1. This is an appeal against the judgment of Ganapatia Piliai J. in S. A. No. 16 of 1956. It arises out of a suit filed by the appellant before us -- O.S. No. 63 of 1953 in the Court of the Subordinate Judge of Cuddalore--for partition and separate possession of her half share in the suit properties and for past and future mesne profits. The appellant, who will be referred hereafter as the plaintiff, is the wife of the respondent-first defendant. She filed a suit--O.S. No. 137 of 1950 in the same court for separate maintenance.
Though the suit was originally contested by the first defendant, when the suit was taken up for trial, ho agreed that the plaintiff would be entitled to claim separate maintenance, but left for the decision of the Court the rate of maintenance and the properties, which are to be charged, for recovery of the maintenance. The learned Subordinate Judge fixed the rate of maintenance at Rs. 150 per month and also directed that the maintenance may be charged on the properties mentioned in a compromise, the terms of which were put before the Court and also on certain properties, which had been alienated by the first defendant. A deed of compromise was filed into court with a prayer that a decree may be passed in terms thereof. Eventually a decree was passed on 21-12-1951, the material part of which runs as follows:
'It appearing that the parties have agreed tocompromise the matter of the suit and that theyhave filed into court a deed of compromise praying that this Court will pass a decree in termsthereof this Court doth in pursuance of the saiddeed of compromise, order and decree amongother terms contained in the compromise set outbelow as follows:
1. That the maintenance payable by the first defendant to the plaintiff is fixed at Rs. 150 per mensem and the same shall be paid from 5-7-1950 by the first defendant.
2. That the properties mentioned in the compromise and also properties of the first defendantalienated to the various persons shall be acharge for the payment of the above maintenance'. The terms of the compromise were embodied inthe decree. They inter alia provided that theplaintiff and the first defendant should enjoy incommon the lands set out in the schedule attach ed to the compromise towards the maintenance payable by the first defendant to the plaintiff and towards the maintenance, of the first defendant himself and that, if necessary, the plaintiff shall get her half share of the properties after partition, lease out and enjoy the income therefrom, that neither the plaintiff nor the first defendant shall have the right to alienate independently the properties during their life time and that if it became necessary, the properties could be alienated by both the plaintiff and the first defendant jointly consenting.
It was further provided therein that the half share to which the first defendant was entitled and the half share, to which the plaintiff was entitled for her maintenance should be taken after their life time by the heir or heirs of the first defendant. The suit out of which this appeal arises was filed for partition and separate possession of a half share of the suit properties, on the following allegations after a reference to the material terms of the compromise.
After the compromise decree, as there were several debts owing by the first defendant, which had to be discharged, both the plaintiff and the first defendant jointly made certain alienations for the purpose and that the only items of lands that remained were the properties in the suit. As it was not possible for the plaintiff to live with the first defendant, she was living separately with her parents at Panruti. On 17-12-1952, the second defendant, who is the elder brother of the first defendant purported to obtain a sale deed of the suit properties from tho first defendant for an alleged consideration of Rs. 5,000.
The sale is void and not binding on the plaintiff and she was entitled to ask for partition of the properties ignoring the sale. The first defendant remained ex parte and the suit was contested only by the second defendant, his brother. The main plea raised in his written statement was that the arrangement embodied in the terms of the compromise was a private arrangement beyond the scope of the suit and, as the compromise was not registered, it was of no effect a'cl not enforceable and the plaintiff did not acquire any proprietary interest in the suit property.
He, therefore, asserted that tho sale in his favour was not liable to be set aside as void. The learned Subordinate Judge of Cuddalore decreed the suit so far as the relief of partition and separate possession was concerned and directed that mesne profits could be inquired into under Order XX Rule 12 C.P.C. The learned Judge held that the compromise did not require registration. The second defendant filed an appeal to the District Judge, South Arcot, who confirmed the decision of the learned trial Judge.
Before the learned District Judge, the only point raised was whether the decree in O. S. No. 137 of 1930 was compulsorily registrable, and as it was not registered the same is not enforceable by the plaintiff. The learned District Judge agreed with the decision of the trial Court that the compromise did not require registration, because the properties comprised therein Were the subject matter of the suit and the case fell within the exemption under Section 17(2)(vi) of the Registration Act.
The second defendant thereupon filed a second appeal (No. 16 of 1956) to this Court. Subsequent to the filing of the second appeal, the second defendant filed a petition (C.M.P. No. 6969 of 1956) praying that the suit may be dismissed on account of certain events which were alleged to have happened. In the affidavit filed in support of this application it was alleged that subsequent to the filing of the second appeal, the plaintiff and the first defendant i.e., the wife and the husband, had resumed cohabitation as a result of which the plaintiff had conceived a child and consequently the comprimise decree for maintenance obtained by the plaintiff became ineffective and nullified.
