MARIA PACKIAM Vs. VALLAIAMMAL

JUDGEMENT

(1.) THE first defendant in Original Suit No. 384 of 1977 on the file of the learned District Munsif , Tenkasi is the appellant in the second appeal.

(2.) THAT suit was filed by the first respondent plaintiff for the reliefs of declaration of her right to be in possession of the property in Schedule-I of the plaint and for permanent injunction restraining her husband the second respondent-second defendant and the appellant-first defendant from interfering with her peaceful possession and enjoyment of the same or in the alternative for possession.

(3.) IN the instant case, there is no manner of doubt whatever that the plaint Schedule-I property, which is included as item 3 in Schedule ii in the plaint and other three items of properties mentioned in Schedule II belonged absolutely to the 2nd defendant. It is also not in dispute that at the time when the Settlement Deed under Ex. A-1 was executed in favour of the plaintiff, criminal prosecution initiated by the plaintiff against the 2nd defendant for the offence by bigamy under Sec. 494, IPC was pending before learned Sub Divisional Judicial Magistrate, Shencottach in C. C. 165 of 1963. A perusal of Ex. A-1 would also unmistakably reveal that in lieu of the Settlement of the properties mentioned therein by the 2nd defendant in favour of the plaintiff, the pending criminal case was to compounded in court. The evidence of P. W. I also throws a flood of light on this aspect of the matter. No doubt it is true that no best evidence, in the shape of documents had been placed before court for the proof of the fact that the bigamy case pending before court was compounded between the plaintiff and the 2nd defendant after obtaining the requisite permission under Sec. 320, Crl. P.C. Pertinent it is to mention at this juncture that the offence under Sec. 494, IPC is compoundable offence with permission of the court. The mere non-production of such a best evidence for proving the compounding of the offence after obtaining necessary permission of the court can be at no stretch of imagination, in the circumstances of the case, be stated to have created an irreparable dent in the case of the plaintiff. The averments in Ex. A-1 coupled with the convincing evidence of the plaintiff as P. W. I that plaint Schedule II properties had been settled in favour of the plaintiff by the 2nd defendant, as a reparation to the injury done to her by having contracted a marriage with another woman during the subsistence of his marriage with the plaintiff in lieu of the plaintiff agreeing to have the matter compounded before court with the 2nd defendant would clinchingly show that the plaintiff and the 2nd defendant did not at all want to terminate the criminal proceedings otherwise than in accordance with law, Only if they did contemplate to terminate the criminal procedings otherwise than in accoradnce to give evidence before the court in such a way as to have the case ended in acquittal with a view to stifle the prosecution, then there will be some force in the argument of the 1st defendant's learned counsel. There is no evidence on the part of the 1st defendant as D. W. I that the pending criminal prosecution had been terminated otherwise than by way of a compromise after getting the requisite permission of the court. IN such circumstances, it cannot be stated that the settlement of properties by the 2nd defendant in favour of the plaintiff under Ex. A-1 will fall within the ambit of section 23 of the INdian Contract Act. IN this view of the matter, the argument of learned counsel for the appellant that the transaction covered by the document Ex. A-1 would fall within the mischief of Sec. 23 of the INdian contact Act cannot at all be countenanced.