The central legal point established in the judgment is the interpretation of the release deed (Ex.B.1) and the affidavit (Ex.C.1) in determining the properties covered and the modification of the decree based on the evidence presented.

M.M. Sundresh, J.

1. The suit properties originally belonged to one A.Rengasamy Reddiar (since deceased). He had four sons, out of whom, two died without issues. The plaintiffs are the grand children of one of the sons of A.Rengasamy Reddiar by name Appu Reddiar. The defendants 2 to 4 of whom the appellants are the legal heirs were the children of another son by name Venkatrayalu Reddiar of A.Rengasamy Reddiar. The respondents 1 to 3 filed the suit in O.S.No.76 of 1974 claiming 3/8th share in respect of various items of the suit properties by also adding their father as a party-defendant.

2. Pending the suit, a release deed (Ex.B.1) was executed on 4.6.1974 by the respective parties viz., the plaintiffs and the defendants, as per which, they had been in enjoyment of the parties by way of exchanges and conveyance. Pursuant thereon, an application was filed by defendants 2 to 4 in I.A.No.85 of 1976 to pass a compromise decree in terms of the release deed - Ex.B.1 dated 4.6.1974. The application was allowed as per the Order dated 1.12.1976 and a compromise was taken on file. In ignorance of Ex.B.1 and the earlier order passed in I.A.No.85 of 1976, a decree for partition was granted by the trial Court on 28.2.1977. Accordingly, a partition was granted in respect of items No.1 to 31, 41 and 42 in the Schedule mentioned in the written statement filed by the defendants. Consequently, the suit was dismissed qua the other items of the suit properties. The plaintiffs did not choose to challenge the dismissal of the suit with respect to those items.

3. An appeal was laid by defendants 2 to 4 before this Court in A.S.No.1129 of 1977. The primary ground taken in the appeal was the non-consideration of Ex.B.1 - release deed and the order passed in I.A.No.85 of 1976. This Court was pleased to allow the appeal by setting aside the judgment and decree of the trial Court remitting the matter for fresh consideration by taking note of Ex.B.1 - release deed.

4. The following is the operative portion of the judgment rendered in A.S.No.1129 of 1977:

“..... matter is remitted to the learned Subordinate Judge, Chidambaram to consider as to what are all the properties available for partition between the parties, excluding the properties agreed to be enjoyed by the parties under Ex.B-1”.

5. On remand, the suit was transferred to Sub-Court, Viruthachalam and renumbered as O.S.No.77 of 1984. Defendants 2 to 4 let in additional documents apart from oral evidence through D.W.11. The affidavit filed in support of I.A.No.85 of 1976 was marked as Ex.C.1. The following paragraphs in the affidavit filed by D.W.11 are apposite:

''...3. On the same day his father Rengasamy Reddiar who was present on that occasion has signed the patta transfer form for R.S.No.17/5 - 0.52 cents in the village of Koonamkurichi. According to the Compromise deed I should get this property. But as Patta stood in the name of 1st Plaintiff's father, his father has signed. I have also signed said transfer form. This Survey Number finds a place in the compromise deed and I have signed.

4. On the same day I have signed the Patta transfer form in the name of 1st Plaintiff for R.S.No.5/5- 0.1 cent out of 0.3 cents (2) R.S.No.40/11 - 0.14 cents out of 0.42 cents in the village of Oomangalam. I have signed the another patta transfer form for R.S.No.177/2 - 01.71 cents, (3) R.S.No.159/2 - 0.22 cents out of 0.35 cents in Koonamkurichi village. 1st Plaintiff signed all the documents. All these survey numbers are found in the documents executed by me in favour of 1, 2 and 3 Plaintiffs and which is not before the court.

5. I did not realize the importance of the documents and therefore I did not mention the same to my lawyer before he cross examined the 1st plaintiff.

6. I am advised that the said document would negative 1st plaintiff version that the compromise deed was obtained from him by means of threat....”

6. In the release deed (Ex.B.1), the properties in possession of parties based