RAJAGOPALAN Vs. ALAGAMMAL ACHI

JUDGEMENT

(1.) The seventh defendant in O.S. No. 511 of 1983 on the file of the District Munsif, Pudukottai is the appellant herein. The first respondent who died pending the second appeal filed the said suit for partition and separate possession of 1/5th share in the suit property. The case of the deceased first respondent is that she is the widow of one Nagapa Chettiar, who is the owner of the property. The respondents 2 to 5 are her sons. Her husband died in the year 1952, leaving herself and the respondents 2 to 5 as legal representatives. An insolvency proceeding was initiated against the third defendant in the suit the fourth respondent was herein I.P. No. 3 of 1977. The fourth respondent was adjudged as an insolvent and his 1/4th share in the suit property brought to sale. The appellant herein/7th defendant in the suit purchased his share and the sale certificate had been issued on 18-8-1980. Since the first respondent is entitled for 1/5th share, the sale of 1/4th share of the fourth respondent will not find the first respondent.

(2.) The defendants 1,3 and 6 remained ex-parte; whereas respondents 2 and 4 filed the written statement sailing with the first respondent. Only the contesting defendant is the appellant herein who disputed the claim of the first respondent on the ground that the fourth respondent herein was adjudged as an insolvent and his 1/4th share was brought to sale. Hence he is entitled for 1/4th share in the suit property. Since the suit property being a residential house, if the partition is not possible, the property may be sold and 1/4th share of the sale consideration can be paid to him.

(3.) On the above pleadings, the Trial Court, after considering the evidence decreed the suit, declaring that the first respondent is entitled to 1/25th share and the appellant is entitled for 1/8th share. The judgment in the suit O.S. No. 435 of 1981 filed for partition by the fourth respondent in respect of the suit property will not operate as res judicata.