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Girija Bai Vs. A. Thakur Das and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 842 of 1965
Judge
Reported inAIR1967Kant217; AIR1967Mys217; ILR1967KAR1128; (1967)2MysLJ49
ActsCode of Civil Procedure (CPC), 1908 - Sections 26 - Order 8, Rule 6 and 6(2) - Order 33, Rule 1; Mysore Court Fees and Suits Valuation Act, 1958 - Sections 8, 11, 14, 15, 35, 35(1), 35(2), 35(4) and 38; Mysore High Court Act, 1961 - Sections 8(2)
AppellantGirija Bai
RespondentA. Thakur Das and ors.
Appellant AdvocateK.R. Karanth and ;K.R.D. Karanth, Advs.
Respondent AdvocateK.S. Ramadas, Adv. Gen, ;G.R. Doreswamy, ;S.K. Vaidya and ;R.A. Kalburgi, Advs.
Excerpt:
.....of her defence without payment of court-fee as pauper - defendants' claim involves cancellation of release-deed - proceeding in respect of cancellation of release-deed starts with institution of written statement which amounts to 'plaint' and in partition suit defendant is as much a plaintiff as a plaintiff is - as per section 38 requisite court-fee prescribed paid for relief of cancellation of release -deed - in light of precedent written statement filed by 7th defendant is 'plaint' in which relief is asked for - defendant can claim reliefs against co-defendants in partition suit as pauper - order 33 would apply to defendant who sues for reliefs in written statement - appeal disallowed. - code of civil procedure, 1908. order 7, rule 11 & order 7, rule 14 : [arali nagaraj, j] rejection..........for partition'.'in this view the defendant in rimming a relief for cancellation of !hp release deed partition of her 1/12th share must be understood as suing for the concerned reliefs. hence the provision of order xxxiii of the code of civil procedure would apply to defendant who sues for reliefs in a written statement.8. sri k. r. karanth. learned counsel for the petitioner invited our attention to a decision reported in (1042) 2 mad lj 707= (air 1643 mad 177). ananthakrishna baliga in re, wherein it is observed that 'there is nothing in order 33 of the civil procedure code, which can help a defendant in asking for the indulgence granted to persons who wish to file suits in forma pauperis except perhaps in cases where he (that is, the defendant) may be, for the purpose of the suit.....
Judgment:

Gopivallabha Iyengar, J.

1. This Revision Petition comes be-fore us on a reference made under Sub-section (2) of Section 8 of the Mysore High Court Act, 1961. when this matter came up for hearing before His Lordship Justice Kalagate.

2. This Revision Petition is directed against the order, dated 25th March. 1965, made by the First Additional Civil Judge Bangalore City, in Original Suit No. 12 of 1964. It purports to he an order on 1. A. Nos. IX and X The learned Judge disallowed both the applications. In the operative portion of the order, the learned Judge stales as follows:

'Register the written statement as an application for the purpose of Order 33, Rule 1 of the C. P Code Issue notice to the other defendants and plaintiff in this suit and the Government Pleader. File is posted by 23-4-1965 for objections.'

It must be observed that I. A. No IX was an application for the deletion of issue No 13 and I A No. X appears to be an application made by the 7th defendant under Section 151 of the Code of Civil Procedure praying that the suit be proceeded with on the date fixed for evidence. We may mention that an earlier stage, the District Judge, Civil Station, on whose file the Original Suit was pending at that time made an order on 5-12-1963 allowing I A No IX and deleting Tissue No. 13 As against this order, the 7th defendant filed Civil Revision Petition No. 7 of 1964 and this Court allowed the Revision Petition and set aside the order of the trial Court on I. A. No. IX and directed the District Judge to take up for consideration the question whether the 7th defendant can he permitted to prosecute any part of her defence without payment of court-fee as a pauper in the light of the objections already filed by her and in the light of this decision on the aforesaid question he should proceed to dispose of the 11th defendant's application. I. A No IX When this matter went to the trial Court, the trial Court passed on 25-3-1965 the order which is now in revi-sion.

