach of contract and was awarded Sh. 545/50 as special damages (being as to Sh. 245/50 for dinners given in celebration of the betrothal and Sh. 300 for sweets) and Sh. 1,000 as general damages.

The appellant appealed.

*Held* $(5-3-46)$ .—(1) By Hindu Law which is the proper law of the contract an action lies for breach of contract at the suit of the prospective husband against the father of the girl.

(2) (Per Sheridan C. J. and Whitley C. J., Graham Paul dissenting). The damages awarded were proper and not excessive.

Appeal dismissed.

Cases referred to: Halsbury's Laws of England (First Edition) Vol. 6 p. 238; Dicey's Conflict of Laws (3rd Edition) p. 602; Satardin v. Din Mohamed & another XI K. L. R. 41.

D. V. Kapila for Appellant.

## Mangat for Respondent.

SIR JOSEPH SHERIDAN, C. J.—The learned trial Judge in this case, in my opinion, correctly appreciated that the plaintiff was not seeking any matrimonial relief, such for instance as a declaration of nullity or an order for restitution of conjugal rights. The action on the contrary was for damages for breach of contract. The contract was for the marriage of the defendant's daughter to the plaintiff and was made in accordance with Hindu custom, the parties being Hindus. It would be very strange, incomprehensible in fact, were the contract made in any other manner than in accordance with the personal law of the parties. Such a contract is governed by the provisions of the Indian Contract Act and there is nothing in that Act opposed to such a contract; it is neither unlawful under S. 23 nor impossible under S. 56. The defendant sought to excuse the performance of the contract on the ground that the gotra (a matter of relationship) of the plaintiff was the same as that of his (defendant's) wife and that according to Sikh marriage custom this rendered a marriage impossible. This excuse the learned Judge held to be an afterthought which was not put forward until after the betrothal ceremony had taken place, and he further found on the evidence and the authorities that the gotra excuse did not render the performance of the marriage impossible. I am not prepared to take a different view from that of the learned Judge. A breach of contract was proved and the plaintiff claimed Sh. 545 special damages (Sh. 245/50 for dinners given in celebration of the betrothal and Sh. 300 on sweets) and Sh. 5,000 for general damages. He was awarded the special damages claimed. He was not cross-examined as to his having spent the amount claimed nor as to the propriety of spending money on dinners and sweets to mark the occasion. I infer that it is customary to do so on the failure to crossexamine. He was also awarded Sh. 1,000 general damages and here again he was not cross-examined on his evidence "At the end of November Bhajan Singh told me that defendant had repudiated his promise . . . When I got that news I felt it very badly and started shedding tears. It is very disgraceful in our community for a betrothal to be set aside because whenever a chance of marriage will occur I will always be viewed with suspicion and dislike in our Society". The learned Judge on this unchallenged evidence awarded him Sh. 1,000 which I am unable to say is excessive. I would dismiss the appeal with costs.

SIR NORMAN WHITLEY, C. J.-In my opinion the learned trial Judge came to the right conclusion when he found that the evidence establishes that the plaintiff entered into a contract with the defendant to marry his daughter and that there was a breach of that contract by the defendant. No evidence was adduced at the trial as to the age of the girl or whether she was willing to marry the plaintiff. Had she been unwilling it seems reasonable to assume that the defendant would have brought out that fact as part of his defence. As to age we have been informed by Counsel that she is now about 21. The parties are Sikhs and their religion is Hindu. It is clear from the Indian authorities that in India in such a case among Hindus the disappointed suitor can bring an action for damages for breach of contract against the father of the girl but Mr. Kapila for the appellant has argued that such a suit would not be maintainable in England and therefore cannot be maintained in this Colony since the Common Law of England applies and there is no Enactment making Hindu Law applicable here. This contention is, in my opinion, answered by the proviso to Section 4 (2) of the Kenya Order in Council 1921 which reads:-

"Provided always that the said common law doctrines of equity and the statutes of general application shall be in force in the Colony so far only as the circumstances of the Colony and its inhabitants permit and subject to. such qualifications as local circumstances render necessary."

In this Colony there are communities of many different races each with its own way of living and its own customs as regards family life and giving in marriage. It would be strange if the common and statute law of England and English rules of equity as applied in England in such matters were to be held to be binding regardless of their own customs upon a community such as the Sikh community who follow the Hindu religion and it seems to me that the proviso is designed to allow of elasticity in such cases and to empower the Courts of the Colony to have regard to the customs and way of living of such a community, provided of course that such customs and way of living are not repugnant to natural justice or in direct conflict with the provisions of any local Ordinance.

