Norman Macleod, Kt., C.J.
1. The original plaintiff's who were father and son brought this suit to recover the sum of Rs. 21,000 odd as damages for breach of a contract of betrothal. In 1901, the 1st defendant, the brother of the proposed bride, betrothed his sister to the 2nd plaintiff. The 2nd plaintiff was then nine years old and the proposed bride was four years old. In the ordinary course the marriage would have taken place in eight or nine years, that is to say, about 1910 or 1911. But postponements were made of the marriage ceremony by the defendant, in the belief that these postponements were required by the health of the bridegroom. In December 1913, the betrothal was broken off. In April 1914 the bride Mangalagavri married the 2nd defendant. During the pendency of the suit the 1st plaintiff died, and during the pendency of the appeal the 2nd plaintiff died. The suit was dismissed by the learned Subordinate Judge with costs. He held that the 1st defendant was justified in retracting the engagement, and that therefore he could not be liable in damages, nor was he liable for out of pocket expenses. 'It is quite clear that owing' to the death of both the original plaintiffs there can be no claim now for damages. The only question is whether the representatives of the original plaintiffs as members of the family are entitled to recover the out of pocket expenses which the plaintiffs said they incurred while the betrothal was in existence. The learned Judge at page 8, line 63, says: 'As there was sufficient reason for retracting the engagement, the out of pocket expenses cannot be recovered from the defendant No. 1 under Verse 28 of Section XI of Chapter II of the Mitakshara.' But it appears to us that the learned Judge has misread that particular verse. Verses 26, 27 and 28 deal with the question of betrothal and what are the consequences of a breach. Verse 26 says:
For detaining a damsel, after affiancing her, the offender should be fined, and should also make good the expenditure together with interest.
2. By Verse 27:
If there be good cause, he shall not be fined, since retraction is authorised in such a case. The damsel, though betrothed, may be withheld if a preferable suitor present himself.
3. Then by Verse 28 :
Whatever has been expended, on account of the espousals, by the [intended] bridegroom, [or by his father, or guardian,] for the gratification of his own or of the damsel's relations, must be paid in full, with interest, by the affiancer to the bridegroom.
4. It is quite clear, therefore, that though the offender shall not be fined if there is good cause for the retraction, yet in any event by Verse 28 he must pay the expenses incurred by the bridegroom or his father during the betrothal.
5. Now in this case the plaintiffs have claimed Rs. 1,089 as out of pocket expenses in connection with the betrothal. They endeavoured to prove payments of various items making up that sum, but the learned Judge was by no means satisfied that such payments had been made. He says:
The sum of Rs. 1089 is made up of a series of small items ranging over a number of years. The items were spent on food and small presents of cloth and cash. They include a sum of Rs. 4-6-6, the railway fare of Haribhai who went to Bombay from Surat on 7th February 1913 to talk to the defendant No. 1. Mangalagowri swears that she did not visit the plaintiffs' house on several occasions charged for. She was then in mourning, 'x he accounts produced on behalf of the plaintiffs were not at all regularly kept in the ordinary course of business. There is no evidence to show that any ornaments or any durable clothes of value, clothes that have not been worn out long before suits have been presented to the girl. The account seems to have been made up from memory.
6. Therefore the plaintiffs who bid to prove their claim fell very far short of what was required of them, and it is impossible for us in first appeal to take an account, as, in the first place, we have not got the proper materials which the plaintiffs should have produced in the lower Court. Therefore as Rs. 25 were at least admitted in the written statement as having been paid for clothes, and as it is certainly probable that some small sums were paid from time to time during all these years of the betrothal, I asked the respondents' counsel whether they were not prepared to make an offer in order to prevent further trouble. Mr. Jayakar offered to pay Rs. 250 and I think the appellants' pleader was certainly right in accepting that offer, because if the case had gone on, it was probable they would not have gained more than Rs. 25 admitted in the written statement. Therefore there will be a decree for the plaintiffs for Rs. 250 and proportionate costs throughout. As regards the plaintiffs' claim to two items of Rs. 10,000 the appeal abates. The respondents will get their costs on these two items in the ordinary way as when an appeal abates, and has not been decided on the merits.