Padmati Sangamma (died) by LR and another vs Manamma and others

The CMA is preferred against the order made by the Subordinate Judge in OP No.135 of 1991 dated 21-2-1994 dismissing the application filed under Order 33, Rule 1 seeking permission to sue as an indigent person. The brief facts of the case are as follows:

The petitioners/plaintiffs have filed a suit for declaration that the petitioner No.1 as owner of the C-schedule property and for recovery of possession in Survey 127/A to an extent of 3.34 guntas in Survey No.181/A to an extent of Ac. 16.12 guntas. The cause of action arose to file the suit on 8-6-1991 when taking advantage of the illness of petitioner No. 1 the defendant affected mutations in their names and illegally obtained possession with regard to the C-schedule property though the property is originally in the name of petitioner No,1. The learned Judge has conducted regular enquiry under Order 33, Rule 1 of CPC into the means of the petitioner so as to decide the controversy in question. Originally the suit was instituted by the petitioner Nos.1 and 2 on 28-1-1992. The petitioner No.1 died and the second petitioner who is minor who was represented by his next friend viz., Eshwaraiah who was examined as PW1 who deposed that the petitioner No.2 had no means to pay the Court fee and he did not acquire any property subsequent to the petition. During the cross-examination he stated that he did not know what were the lands in possession of petitioner No.1 and he did not know how much land possessed by petitioner No.1. He further stated that he does not know whether petitioner No. 1 was in possession of land in Survey No. 181 to an extent of Ac.6-00. On the other hand, respondent No.3 was examined as RW1 who deposed that petitioner No.1 was his mother-in-law and she died about 1 1/2 year ago and the petitioner No.2 was the son of respondent No.1 and petitioner No.1 left behind her Ac.11.18 guntas in Survey No.181 of Edulapalli village and he further stated that petitioner No.1 has received compensation with regard to the acquisition of her land by the Government in Ex.B1 to Ex.B4 which are certified copies of Pahanis for the years 1988-89, 1989-90, 1990-91 and 1991-92 respectively. He further stated that petitioner No.1 was in a capacity to pay Court fee and petitioner No.2 was also in a position to pay Court fee.

The learned Judge considering the evidence of RW1 without considering the evidence of PW1 relied upon the pahanies Ex.Bl to Ex.B4 to the effect that they pertain to Survey No.l81/A and those lands stand in the name of late petitioner No.1 and by virtue of that the learned Judge treated petitioner No.1 as pattedar of those lands and curiously observed that it is not explained how petitioner No.1 was in position to pay the Court fee since these lands stand on her name. The other ground on which the learned Judge observed that first respondent the daughter of petitioner No. 1 is in separate possession and enjoyment of B-schedule property and petitioner No.2 herein who is a minor and who is natural son of first respondent, when first respondent is having sufficient property it is also not explained how the petitioner No.2 is not in a position to pay Court fee.

The controversy relates to C-schedute property in Survey No.181/A the learned Judge while rejecting the application of the petitioner dismissed it on an erroneous assumption of law that since pahanis for the years 1988 to 1992 vide Ex.B1 to Ex.B4 stand in the name of petitioner No.1 by virtue of which the petitioner No.1 is in possession to pay the Court fee without noticing the relevant provisions contemplated under Order 33, Rule l(a) of CPC and also without examining the legal requirement as to whether by mere standing the pahanies that by itself declare that the petitioner No. 1 is in a position to pay the Court fee without appreciating or understanding that by itself cannot be the criteria so as to dis-entitle the petitioner to sue as an indigent person. The second ground assigned by the learned Judge by observing that the natural mother is possess of means and her income can be considered to determine pauperism of the second petitioner.

