S.P. Swami Naidu vs Natesa Aiyar alias Subramania Aiyar and Another

Venkataramana Rao, J.—This is a petition to revise the order of the Additional Subordinate Judge of Coimbatore declining to dispauper the

plaintiff under Order 33, Rule 9, Civil Procedure Code. The plaintiff instituted the suit, out of which this petition arises, on a mortgage executed by

defendants 1 to 4, in favour of his mother and deceased sister, the mother of the sixth defendant in the suit. The case on which the plaintiff came to

Court was, though the mortgage was executed in favour of both the plaintiff''s mother and sister, they were really benamidars for the father of the

plaintiff, and the plaintiff was the person solely entitled to the amount due under the mortgage, and therefore he prayed for a mortgage decree for

the entire amount to be passed in his favour. The case of the sixth -defendant is that his mother is entitled to half the amount, that the allegations

relating to benami are false and that he was entitled to half the mortgage amount in the right of his mother. Among the issues framed in the suit, are

the following:

Was the mortgage deed in question taken by the plaintiff''s father benami in the names of the plaintiff''s mother and sister as alleged by the

plaintiff?

Is the sixth defendant entitled to any portion, of the mortgage amount?

On 13th December, 1936, the plaintiff and sixth defendant filed a joint memo, into Court in and by which the plaintiff agreed that the sixth

defendant is entitled to one half of the amount. The result of the arrangement embodied in the said memo, is that the plaintiff gives up his contention

as to benami. The fifth defendant who is a subsequent purchaser of the suit property has filed an application to dispauper the plaintiff on the ground

that the plaintiff has subsequent to the suit entered into an arrangement with reference to the subject-matter of the suit in and by which the sixth

defendant has obtained an interest therein and therefore he is liable to be dispaupered. The lower Court has negatived the contention and dismissed

the application and the question is, is the view of the lower Court sound? I am inclined to think it is. Order 33, Rule 9(c) contemplates an

agreement in and by which an interest is transferred or created in the subject-matter of the suit in favour of a person who is not entitled to it, and

would not cover a case such as this where by virtue of a family settlement between the parties there is a recognition of an antecedent title in one of

the parties to the suit. The joint memo, does no more than declare that the plaintiff''s sister was from the inception entitled to half the entire

mortgage amount and that the sixth defendant as her heir would be entitled to it. Order 33, Rule 9(c) is not intended to affect cases of this

description. Mr. Krishna Bharathi contends that as under the memo, the plaintiff is now entitled to get a decree'' for half the amount the lower

Court ought to have found-out whether the plaintiff would not be in a position to pay the court-fee for half the amount and given a finding in regard

thereto, but this was not made a ground for dispaupering the plaintiff. It is open to the fifth defendant if he is so advised, to prefer a separate

petition. I therefore do not propose to deal with the said matter in this Revision Petition.

In the result the Civil Revision Petition is dismissed with costs.