Chellammal vs Muthulakshmi Ammal

Alfred Henry Lionel Leach, C.J.—This is an application for an order cancelling the leave granted to the respondent to appeal in forma

pauperis. The petitioner in O.P. No. 258 of 1942 on the Original Side of this Court applied for letters of administration to the estate of her

deceased husband R.P.P. Adikesavalu Chettiar. The respondent entered a caveat and opposed the application. Her opposition was unsuccessful

and the Court ordered letters of administration to issue to the petitioner. The respondent then applied to be allowed to appeal in forma pauperis

against this order. She swore an affidavit in which she stated that all the property she possessed was clothing worth Rs. 40. The petitioner had no

knowledge then of the respondent''s financial position and as the Government Solicitor did not object to a declaration of the respondent''s

pauperism, she was allowed to appeal in forma pauperis. It has since come to the knowledge of the petitioner that on the 8th February, 1944, the

respondent sold certain immovable property for the sum of Rs. 1,300. This was some two months after she had been allowed to appeal in forma

pauperis. The purchaser was her son. It is in these circumstances the petitioner asks the Court to set aside the order allowing the respondent to

appeal as a pauper.

The relevant facts are set out in an affidavit sworn by the petitioner. The respondent herself has not denied the allegations of the petitioner, but

she has filed an affidavit sworn by her son. He alleges that the house belonged to his father and it was mortgaged to the Co-operative Society,

Rasipuram. In his affidavit the son states that his mother is only entitled to a one-third of the equity of redemption. There is here a clear admission

on his part, and he is representing his mother in these proceedings, that when she swore the affidavit in support of her application for leave to

appeal in forma pauper is she had an interest in the property. It follows that she obtained an order from the Court without disclosing material facts.

In fact, her action amounted to a fraud on the Court. The son says that the equity of redemption is of no value; but we are certainly not prepared to

accept his word for this.

As was pointed out in Kuppuswami Naidu Vs. Varadappa Naidu and Others, the utmost good faith is required of the petitioner in the matter of

the disclosure of his or her assets and that any intentional departure from good faith, whatever the motive may be, must result in the dismissal of the

petition. Under Order 33, Rule 2 read with Order 33, Rule 5(a) of the Code of Civil procedure, it is the bounden duty of the petitioner to make a

full and accurate verified statement of his or her properties. The petitioner alleges that the respondent''s sons are really behind the appeal and this is

no doubt the case. As we have already indicated one of the sons is resisting the present application on his mother''s behalf. It is said by the learned

advocate for the respondent that she is an old woman of 80 years of age and did not realise what she was doing. We will take it that she was in the

hands of her sons but she must bear the responsibility for the present position. There has been a fraud on the Court and the question whether the

equity of redemption is substantial or of little value is beside the point.

The application is granted. If the respondent wishes to proceed with the appeal, she must pay the requisite court-fee within one week. She must

also pay the costs of this application.

The petitioner asks for an order for security for costs. We are not prepared to grant this application as it is made at such a late stage.