DEVARAYAN CHETTI Vs. VKMMUTHURAMAN CHETTI

JUDGEMENT

(1.) The agreement which is sued on in this case was entered into between the plaintiffs and two of the relatives of one Vellayappa Chetti. Its effect is clearly stated in paragraph 5 of the judgment of the Subordinate Judge.

(2.) "The agreement was that the plaintiff s daughter should be married to Vellayappa s son on the 18th January 1903 and should be given usual jewels and streedhanam etc., in the usual manner and that in exchange Vellayappa Chetty s daughter apparently then too young to be married should be given in marriage in 3 years from the date of the plaintiff s daughter s marriage, i.e., on or before January 1906, and that on default of either, the plaintiff or the defendants as the case may be, should pay the other Rs. 5000 in case of the plaintiff s default with interest from January 1906, and in case of the default of the defendants and Vellayappa Chetty s party with interest from the date of the plaintiff s daughter s marriage i.e., the 18th January 1903". The plaintiff s daughter was married to Vellayappa s son but died soon afterwards. The plaintiff thereupon took back the marriage presents. After the expiration of the three years, the plaintiff made formal demand on the defendants that Vellayappa 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 defendants 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 the 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 that the agreement was abandoned.