TNANIKACHALAM Vs. OFFICIAL RECEIVER CHENGALPATTU

JUDGEMENT

(1.) The plaintiffs are the appellants in this second appeal.

(2.) It appears that one Munusami Mudaliar had three sons, namely, Kannappa Mudaliar, Kandasami Mudaliar and Balasundara Mudaliar. All the said three brothers were, on an application by a creditor, adjudged insolvents for the debts alleged to have been contracted for the benefit of the joint family by the joint family manager Kannappa Mudaliar. Subsequently, the joint family properties were brought to sale by the Official Receiver and one of the items of the properties was sold and purchased by the 7th defendant in the suit. The two plaintiffs herein are the sons of Kandasami Mudaliar. It appears they filed O.S. 301 of 1970 on the file of the District Munsiff Court, Kancheepuram for declaration of the title and for delivery of possession of the suit properties on the allegation that the properties belonged to their grandfather Munuswami Mudaliar and he had executed a Will in their favour. They also filed another suit O.S. 741 of 1971 on the file of the said Court for declaration of title and for an injunction restraining the defendants therein from interfering with their possession and enjoyment, on the same ground that their grandfather, who was the owner of the properties, executed a Will in their favour. Both the suits were tried together and they were dismissed on the finding that the suit properties were the joint family properties and not self-acquired properties of Munuswami Mudaliar. Thereupon, the plaintiffs filed the present suit for partition of the suit properties in view of the finding in the judgement rendered in the above two suits that the properties were joint family properties. They have claimed 7/36 shares. The trial Court dismissed the suit on the ground that the suit is barred by res judicata in view of the decisions in the said earlier two suits. The plaintiffs filed an appeal and the lower appellate Court disagreed with the trial Court that the suit was barred by res judicata, but, however, it held that in the insolvency proceedings the plaintiffs shares, they being the sons of one of the insolvents, namely, Kandasami Mudaliar, also vested in the Official Receiver, and therefore, they have no right to claim partition. In the result, the appeal was dismissed. It is against this judgement of the lower appellate Court, this second appeal has been filed by the plaintiffs.

(3.) Learned counsel Mr. V. Srinivasan, appearing for the appellants-plaintiffs, contends that what is vested in the Official Receiver is not the shares of the plaintiffs, who are the sons of the insolvent but only the right of the insolvent father to sell the shares of the plaintiffs sons.