DEVARAYAN CHETTY Vs. VKMMUTTURAMAN CHETTY

JUDGEMENT

(1.) The agreement which is sued on in this case was entered into between the plaintiff and two of the relatives of one Cellayappa Chetty. The effect is clearly stated in paragraph 5 of the judgment of the Subordinate Judge. The agreement was that the plaintiff s daughter should be married to Cellayappa s son on the 18th January 1903 and should be given usual jewel and streedhanam, etc., in the usual manner, and that in exchange Cellayappa Chetty s daughter, apparently then too young, to be married, should be given in marriage in three years from the date of the plaintiff s daughter s marriage, i.e., on or before January 1906, and that in default of either, the plaintiff to accept that girl or of Cellayappa s relations and the defendants to give her in marriage, the defaulter, i.e., the plaintiff or the defendants, as the case may be, should pay the other Rs. 5,000 in case of the plaintiff s default, with interest from 1906 January, and in case of the default of the defendants and Cellayappa Chetty s party, with interest from the date of the plaintiff s daughter s marriage, i.e., the 18th January 1903.

(2.) The plaintiff s daughter was married to Cellayappa s son but died soon afterwards. The plaintiff thereupon took back the marriage presents. After the expiration of the three years, the plaintiff made a formal demand with defendants that Cellayappa s daughter should be given in marriage to his son. This was not done. Hence this suit. The Judge held that in law the agreement was not against public policy and could be enforced; but he held on the facts that the carrying out of the contract had been abandoned by agreement between the parties.

(3.) As regards the question of abandonment I am unable to agree with the learned Judge. The defendant s evidence that the plaintiff had stated that he did not desire that the agreement should be carried out is not supported by the witness whom he called. The Judge appears to have relied to some extent on a suggested practice or usage that, the return of the presents indicated that tie parties did not intend that the agreement should be carried out. This practice or usage was not pleaded and was not proved. On the evidence I do not think it can be held that the agreement was abandoned.