Ex-parte decree for specific performance of unregistered release agreement does not create title in immovable property unless executed and registered; time-barred execution leaves co-owners' partition rights intact, not barred by res judicata.

JUDGMENT : 

S.SOUNTHAR, J.

The children of the deceased 1^st defendant and 2^nd defendant are the appellants. The 2^nd plaintiff and legal heirs of deceased 1^st plaintiff are the respondents.

2. For the sake of convenience, the parties are referred to as per their ranking before the trial Court.

3. The respondents/plaintiffs filed a suit seeking declaration that settlement deed dated 05.08.2009 executed by 1^st defendant in favour of 2^nd defendant was null and void and for partition of their 2/3^rd share in the suit property. They also sought for permanent injunction restraining the defendants from altering the character of the suit property in any manner. The suit was dismissed by the Trial Court. The plaintiffs preferred an appeal before First Appellate Court. The First Appellate Court reversed the findings of the Trial Court and allowed the appeal. As a necessary consequence, the suit was decreed. Aggrieved by the same, the appellants/defendants have come before this Court.

Averments found in the plaint:

4(i). According to the plaintiffs, they and the 1^st defendant are brothers, the 2^nd defendant is the wife of the 1^st defendant. The plaintiffs and 1^st defendant jointly purchased total extent of 2.08 acres in S.F.Nos.426/2, 472/2 and 429/2 situated in Oddarpalayam Village, Coimbatore Taluk under registered sale deed dated 30.09.1981. Thus, the plaintiffs and 1^st defendant are entitled to 1/3^rd share in the property purchased by them. Subsequently, the plaintiffs and 1^st defendant had jointly sold an extent of 0.63 acres in S.F.No.426/2, an extent of 0.55 acres in S.F.No.429/2 and another extent of 0.40 acres in S.F.No.429/2 in favour of 3^rd parties under three different sale deeds in the year 1994- 1995. The balance extent now available with the plaintiffs and 1^st defendant is only 0.50 acres (i.e 0.40 acres in S.F.No.429/2 and 0.10 acres in S.F.No.427/2).

4 (ii). In the year 1996, a difference of opinion arose between the plaintiffs and the 1^st defendant, as a result of which, the 1^st defendant filed a vexatious suit against the plaintiffs, seeking direction to the plaintiffs to execute the release deed in respect of their share in the suit property in favour of the 1^st defendant pursuant to the alleged agreement dated 23.08.1995 in O.S.No.95/1996 on the file of District Munsif Court cum Judicial Magistrate Court, Palladam. According to the plaintiffs, there was no such agreement. Though the plaintiffs appeared in the said suit through a counsel initially, subsequently, the 1^st defendant approached the plaintiffs for amicable settlement and believing the words of 1^st defendant, the plaintiffs did not continue to defend the suit.

4(iii). It was claimed by the plaintiffs that later it became impossible to enjoy the property jointly and hence approached the 1^st defendant seeking partition of the suit property into three equal shares and allotment of two such shares to them. The 1^st defendant postponed the partition under some pretext or other. Hence, the plaintiffs applied for encumbrance certificate and found that the 1^st defendant executed a gift deed in favour of 2^nd defendant on 05.08.2009.

4(iv). It was also stated by the plaintiffs that at the best, 1^st defendant can convey only his 1/3^rd share in favour of the 2^nd defendant. It was also stated in the recitals found in the settlement deed that the suit property had come to the share of 1^st defendant under a oral partition. The plaintiffs denied any such oral partition and in these circumstances, the present suit was filed seeking the above said reliefs.

Averment found in the written statement of the 1 s t defendant and adopted by the 2 ^nd defendant :

5(i). The defendants admitted in the written statement that the plaintiffs and defendants jointly purchased 2.08 acres in the above mentioned three survey numbers. However, it was further stated that the plaintiffs sold their 2/3^rd share in the entire extent of 2.08 acres to various parties and subsequently executed an unregistered release