It is clear from the conduct of the parties throughout that when the defendant, desirous of finding a husband for his daughter, negotiated with the plaintiff as a prospective son-in-law and eventually agreed to their becoming betrothed both parties were following what they regarded as the customary and proper course according to the way of living of their community and there are a number of Indian cases which establish that amongst Hindus an action lies for breach of contract at the suit of the prospective husband against the father of the girl if the father breaks off the marriage contract.

In my opinion the learned trial Judge rightly held that there was a valid contract for mutual consideration under the Indian Contract Act and I can see no substance whatsoever in the contention that it is void or unenforceable as being opposed to public policy or as defeating the provisions of law relating to marriages in the Colony. There is nothing on the record to suggest that the proposed marriage was contrary to the wishes of the girl and it is common knowledge that amongst Hindus in the Colony marriages are frequently arranged by parents in this way in the best interests of the children and with the happiest results.

The finding that there was a breach by the defendant is amply supported by the evidence and substantially admitted. The defendant sought to justify his breach by alleging that when he promised his daughter in marriage the promise was conditional upon the plaintiff not being of the same gotra as either himself or the girl's mother and that he subsequently discovered that the plaintiff and the defendant's wife both belonged to the "Bumra" gotra, the effect of which would be that the plaintiff and the prospective bride fell within the forbidden affinities according to the Hindu religion and consequently could not marry one another. There was much conflicting evidence on the subject of gotras and, having considered the evidence, I can see no reason to differ from the view formed by the learned Judge, namely, that the so-called gotra rules which are not mentioned in the sacred books are a purely social and not a religious matter; that many Sikh do not observe any gotra rules; and that the defendant, being one such Sikh and having worried not at all about gotras during the earlier stages of the engagement, "seized upon the gotra idea" as an excuse for breaking of the marriage contract when for a totally different reason the plaintiff had ceased to attract as a prospective son-in-law.

Section 73 of the Indian Contract Act provides that, on breach by a promisor of his contract, the promisee is entitled to receive from him compensation for any loss or damage caused to the promisee by such breach or which the parties knew when they made the contract to be likely to result from the breach of it. The defendant must have known that the plaintiff would spend money on the customary betrothal celebrations. There was no cross-examination as to the expenditure of Sh. 545/50 sworn to by the plaintiff so that he was entitled to that sum by way of special damage. The learned Judge further awarded Sh. 1,000 as general damages. The plaintiff in his evidence stated that it is a great disgrace in his community for a betrothal to be set aside and that when he wanted to find some one else to marry him he would be viewed with suspicion by reason of his previous failure. There was no cross-examination as to this and I see no grounds for holding the damages excessive.

I would dismiss the appeal with costs.

SIR G. GRAHAM PAUL, C. J.—The appellant was the defendant in a suit in the Supreme Court of Kenya. The claim in the Plaint was for damages (General Damages Sh. 5,000 and Special Damages Sh. 945/50) for breach of contract. The contract alleged consisted of a verbal promise by the appellant to marry his daughter, Charan Kaur, to the respondent. Following on the promise and acceptance presents were exchanged between the parties. The presents given to the appellant have been returned and no question arises as to them. Both the parties are Hindus and there was a betrothal ceremony performed in accordance with Hindu custom. Both parties were resident in Kenya and the contract was made and was to be performed in Kenya. Judgment was given for the respondent for Sh. 1,000 of General and for Sh. 545/50 of Special Damages. From that Judgment the appellant has appealed to this Court.

It is clear that such an agreement would be unenforceable under English law (even when, as in Kenya, the Indian Contract Act applies) so that if English law were the proper law of the agreement it would not be a "contract" under S. 2 (h) of the Indian Contract Act. The first question in the case is therefore whether the law governing the contract is English law—the ordinary law of the Supreme Court of Kenya-or Hindu law. It is true that in his Plaint the respondent did not allege that the claim was based on Hindu law, but it is clear from the agreement itself, the Statement of Defence and the evidence, that the parties intended that Hindu law should govern the contract and the claim. This is evident enough from the fact that such a contract and claim are unknown to English law, but in addition there is the case $f_{0r}$ the Defence that the contract was subject to an essential condition as to "Gotras" of the parties. "Gotras" are of course unknown to English law and to the English language. "Gotras" are known only to Hindu law and it was clear throughout the proceedings at the trial that both parties dealt with the question of Gotras as a question of Hindu law or custom. The appellant therefore is obviously wrong in suggesting that the parties intended either in making the contract or in the Suit that the contract and questions arising under it were to be decided by any rules except those of Hindu law or custom.

