Family settlements on property distribution among heirs are legally enforceable, and prior dismissal of partition does not bar enforcing such settlements.

JUDGMENT :

C. PRATHEEP KUMAR, J.

1. The plaintiffs 1 to 4 in OS No.232/2006 on the file of Sub Court Ernakulam are the appellants in RFA.332 of 2010. The plaintiff in OS No.193/2008 on the file of the Sub Court, Ernakulam is the appellant in RFA. No.721/2010. (For the purpose of convenience, the parties are hereafter referred to as per their rank before the trial court in OS No.232/2006).

2. OS. No.232/2006 is a suit for partition while OS. No.193/2008 is a suit for injunction. The 1st plaintiff is the widow and the plaintiffs 2 to 5 and defendants 1 and 2 are the children of late C.P. Mathew. Defendants 3 to 5 are the widow and children of late Patric Mathew @ Freddie, the predeceased son of late C.P. Mathew.

3. Admittedly, late C.P. Mathew died intestate on 29.9.2017. Since the properties left behind by Late C.P. Mathew were not partitioned among the sharers, the plaintiffs 1 and 3 to 5 filed a suit as O.S. No.193/2008 before the Sub Court, Ernakulam against the defendants therein.

4. In the written statement filed by the defendants they have taken a contention that late C.P .Mathew had executed a Will and therefore, the schedule properties are not partible. The trial court upheld the contentions taken by the defendants and dismissed the suit. While so, mediators intervened, discussions were held at the instance of Sri. John of Matha and as a result of which the plaintiffs and defendants came to a family arrangement and executed a family settlement agreement dated 13.12.2003 in respect of two items of properties which are scheduled in OS. No.232/2006.

5. According to the plaintiffs, as per the terms of family settlement agreement, the properties were measured out and divided among the sharers and draft partition deed was also prepared and copy of the same was handed over to the defendants. However, the 3^rd defendant delayed approval of the draft deed on one -pretext or another and began to commit mischief on the property sought to be given to the 2^nd plaintiff. Consequently, the 2^nd plaintiff filed a suit as OS. No.409/2006 before the Munsiff's Court, Ernakulam seeking prohibitory injunction against the 3^rd defendant herein. In the partition suit, some properties which were kept in common, which is not the subject matter in the family settlement was not included in the suit. It is prayed that the plaint schedule item No.1 is to be divided among the plaintiffs 2 to 5 and defendants 3 to 5 alone and item No.2 is to be divided among the plaintiffs 1 and 2 and all the defendants.

6. Defendants 1 and 2 in OS. No.232 of 2006 remained ex-partie. On behalf of defendants 3 to 5, the 3^rd defendant filed a written statement contending that the suit is not maintainable. According to the defendants, an earlier suit for partition filed by the plaintiffs was dismissed and as such the present suit for partition is not maintainable, as it is barred by res judicata. It is also contended in the written statement that the agreement dated 13.12.2003 is unenforceable as it is not supported by consideration. It is also contended in the written statement that all the properties commonly owned by the plaintiffs and defendants are not included in the suit and hence the suit is bad for partial partition. It is also alleged the agreement dated 13.12.2003 appears to have been tampered with and fabricated with. According to the defendants, no draft deed was prepared or handed over to the 3^rd defendant.

7. In O.S. No.193/2008, it was alleged that the 3^rd defendant is obstructing the 2^nd defendant from doing any works in the schedule properties and also attempting to commit mischief therein. Therefore, the 2^nd plaintiff prayed for a permanent prohibitory injunc