Effect of subsequent resumption of cohabitation.

The appellant in this second appeal is the second defendant in O.S. No. 83 of 1953 on the file of the Sub-Court, Cuddalore, which was a suit instituted by respondent 1, Minakshi Ammal, wife of Palaniswami Chettiar, for the relief of partition of certain properties into two equal shares and recovery of possession of one such share together with mesne profits. The allegation in the plaint was that the plaintiff was the wife of the second respondent to this appeal, Palaniswami Chettiar, that she had instituted O. S. No. 137 of 1950 on the file of the Sub-Court, Cuddalore, against her husband for separate maintenance, and that as a result of the compromise decree in that suit, the plaintiff obtained the right to enjoy, together with her husband, the properties in dispute, and, in case joint enjoyment was found to be inconvenient, to claim a partition of a half share of those properties. The appellant in this second appeal is the elder brother of the husband of the first respondent. He was examined as a witness on behalf of the first respondent in O.S. No. 137 of 1950 and he is said to have taken a leading part in bringing about the compromise in that suit. Subsequent to the decree in O.S. No. 137 of 1950, the present appellant is said to have purchased some properties covered by the compromise deed, over which the first respondent had obtained the compromise decree for joint enjoyment and, in the alternative, for partition. The further allegation in the plaint was that the sale in favour of the appellant was not supported by consideration, and, in any event, was not valid and binding on the plaintiff. The appellant resisted the suit on the principal ground that the decree passed in O.S. No. 137 of 1950 was not a compromise decree and that consequently the claim of the plaintiff for partition was based upon a private arrangement between the plaintiff and her husband and that, since this arrangement which was reduced to writing was not registered, it was not valid. Other defences were also raised ; but it is not necessary to notice them now for the purpose of this second appeal. Both the lower Courts held concurrently that the decree in O.S. No. 137 of 1950 was a compromise decree passed under Order 23, rule 3, and that it did not require registration. Consequently, both the Courts decreed the claim of the first respondent for partition.

Subsequent to the filing of this second appeal, the appellant preferred C.M. P. No. 6969 of 1956 with the prayer that the suit, O.S. No. 83 of 1953, out of which this appeal arises, should be dismissed. The affidavit in support of this application, sworn to by the appellant in this second appeal sets forth, among other grounds, that, subsequent to the filing of the second appeal, the first and second respondents, namely the wife and the husband had resumed cohabitation, as result of which the first respondent had conceived a child and the pregnancy was seven months old. Consequently, the compromise decree for maintenance obtained by the first respondent is said to have become ineffective and nullified. In the counter-affidavit filed by the first respondent, the wife, it is admitted that she is enceinte through her husband, the second respondent, though she explains that this was the result of a casual union which took place in her mother’s house. She denies that she and her husband have been living together either before this union or after it. The appellant filed a reply affidavit refuting this allegation of a casual union between the husband and wife and asserting that the husband was spending considerable time in the company of his wife.

The learned counsel for the appellant contends that, on the admission of the first respondent that she had resumed cohabitation with her husband subsequent to the filing of the second appeal, she has lost the cause of action upon which the decree for separate maintenance in O.S. No. 137 of 1950 was founded. Before going into the merits of this contention, I