The conduct of the parties in making the contract and at the trial making it clear then that the intention of the parties was that the contract should be governed by the principles of Hindu law or custom it becomes necessary to consider what law the Supreme Court had to apply to the contract.

The law on this subject may be conveniently quoted from Halsbury's Laws of England (First Edition) Volume 6 under the title of "Conflict of Laws". At page 238 of that volume we find the following:—

"The essential validity of a contract (as distinguished from its formal validity) as well as its interpretation and effect, and the rights and obligations of the parties to it, are governed (with certain exceptions) by the law which the parties have agreed or intended shall govern it, or which they may be presumed to have intended. This law is generally known as the proper law of the contract."

Again, in the same volume, we find the following passage at p. $240:$ —

"It is also very material to consider if the contract or any stipulations contained in it are void or invalid under one system of law though good under another, for it will be generally presumed that the parties contracted with reference to that law which would best effect the purpose of the agreement though a partial invalidity of the contract under one of the laws which is possibly applicable is not conclusive."

That simple statement of the law is of course subject to exceptions and these exceptions for the purpose of this case are sufficiently indicated in the following passage at p. 244 of the same volume: $-$

"Contracts which are illegal by the lex fori will clearly not be enforceable, whatever may be their effect under other systems of law. No English Court would entertain an action based upon a contract which conflicted with, and was in violation of, the rules of English law, even though by every other law which could possibly be relevant its validity was unimpeachable.

Contracts, whatever their proper law, are illegal in England if contrary to English ideas of public policy or morality, or even if any part of them is so contrary. Thus, an agreement void by English law, as in restraint of trade in England, or one obtained by moral coercion or duress or entered into for the purpose of a collusive divorce, is illegal in England, even though it be valid by its proper law.

But a contract by its proper law, though invalid in England, will nevertheless be enforced in England, if not inconsistent with public order or good morals."

The statement of the law on this point is similarly put in Dicey's Conflict of Laws (3rd Edition) at pages 602, 606 and 607 under the "Rule No. 161" which is in the following terms:-

"The interpretation of a contract and the rights and obligations under it of the parties thereto are to be determined in accordance with the proper law of the contract"

and Sub-rule $(1)$ :—

"When the intention of the parties to a contract, as to the law governing the contract, is expressed in words, the expressed intention determines the proper law of the contract"

and Sub-rule $(2)$ :—

"When the intention of the parties to a contract with regard to the law governing the contract is not expressed in words, their intention is to be inferred from the terms and nature of the contract, and from the general circumstances of the case, and such inferred intention determines the proper law of the contract."

It seems to me that the agreement in this case, though invalid under English law, is undoubtedly good by its proper law and therefore according to the authorities quoted it would be enforced in England if not inconsistent with public order or good morals. Where, as in Kenya, there is a very large Hindu community it would be impossible to hold that there is anything inconsistent with public order or good morals in the enforcement, in such circumstances as exist in the present case, of the established customs of the Hindus as regards such important matters as the contracting of marriages, and it is clear on the record of this case and the authorities quoted to us that the contract in question is in accordance with the established Hindu custom.

If any suggestion were made that specific performance of such a contract as this could be ordered by the Supreme Court of Kenya quite a different question would arise, but it is not suggested that even under Hindu law specific performance of such a contract could be ordered, so that the question does not arise.

It was submitted in argument for the respondent that under Article 4 of the Kenya Order in Council the Supreme Court was bound to administer in any suit to which only Hindus were parties the Hindu law, to the exclusion of English Common Law and doctrines of equity. I am unable to agree with that submission as it seems to me that neither by the substantive enactment of Article 4, nor by the proviso at the end of the Article, is the Supreme Court authorized to exercise its jurisdiction in conformity with the rules of Hindu law as the rules ordinarily or generally applied by the Supreme Court in any suit to which only Hindus are parties. To accept that submission would to my mind amount to an amendment of Article 4 by the Court by the insertion of a provision as regards Hindus in similar terms to Article 7 as regards natives. If it had been the intention of the Order in Council that the Court should deal with all suits between Hindus according to Hindu law in the same way as they are to deal with suits between natives according to Native law it would have been simple

to put in a provision on the lines of Article 7. There is no such provision in the Order in Council and it is for the Legislature and not for the Court to put in such a provision if it be found desirable to do so. In my view any Hindu coming to Kenya is entitled under Article 4 to receive from the Supreme Court the benefits of the English common law and doctrines of equity in regard to any of his dealings in Kenya which come before the Court, and the mere fact that his opponent in a suit is a Hindu cannot of itself be allowed to deprive him of these benefits, as in the present case, he has agreed to the matter in issue being ruled by Hindu law.

