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M.C. Chikkananjundappa Vs. D.K. Pillanna and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 428 of 1954
Judge
Reported inAIR1955Kant128; AIR1955Mys128
ActsCode of Civil Procedure (CPC), 1908 - Order 33, Rules 1 and 3; General Clauses Act, 1897 - Sections 3 and 3(39)
AppellantM.C. Chikkananjundappa
RespondentD.K. Pillanna and ors.
Appellant AdvocateC. Nagaraja Rao, Adv.
Respondent AdvocateD. Shama Rao and ;C. Narasinga Rao, Advs.
Excerpt:
.....the estate of another. ' it is clear from the above that the respondents satisfied the conception of the term 'person' and were entitled to make an application for being permitted to sue in forma pauperis or continue the proceedings already instituted by them in forma pauperis......an application under order 33, rule 1, civil p.c., for permission to continue the proceedings in forma pauperis. they alleged in their petition that they were not possessed of any property of the trust with them and that since all the trust properties were in the possession of the present petitioner they were not in a position to raise any money on the security of those properties and as such they were entitled to be permitted to sue or continue the proceedings in forma pauperis. the present petitioner opposed the application and contended that the application under order 33, rule 1, civil p.c., had not been validly presented. he also contended that since the respondents were possessed of immoveable properties of their own, they were not entitled to sue in forma pauperis. the learned.....
Judgment:
ORDER

1. This revision petition is directed against an order passed by the First Additional District Judge, Bangalore, in Misc. Case No. 106 of 1953 on his file permitting the respondents to continue the proceedings in this case in forma pauperis.

2. The respondents prayed for grant of a probate of the will and codicil alleged to have been, executed by S.M. Nanjundappa who died on 22-9-1948 in Misc. Case No. 106 of 1953 on the file of the First Additional District Judge, Bangalore. The present petitioner who was one of the respondents in the Court below resisted the application and contended that the respondents were bound to pay the court-fee on the value of the trust properties before they could pray for grant of a probate in the case. The learned District Judge directed the respondents to pay the court-fee. The respondents then made an application under Order 33, Rule 1, Civil P.C., for permission to continue the proceedings in forma pauperis. They alleged in their petition that they were not possessed of any property of the trust with them and that since all the trust properties were in the possession of the present petitioner they were not in a position to raise any money on the security of those properties and as such they were entitled to be permitted to sue or continue the proceedings in forma pauperis. The present petitioner opposed the application and contended that the application under Order 33, Rule 1, Civil P.C., had not been validly presented. He also contended that since the respondents were possessed of immoveable properties of their own, they were not entitled to sue in forma pauperis. The learned District Judge held that the application filed by the respondents was valid and that they were entitled to sue in forma pauperis in spite of the fact that they possessed properties of their own since they were not in possession of any properties belonging to the trust to enable them to raise moneys to pay the court-fee. It is against this order that the present revisiting petition has been filed by the petitioner.

3. Three points were raised by Sri Nagaraja Rao, the learned Advocate for the petitioner (1) an application filed by the respondents under Order 33, Rule 1, Civil P.C., during the pendency of the proceedings was not maintainable, (2) Order 33, Rule 1, Civil P.C. is not applicable to the case and (3) since the respondents were possessed of properties of their own which were sufficient to enable them to pay the court-fee levied, they should not have been permitted to sue in, forma pauperis. There is no substance in any of these three contentions. Order 33, Rule 1, Civil P.C. reads thus :

'Subject to the following provisions, any suit may be instituted by a pauper. Explanation : A person is 'a pauper' when he is not possessed of sufficient means to enable him to pay the fee prescribed by law for the plaint in such suit, or, where no such fee is prescribed when he is not entitled to property worth one hundred rupees other than his necessary wearing apparel and the subject-matter of the suit.'

A suit instituted in the ordinary way may be allowed to be continued in forma pauperis -- '(Vide Revji Patil v. Sakharam,' 8 Bom 615 (A) and Surendra Chandra v. Showdarhini Roy : AIR1933Cal238 ). Merely because the respondents had filed an application for grant of a probate after paying the court-fee on the petition it is not correct to contend that they had no right to continue the proceedings in forma pauperis and were bound to pay the additional court-fee. It is only after the present petitioner resisted the claim and contended amongst other things that the respondents had no right to seek for the issue of a probate without paying the court-fee that the Court directed the respondents to pay the court-fee calculated on the market value of the trust properties. The respondents who admittedly were not in possession of any of the trust properties then made an application under Order 33, Rule 1, Civil. P.C. praying for permission of the Court to continue the proceedings in forma pauperis. It is not the case of the petitioner that the respondents were or are in possession of any of the properties of the trust to enable them to raise money on the security of those properties. There is, therefore, no force in the contention of the learned Counsel for the petitioner that the learned District Judge was not justified in permitting the respondents to continue the proceedings of the case in forma pauperis because they made their application during the pendency of the proceedings.

