ORDER
1. The seventh defendant in O.S.No.511 of 1983 on the file of the District Munsif, Pudukoitai 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 properly. 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 proceedings was initiated against the third defendant in the suit the fourth respondent herein in I.P.No.3 of 1977. The fourth respondent was adjudged as an insolvent and his 1/4 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 18.8.80. 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 & 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 l/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 rejudicate.
4. Aggrieved by the same, the first respondent filed an appeal. In the appeal, the lower appellate court modified the decree of the trial court and granted a decree that the first respondent is entitled for 1/5th share and the appellant is entitled to 1/10th share on the ground that the suit property is the joint family property of the husband of the first respondent. Hence the first respondent along with her sons, respondents 2 to 5 entitled to 1/5th share each. The fourth respondent’s son is entitled to half share from out of the 1/5th share of the fourth respondent. Hence the appellant who purchased the fourth respondent’s share is entitled for his 1/10th share. The trial court proceeded on the basis that the suit property belongs to the husband of the first respondent and the same being joint family property, as declared in O.S.No.435 of 1981 the respondents 2 to 5 will be entitled to 1/5th share each and after the death of
the father, the first respondents 2 to 5 are entitled for equal share of the deceased father’s 1/5th share. As such the first respondent is entitled to 1/25th share and the appellant is entitled for 1.8th share.
5. At the time of admission of the second appeal the following
substantial questions of law were formulated:
(1) Whether Exhibits A1 and B3 operate as rejudicate? and
(2) Whether the lower appellate court was right in allowing the appeal when the plaintiff-lst respondent did not file an appeal against the decree in favour of the appellant 7th defendant in the partition suit which challenged the said decree?
6. The short question for consideration is whether the plaintiff/first respondent is entitled to 1/5th share by virtue of Section 3(1) of the Hindu Women’s Rights to Property Act, 1937 as found by the lower appellate court or whether she is entitled for 1/25th share, as held by the trial court.
7. There is no dispute that the suit property is joint family properly which is clear from the discussion of the lower appellate court in paragraph 9 of the judgment. The lower appellate court proceeded on the basis that the first respondent, the widow is entitled to 1/5th share of her husband, on his death, excluding the sons, the respondents 2 to 5 herein who are entitled to 1/5th share each.
8. Section 3 of the said Act deals with the devolution of property on the widow of a Hindu who dies intestate. The same is as follows:
“3(1) When a Hindu governed by the Dayabhaga school of Hindu law dies intestate leaving any property, and when a Hindu governed by any other school of Hindu law or by customary law dies inteslate leaving separate property, his widow, or if there is more than one widow, all his widows together, shall, subject io Ihe provision of sub-section (3), be entitled in respect of property in respect of which he dies intestate io the same share as a son;
Provided that the widow of a predeceased son shall inherit in like manner as a son if there is no son surviving of such predeceased son, and shall inherit in like manner as a son’s son if there is surviving a son or son’s son of such predeceased son;
Provided further that the same provision shall apply mutatis mutandis to the widow of a predeceased son of a predeceased son.
(2) when a Hindu governed by any school of Hindu law other than the Dayabhaga School or by Customary law dies having at the time of his death an interest in a Hindu Joint family properly, his widow shall, subject Io the provisions of sub-section (3), have in the property the same interest as he himself had.
(3) Any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu Woman’s estate,
provided however that she shall have the same right of claiming partition as a male owner.
(4) The provisions of this section shall not apply to an estate which by a customary or other rule of succession or by the terms of the grant applicable thereto descends to a single heir or to any property to which the Indian Succession Act, 1935, applies.”
9. The lower appellate court had obviously made a patent mistake while construing sub-section (2) of Section 3 of the said act by coming to the conclusion that the first respondent is entitled to the share of her deceased husband i.e. 1/5th in entirety. Section 3(1) makes it clear that if a Hindu dies intestate leaving separate property, then his widow or if there is more than one widow, all his widows together, shall, subject to the provisions of sub-section (3), be entitled in respect of property in respect of which he dies intestate to the same share as a son. Sub-section (2) empowers the widow to have the property, the same interest as that of her deceased husband. When this provision specifically deals with the separate property of a Hindu male, there cannot be any dispute that the first respondent will be entitled for 1/5th share of her deceased husband if the suit property is his separate property. As already pointed out, when admittedly the suit property is joint family property, there cannot be any dispute that the respondent 2 to 5 will be entitled to 1/5th share each and their father will be entitled to 1/5th. On his death, his legal representatives viz., the first respondent, the widow, the respondents 2 to 5 her sons, each will be entitled to 1/5th share from out of 1/5th of the deceased. In that case, the first respondent will be entitled to only 1/25th share, as rightly held by the trial court.
10. The trial court found that the appellant is entitled for 1/8th share on the basis that the insolvent, the fourth respondent is having a son who is entitled for half share in the property. The lower appellate court also proceeded on the same basis and granted 1/10th share to the appellant on the ground that the fourth respondent is entitled to 1/5th share. Of which the fourth respondent and his son each entitled to equal share. Hence the appellant being the auction purchaser is entitled to the share of the fourth respondent.
11. In my view, both the courts below have erred in coming to such conclusion. Admittedly the fourth respondent was adjusted as an insolvent and his share viz., 1/4th share was brought to sale. The appellant purchased the same. Neither the son of the fourth respondent challenged the sale of 1/4th share of the fourth respondent nor he claimed any share from out of that 1/4th share. Equally, in this proceeding also the son of the fourth respondent did not put forth any claim for his half share. Even assuming that he is entitled to the half share from out of the 1/4th share of the fourth respondent, when the fourth respondent who was adjusted as an insolvent and the entire share of his being sold, unless it is established that the debt incurred by the fourth respondent
was not for the benefit of the family, his son is not entitled for any share. Only if it is established that the debt incurred by the fourth respondent is not for the benefit of the family benefit, then only he is entitled for his share. In the absence of any of these materials, the courts below ought to have found that the appellant is entitled for the 1/4h share, as purchased by the appellant.
12. In view of this finding, it is unnecessary to go into the other
questions. Accordingly the second appeal is partly allowed and the tower
appellate court decree us set aside and the trial court decree is modified. There
will be a preliminary decree in favour of the first respondent for 1/25th share
and the appellant is entitled for 1/4th share in the suit property. The parties are
directed to bear their cost throughout.