Shrimati Ram Devi vs Tulsi Ram and Others

Dua, J.—This is a revision directed against the order of the learned Senior Subordinate Judge, Dharamsala holding the petitioner not to be a pauper.

The facts are that the petitioner Smt. Ram Devi instituted a suit against the respondents in forma pauperis for arrears of maintenance from 1st November, 1959 to 31st October, 1960 at the rate of Rs. 100/- per month. The defendants respondents contested the suit, inter alia on the ground that she was not a pauper and should be called upon to pay the court fee. The trial Court referred to the evidence led before it and also to the report of the Collector which, according to it was based upon the report of the Panchayat, according to which the petitioner was shown to be in possession of some gold ornaments and also some silver ornaments. On this view, her application to sue as a pauper was disallowed.

On revision in this Court, the petitioner''s learned counsel has questioned the correctness of the conclusion of the Court below and has also submitted that ornaments which a woman ordinarily wears are of the same class of personal property as her wearing apparel and cannot be taken into consideration in determining whether she has sufficient means to pay the court fee. For this proposition, support has been sought from a Bench decision of the Calcutta High Court in Mabia Khatun Vs. Sheikh Satkari and Others, . Reference has also been made to Nishamoni Debi and Another Vs. Joy Krishna Panda and Others, where a Division Bench of that Court has observed that ornaments given to a girl at the time of her marriage are not such as can be parted with by a Hindu woman who has her husband alive. These ornaments, according to this decision, are worn daily and as such constitute the wearing apparel of a Brahmin Hindu woman. That case, it may be mentioned, was of a Hindu Brahmin.

On behalf of the respondents, my attention has been drawn to a Single Bench decision of the Lahore High Court in AIR 1928 271 (Lahore)

Harrison, J. has observed there that the use of the word "means" shows that it is intended to cover and include all forms of realizable assets which can be converted into cash and as such can be used for financing the litigation. This case obviously does not deal with the ornaments which a Hindu woman is given on marriage or she otherwise ordinarily wears. The second decision cited by the respondent is Mt. Kiran Devi Vs. Madan Lal and Another, . In this judgment, the Calcutta decision mentioned above has been dissented from and it has been observed by Malik C.J. and Mushtaq Ahmed J. that ornaments in possession of a woman cannot be considered as part of wearing apparel and can be taken into consideration in finding out whether she has means to pay the court-fee. It has also been urged that there is no ground for interference on revision because there is no infirmity within the meaning of section 115, Criminal Procedure Code, disclosed on the record and reliance for this submission has been placed on Nemi Chand and Another Vs. The Edward Mills Co. Ltd. and Another,

In reply, the petitioner''s learned counsel has taken me through the evidence and submitted that the order is tainted with an illegality and a material irregularity in the exercise of jurisdiction and that the report of the Collector based on the report of the Panchayat is inadmissible in law. Reference has also been made to Rang Bahadur Singh v. Bisheshwar Prasad Singh AIR 1856 Pat. 429, for the propostion that if material evidence is not considered by the Court below, it affords a good ground for interference on revision.

I have devoted my most serious consideration to the arguments addressed and as at present advised, I am more inclined to agree with the view taken by the Calcutta High Court that the ornaments which are given to a Hindu woman on marriage or on other religious occasions and the ornaments which she ordinarily wears must be considered to be of the same class of property to fall within the expression "necessary wearing apparel" as used in Order 33, Rule 1, Explanation. The same expression has been used in section 60(1) proviso (a), C. P. C. and the Bombay High Court in Appana v. Tangamma ILR 9 Bom. 106, observed that the mangalsutra, a neck ornament, which is worn by a Hindu married woman during the lifetime of her husband and never removed, is a part of her necessary wearing apparel, and is exempt from attachment and sale in execution. The Allahabad Court, with all due respect, completely ignored the sentiments which a Hindu Woman attaches to the ornaments given to her either at the time of marriage or at the ceremonial occasions and also the ornaments which she ordinarily wears, a consideration which cannot be excluded or ruled out for the purpose of determining whether or not those ornaments fall within the expression "necessary wearing apparel" as used in the Explanation to Rule 1 of Order 33, C.P.C.

In the view that I have taken, I have myself gone through the evidence led in the Court below and I find that the evidence by no means justifies the conclusion arrived at by the Court below. The Collector''s report, based, as concededly it is on the report of the Panchayat can hardly inspire much confidence, for, as is well-known, the plaintiff who is an old woman could hardly successfully counter-act the influence of her husband against whom she had initiated the proceedings for maintenance. The other evidence is far too vague and also interested, with the result that the positive evidence showing possession of gold and silver ornaments by the plaintiff is wholly insufficient to sustain the finding that she is possessed of sufficient means to enable her to pay the fee prescribed by law for the plaint. The testimony of Tulsi Ram as R.W. 4 merely talks of what he had given to the plaintiff at the time of marriage which is too speculative a factor to sustain any rinding about the present possession of those ornaments by the lady. The statement that he used to give his income to her from which she must have saved about Rs. 1,000/- is equally speculative and conjectural. The further assertion that six years earlier he saw her wearing some ornaments at the time of her nephew''s marriage, apart from being again conjectural also ignores the point already decided that ornaments which amount to "necessary wearing apparel" cannot be taken into account.

Smt. Ram Devi plaintiff-petitioner''s own testimony is clear and unequivocal. It must not be forgotten that being 64 years old she must instinctively be conservative. She has expressly stated that her husband who promised to give her rice, wheat and maize did not carry out the promise and indeed for the preceding 2 years he had given her absolutely nothing. Prior to that, he used to give her Rs. 12/- for sometime and sometimes gave Rs. 24/- after two or three months or Rs. 36/- after about 8 months. It is clear from her testimony that her husband had separated her about 14 years earlier and from the evidence it seems to be obvious that now he has completely neglected her.

On the evidence on the record, I have little hesitation in holding that the plaintiff has satisfactorily established that she is a pauper and has no means to pay the court-fee, with the result that this revision succeeds and allowing the same I set aside the order of the learned Senior Subordinate Judge and remit the case back for further proceedings in accordance with law and in the light of the observations made above. The petitioner is entitled to her costs of these proceedings. Costs in the Court below would follow the event. Parties are directed to appear in the Court below on 10th February 1964 when another short date would be given for further proceedings.