Counsel for the appellant Mr. Ashok Anand Kumar vehemently argued that the entire approach of the learned Judge is not in accordance with the provisions of Order 33, Rule 1 of CPC and particularly in view of explanation to 1(a). He further contended that since petitioner No. 1 was the adoptive mother of the second petitioner, the income or the means of the natural mother cannot be the criteria for the purpose of determining as to whether the petitioner No.2 ceases to have or severe his ties with the natural mother and whatever rights existed then stand divested with the adoptive mother i.e., petitioner No.1 and the learned Judge did not consider the effect of Section 12 of the Hindu Adoption and Maintenance Act, 1956 and erroneously dismissed the application merely taking into account the income of the natural mother. To substantiate this issue lie relied upon a judgment of Gujarat High Court in Maheshwatiben and Others Vs. State of Gujarat and Others, , the relevant portion is as under:

"The rejection of the minor''s application for permission to file the suit as indigent persons on the ground that the grandfather has means to pay the Court fees is equally untenable and must be rejected straightway. In an application for permission to file a suit as an indigent person, the financial condition of the applicant alone is to be seen. The financial condition of the guardian or any other relative is totally irrelevant and should not be taken into consideration at all for the purpose of arriving at a decision regarding the financial condition to the applicant."

Counsel for appellant further relied upon a judgment of this Court in Mandam Abdul Sattar Saheb Vs. H. Abdul Hakeem and Others, , wherein, the Court held as follows:

"The expression ''not possessed of sufficient means'' mentioned in Explanation to Rule 1 of Order XXXIII CPC while defining the word ''pauper'' refers to plaintiffs capacity to pay the Court fee prescribed by law for the plaintiff in such a suit. What is contemplated is not possession of property, but sufficient means i.e., capacity to raise money to pay the Court fee. Mere possession of some property is not sufficient. If the property in the possession of the plaintiff is not sufficient enough to raise money to pay the requisite Court fee, he should be deemed to have not been possessed of sufficient means to pay the Court fee and hence the Court can take him as a pauper under this rule. If, on the other hand he is in possession of property sufficient enough to enable him to raise cash for payment of the Court fee, he can be deemed to have sufficient means to pay the Court fee and he cannot therefore be considered to be a pauper."

In Sharan Singh v. MT. Man Kaur AIR 1929 Lah 746, the Court held as follows:

"CPC Order 33, Rule 4(1) and 5(b) - in pauper applications, capacity of plaintiff himself to pay Court fee and not of his next friend or relations is to be considered - If Court, though plaintiff himself is not possessed of sufficient means to pay fees, holds he is so possessed by taking into consideration capacity to pay of his relations it acts with material irregularity and High Court will interfere in revision - CPC Section 15.

In dealing with pauper applications the capacity of the plaintiff himself to pay the Court fee and not that of his next friend or relations is to be considered."

In Sri Ramjee and Others Vs. Bishwanath Pd. Sah and Others, , the High Court of Patna held as follows:

"Once it is held that the present action by the petitioners is different from the earlier suit of Hari Shankar Prasad, who in the present action is acting as the next friend of the petitioners, the second ground that the next friend has sufficient means and can pay the Court fee, stands condemned."

The Supreme Court in Smt. Sitabai and Another Vs. Ramchandra, , held as follows:

"Hindu Adoptions and Maintenance Act, 1956, Sections 12, 11(vi) and 14(4) - Adoption-Effect-Ties of adopted child with his family of birth are severed and replaced by those of adoptive family - Hindu undivided family consisting of two brothers - On death of one brother, his widow begetting illegitimate son from surviving brother-Adoption of male child by her, thereafter-Adopted son becomes coparcener-He is entitled to joint property in preference to illegitimate child. SA No.275 of 1962 dated 7-9-1965(MP), Reversed."

Considering the above submissions made by Counsel for appellant and after considering the above cited judgments, I am of the view that the reasons assigned by the Court in rejecting the application are not proper so as to determine the means or capacity of the petitioner No.2. The learned Judge erroneously rejected the application. Following the above judgments, I hereby set aside the order made by the learned Judge, the appeal is accordingly allowed. No costs.