4. The next contention raised is that the application filed by the respondents under Order 33, Rule 1, Civil P.C., was not maintainable since the respondents were possessed of the properties of their own which were sufficient to enable then to pay the necessary court-fee. The question for consideration is whether the respondents who are the executors or trustees and who sought for issue of a probate of the will and codicil by S.M. Nanjundappa can institute proceedings as paupers for the recovery of the estate of the deceased testator. The decision on this point turns upon the construction of Order 33, Rule 1, Civil P.C., extracted above and whether the trustees or executors come within the definition of the person within the meaning of the Explanation to Order 33, Rule 1, Civil P.C. The term 'person' has not been defined in the Code of Civil Procedure but the same has been defined in the General Clauses Act as to include any company or association or body of individuals, whether incorporated or not. It is clear from the said definition that the term 'person' would include both natural and legal persons. There cannot be any doubt that the term 'person' includes a juridical person. The fact as to whether the term 'person' includes a juridical person, like Official Receiver or executor or trustee was the subject-matter of a Full Bench decision in a case reported in Swaminathan v. Official Receiver, Ramnad, AIR 1937 Mad 549 (FB)(C). Venkataramana Rao J., who delivered the judgment held that an Official Receiver satisfied the conception of a 'person' as defined under Order 33, Rule 1, Civil P. C., and that he being the trustee was entitled to maintain his suit in forma pauperis. His Lordship observed thus :

'As Lord Selborne pointed out in Pharmaceutical Society v. London and Provincial Supply Association, (1880) 5 A C 857 (D) at page 861 : There can be no question that the word 'person' may and .... prima facie does, in a public statute, include a person in law; that is, a corporation, as well as a natural person. But although that is a sense which the word will bear in law, and which, as I said, perhaps ought to be attributed to it in the construction of a statute unless there should be any reason for a contrary construction, it is never to be forgotten, that in its popular sense and ordinary use it does not extend so far. The same view was taken by Lord Blackburn at pages 888 and 869. Unless therefore the context and the object of the enactment requires otherwise, 'person' in Order 33, Rule 1, Civil P.C., should have the extended meaning given to it in law. Under Order 33, Rule 1 any suit may be instituted by a pauper, that is the intended plaintiff in a suit can be a pauper. Suits under the Code of Civil Procedure can be instituted not only by natural human beings but also by artificial persons such as a corporation or an idol and also by persons like executors, administrators, trustees and Official Receivers who represent the estate of another. Prima facie, therefore, having regard to the scheme of the Code, the context and object of the enactment would not exclude an Official Receiver from the category of persons within the meaning of the said rule.'

It is clear from the above that the respondents satisfied the conception of the term 'person' and were entitled to make an application for being permitted to sue in forma pauperis or continue the proceedings already instituted by them in forma pauperis. There is also no substance in the contention of the learned advocate for the petitioner that because there is a reference to 'necessary wearing apparel' in the explanation referred to above and the necessity of the presentation of the application by the applicant in person it can only contemplate a natural person and not a juridical person. In the very same Madras Full Bench decision referred to above this point has also been answered against the contention of the present petitioners. Venkataramana Rao J., has observed thus :

'We think this contention is sufficiently met by the observations of Kumaraswamy Sastri J., in Perumal Goundan v. Thirumalrayapuram Jananukoola Dhanasekhara Sanka Nidhi Ltd., AIR 1918 Mad 362 (E). Dealing with the argument with reference to the wearing apparel he observed thus : The explanation simply allows deduction of the value of the wearing apparel and can only mean that if the applicant has necessary wearing apparel he can deduct its value. We do not think it can be construed to mean that only persons who in law can possess wearing apparel can sue us paupers.'

With regard to the physical presence of the applicant and his examination contemplated in the Code, the learned Judge observed :

'Rule 3, Order 33, Civil P.C , in our opinion only prohibits a pauper who is competent in law to appear in person from taking advantage of Rule 1 of Order 3, Civil. P.C. and appearing by a pleader or recognised agent instead of being present personally. It does not cover cases whore from the nature of the case physical presence is impossible or where the law owing to any disability directs that all acts required by the Code should be performed by a next friend.'

5. The next contention raised by the learned Counsel for the petitioner is that, since the respondents were possessed of sufficient means of their own to enable them to pay the court-fee the learned District Judge was not correct in permitting them to sue in forma pauperis merely on the ground that they were not in possession of any of the properties belonging to the trust. It was laid down in a case reported in -- 'Mabiakhatun v. Satkari : AIR1927Cal309 that the capacity of a person suing in a representative character must be kept distinct from his personal capacity and that a mutawalli, trustee or a shebait can be allowed to sue in forma pauperis, It was observed :

'that the test is not whether a person is the legal owner but whether as legal owner he is a pauper or not. If the principle of law is that a natural person in his own right is a different person when he is representing the estate of another, the test is whether in that representative character and as owner of that estate he is a pauper within the meaning of the explanation to Order 33, Rule 1, Civil P.C.'

It is thus clear that there is no substance in any of the contentions raised by the learned Counsel for the petitioners and that the order passed by the learned District Judge permitting the respondents to continue the proceedings in forma pauperis is correct. This, revision petition is therefore liable to be dismissed.

6. In the result, therefore, this revision petition fails and the same is dismissed with costs.

7. Revision dismissed.


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