In the counter affidavit filed by the plaintiff, the wife, it was admitted that she was enciente through her husband, but stated that this was the result of a casual union, which took place in her mother's house. She denied that she and her husband had been living together. There was a reply affidavit filed by the second defendant asserting that the husband was spending considerable time in the company of his wife. Ganapatia Pillai, J., took up the above objection first and came to the conclusion that by reason of the resumption of cohabitation by the plaintiff and the first defendant, the very basis of the decree in O S. No. 137 of 1950 had ceased to exist and in that view he allowed the second appeal and dismissed the suit, without dealing with the question which had been raised in the original memorandum of second appeal. The learned Judge, however, granted to the plaintiff leave to appeal in pursuance of which she has filed the present Letters Patent Appeal.
2. It was admitted by learned counsel tor the respondent that the point, which he sought to raise in and by C.M.P. No. 6969 of 1956 was not available to him either at the time of the institution of the suit, nor even subsequently till after the filing of the second appeal. He contended that nevertheless this Court could take notice of subsequent events, which had happened and decide the case, having regard to such events. It is obvious, that there is no invariable or inflexible rule that subsequent events should never be taken into consideration or that they should always be taken into consideration.
Each case must depend upon the peculiar circumstances present in the particular case. The question is whether, in the case before us, the subsequent events should be considered by this Court in disposing of the second appeal. Ganapatia Pillai, J. evidently thought they could be. With respect to the learned Judge, we are of a different opinion. We shall give briefly the reasons, which have impelled us to come to this conclusion.
3. The plea raised by the second defendant in the petition C.M.P. No. 6969 of 1956 is based upon the ruling of this court in Venkayya v. Baghavamma, ILR 1942 Mad 24 : (AIR 1942 Mad 1) which was followed and applied in two decisions of two learned Judges of this Court by Krishnaswami Nayudu, J. in Perundevi Amma v. Amavasikan, : AIR1957Mad113 and by Basheer Ahmed Sayeed, J. in S. A. No. 305 of 1949 (Mad). It appears to us that much can be said on both sides regarding the applicability of the rule laid down in ILR 1942 Mad 24 : (AIR 1942 Mad 1) to the facts of the present case.
If the rule is that a decree for separate maintenance passed in favour of a Hindu wife ceased to be effective once the wife goes and lives with her husband because the very basis of the decree has disappeared, viz., the living apart by the wife on justifiable grounds, then the question will arise in this case whether the plaintiff has gone back to live with her husband. It is not clear to us if a decree for separate maintenance would automatically be extinguished by the mere fact that alter the decree the husband and the wife have sexual intercourse, though the wife continues to live apart from the husband.
The term 'cohabitation' has been used in several of the decisions dealing with the subject but it is a matter for argument what exactly is meant by cohabitation in so far as it is material for the application of the rule. We refer to this aspect because on the affidavit it does not appear--and certainly it is not admitted--that the plaintiff and the first defendant are living to gether and that she is being maintained by her husband. On the other hand, her allegation is that she continues to live with her parents and the first defendant is living with his brother, the second defendant, separately.
In this view, it may be necessary to determine the question of fact whether the wife has gone back to her husband. To decide that question it may be necessary to take evidence. Gana-patia Pillai, J. appears to have thought that once it was admitted that there was a conception and subsequently a child birth, it necessarily followed that the plaintiff was living with her husband.
4. Then there is also the question whether this rule laid down in ILR 1942 Mad 24 .: (AIR .1942 Mad 1) which itself was based oa English Matrimonial law would apply to the case of a consent decree like the decree, which is the foundation of the plaintiffs claim in this suit. There was no adjudication by the Court that there were valid grounds, which would justify the wife living away from her husband. The suit was really not contested so far as the liability was concerned. The terms of the compromise which were embodied in the decree are also peculiar. Mr. M. S. Venkatarama Iyer, learned counsel for the appellant, described the compromise as a family settlement.
It is not necessary for us to say whether, in law, it can he said to be such. Suffice it to say that there are these and other questions of fact and law which will have to be decided before the rule in ILR 1942 Mad 24 : (AIR 1942 Mad 1), is applied to this case. In these circumstances, We are convinced that this is not a case in which the Court should take into account subsequent events and mould the relief in accordance with them. Whether the second defendant would be entitled to any relief in other proceedings, it is no1t for us to say now.
If he has any right, any decision 3n the second appeal would not by itself adversely affect such right. We think that it is just and equitable that the second appeal should be heard on its original memorandum of appeal. As the learned judge, Ganapatia Pillai, J. considered it unnecessary to deal with the merits of the case, in view of his finding that the suit should be dismissed on account of subsequent cohabitation, the second appeal should be remanded tor disposal without reference to subsequent events.
5. We allow the above appeal, set aside thejudgment and decree of Ganapatia Pillai, J. inS. A. No. 16 of 1956 and direct that it be restored to file and heard and disposed of in accordance with law. The appellant will get the costsof this Letters Patent Appeal from the respondent. The costs of the second appeal will abidethe result. The appellant will be entitled to arefund of the court-fee paid on the Memorandumof Letters Patent Appeal.