I would add that where a Hindu plaintiff comes into the Supreme Court seeking to have Hindu law applied he should so state in his Plaint and he would specify precisely what he alleges the Hindu law to be and on what grounds he alleges that it should be applied in determining the particular suit. Much of the difficulty in this case would have been avoided if this had been done. Where a plaintiff does not make it clear in his Plaint that he depends upon Hindu law the defendant and the Court may quite rightly assume that he is claiming under the ordinary general law of the Court which is English law.

The appellant in his defence relied on what he alleged to have been essential condition of the contract namely that as between the respondent and the appellant's daughter the matter of the Gotras was in order according to Hindu law and that as in fact this matter of the Gotras was not in order he was under no obligation. It is enough to say in regard to this defence that the defendant failed to establish that there was any such condition to the contract.

As to the damages to which the respondent is entitled, there is no evidence whatever that the dinners which he gave were in any way necessary or ordinary consequences of the contract and the betrothal, so that it does not appear that he is entitled to recover the cost of these dinners as special damages. There is evidence that the provision and distribution of sweets was an ordinary incident of the betrothal ceremony which followed upon the contract so the respondent was entitled to judgment for the amount of his expenditure on this head as special damages.

As to the amount of general damages, it does not appear on the evidence that the respondent in consequence of the appellant's breach of contract suffered at all in his reputation, or that he was subjected to ridicule and public contempt. because on the evidence the only published reason for the breach was that the appellant rightly or wrongly considered that on account of the Gotras complication he could not carry out the contract. That reason did not in any way reflect on the reputation or character of the respondent. As to injury to his feelings it does not appear on the evidence that this element entered into the matter to any appreciable extent. This case is quite different from the ordinary English case of breach of promise of marriage where the feelings of the injured party may well be deeply affected. There is in this case no evidence whatever of any affectionate relations between the plaintiff and the betrothed girl who indeed seems to be treated more like a chattel than a person by the contract and the. parties to it.

Upon the head of general damages I consider that only a nominal amount should be awarded and accordingly I would allow the appeal and reduce the amount of damages to: $-$

| | General damages | $\cdot$<br>$\overline{a}$ | $\sim$ $\sim$ $\sim$ | the state of the state of the state | Sh.<br>$-20^{\circ}$ | |-------|-----------------|---------------------------|----------------------|-------------------------------------|----------------------| | and ' | Special damages | | | | $Sh. 300$ | | | | | | | Sh. 320 |

This Court has been referred to the decision in the case of Satardin v. Din Mohamed and another—a decision of this Court (XI Kenya Law Reports, 41). That was a case between Mahommedans based on a contract similar to the one in the present case. In that case the plaintiff claimed against a girl and her father-

$(a)$ a declaration that the betrothal is valid and subsisting:

- (b) that the second defendant (the betrothed girl) return the presents given to her by the plaintiff; - (c) that the first defendant (the girl's father) pay to the plaintiff special damages and moral and intellectual damages: - (d) an injunction to restrain the second defendant from marrying anybody else until such articles or their value are returned.

The Judge who tried the case held on the defendant's plea that the Plaint disclosed no cause of action, that the betrothal was void as against the girl because she was not a party to it, and void as against the father as being an attempt by him to exercise a right which he did not possess. The plaintiff appealed to this Court and the appeal was dismissed—the Appeal Court Judges giving somewhat different reasons for dismissing the appeal as regards the claim for damages.

Satardin's case related to Mahommedans and the present case relates to Hindus but the contract in question in *Satardin's* case, and the legal considerations affecting it, were exactly similar to those in the present case. There is one important point of difference in the two cases however. In Satardin's case the plaintiff claimed a declaration that the betrothal was valid and subsisting and also, and not in the alternative, damages. These two claims were obviously incompatible and that of itself was sufficient to justify the dismissal of the claim *in toto*. I do not therefore regard the decision in Satardin's case as inconsistent with the decision which I propose in the present case though undoubtedly some to the *obiter dicta* of the judges in Satardin's case are inconsistent with the views I have expressed as to the application of Hindu law by the Court in interpreting this contract.

The arguments in Satardin's case are not reported, but from the Judgments reported it does not appear that the Court considered the law as to the proper law of the contract in regard to which I have quoted authorities. For these reasons I do not regard the decision in *Satardin's* case as precluding this Court from giving effect in the present case to the views I have expressed.