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Nemichand Bhickchand Marwadi Vs. Kenalchand Jasraj Marwadi - Court Judgment

LegalCrystal Citation
CourtMumbai
Decided On
Reported in80Ind.Cas.748
AppellantNemichand Bhickchand Marwadi
RespondentKenalchand Jasraj Marwadi
Excerpt:
civil procedure code (act 7 of 1908) order xxxiii, rule 1 - suit in forma pauperis by minor--pauperism, proof of--next friend, pauperism of, whether must be proved--property possessed by parents of plaintiff, effect of. - .....of civil procedure. he was a minor and applied through his next friend for permission to sue as a pauper. the minor claimed that he had been adopted by one parvati who died in april 1920 and his claim to have been adopted by her was resisted by the opponents. the judge said:the minor was the only child of his parents. the father had a shop and the mother ornaments of about rs. 1,500. besides the father has left a house in marwar. it is said that the father sold his shop and wife's ornaments before his death, but this is not satisfactorily proved. the adoption deed is not produced, and is said to be missing. no certified copy is produced. these facts show that the applicant is not a pauper and the claim is doubtful.2. we do not think that the judge has rightly dealt with the application......
Judgment:

1. The petitioner in this case applies to the Court under Section 115 of the Code of Civil Procedure. He was a minor and applied through his next friend for permission to sue as a pauper. The minor claimed that he had been adopted by one Parvati who died in April 1920 and his claim to have been adopted by her was resisted by the opponents. The Judge said:

The minor was the only child of his parents. The father had a shop and the mother ornaments of about Rs. 1,500. Besides the father has left a house in Marwar. It is said that the father sold his shop and wife's ornaments before his death, but this is not satisfactorily proved. The adoption deed is not produced, and is said to be missing. No certified copy is produced. These facts show that the applicant is not a pauper and the claim is doubtful.

2. We do not think that the Judge has rightly dealt with the application. On the question whether or not the applicant had sufficient means to pay the Court-fees, it would not be sufficient for the opponent to prove that his father had a shop and his mother had ornaments, unless it could be shown that the shop and the ornaments actually came into his possession. Because if his case was correct and he had been adopted into another family, he could not succeed to the property of his natural parents.

3. It has been contended that the real appellant is the maternal uncle, and he would have to show that he was a pauper before the suit could be instituted in forma pauperis. This question was decided in Venkatanarasayya v. Achemma 3 M. 3 : 1 Ind. Dec. (N.S.) 558 where it was held that the rule of English practice which prevents a minor from instituting a suit in forma pauperis through his next friend, unless he gives proof not only that he himself is a pauper, but that the next friend is a pauper, should nob be deduced from the provisions of the Civil Procedure Code, and that it was only necessary to show, when a minor was seeking to file a suit in forma pauperis, that the minor had no means. We see no reason to differ from that decision. We must, therefore, remand the application to the lower Court so that it may be decided definitely whether the minor applicant has sufficient means to pay the Court fees. We note that his application in the lower Court was not resisted by the Government Pleader.

4. Costs of this application to be costs in the cause.


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