3. To appreciate how the question that is new for decision in this revision petition arises. It is necessary to mention a few facts. Original Suit No 12 of 1964 was instituted mainly for a partition of the properties mentioned in the plaint schedule among the plain tiff and the defendants 1 to 11. The plaintiff claims that she is entitled to 1/12th share in the properly. She and defendants 7 to 10 are sisters Defendants 1 to 6 are her brothers. The property in respect of which a partition is sought is alleged to have belonged to her father Defendants 1 to 6 resisted the claim of the plaintiff 11th defendant, the widow of the deceased claims the entire property as a legatee under the Will of her husband. It also transpires that the defendants 7 to 10 have under several deeds released their rights in the proper Ms in question, in favour of defendants 1 to 6

Defendant 7 has no objection for a decree being pasted for l/12th share as claimed in the plaint. But she claims that she should also be granted a decree in the same terms as in the plaint in so far as it relates to parti tion and separate possession and claims 1/12th share in the plaint properties She also pleads that the release deed, dated 21-12-1959. executed by her in favour of defendants 1 to 6 is an impediment in her getting anv relief in the suit as one of the co-heirs She set out the circumstances under which she came to exe cute the release deed in favour of defendants 1 to 6 and submits that the said deed is void and not binding on her In the alternative she contended that if the release deed, dated 21-12-1959. is not void but voidable, she seeks cancellation of this document

She further states that she has no sufficient means to pay the court-fee in respect of the said relief and craves leave of the Court to treat her written statement as a petition for leave to prosecute in forum pauper is so far as it relates to the relief relating to cancellation of the release deed. In support of that position she relies upon the provisions of Section 14 read with Section 36 of the Mysore Court-Fees and Suits Valuation Act. 1958 (Mysore Act XVI of 1958)

An objection was raised in the trial Court to the effect that the 7th defendant is not entitled to have the benefit of the provisions of Order XXXIII of the Code of Civil Procedure The question, whether the 7th defendant can have the benefit of the provisions of Order XXXIII of the Code of Civil Procedure is the one that is referred to for H derision, in the first inslance, by the trial Court in the order of this Court in C. R. P. 7 of 1964. After hearing the parties the learned Judge passed an order which has already been extracted

4. In support of the revision petition, the learned Counsel for the petitioner. Sri K R Karanth strongly relies upon the terms used in several sections of the Code of Civil Procedure and also Order XXXIII He also submits that provisions of Sections 14 and 15 of the Mysore Court Fees and Suits Valuation Act would not also support the view taken by the trial Court

The contention of Sri Karanth is that a suit is instituted under Section 26 of the Code of Civil Procedure by the presentation of a plaint He points out that under Order VII particular to be contained in the plaint and other details have been prescribed All these refer to the plaintiff and the plaint He also refers to Order VIII. Rule 6. where a specific provision is made enabling the defendant lo claim a set off and Sub-rule (2) of Rule ft states that a written statement has the same effect as a plaint in a cross-suit to enable the Court to pronounce a final judgment, in respect of both the original claim and of the set off It must be noticed that this provision relates to a suit for the recovery of money The suit in this case being one for partition and other reliefs the defendant cannot have the advantage of the provisions of Rule 6.

Under Order XXXIII of the Code of Civil Procedure, provision is made for the institution of suits by paupers Sri Karanth has taken us through all the relevant rules of the said order and points out that the reference therein is only to sue as a pauper His sub-mission is that the person who can sue is the plaintiff and that can be done under Section 26 by the presentation of the plainl. The provision of Order XXXIII according to him. is not intended for the benefit of the defendant who pleads a set off or sets up counter-claim

It is not disputed that the counter-claim made in this case by the 7th defendant does not come within the purview of Rule 6 of Order VIII. Therefore it requires to be seen as to whether the defendant in a suit of the nature of the one with which we are concerned can make a counter-claim without paying the court-fee, taking advantage and seeking the benefit of the provisions of Order XXXIII. Code of Civil Procedure It must further be noticed that in this case it is not a counter-claim as against the plaintiff. It is a claim by the 7th defendant against defendants 1 to 6 seeking the cancellation of the released deed executed by her in favour of defendants 1 to 6 Therefore it is a case of a claim by one defendant as against some of the other defendants Thus it becomes necessary to consider the nature of the proceedings and the position of the parties in a suit of this nature.

The suit being one for partition. each co-owner, as against another occupies in herself or himself the role of the plaintiff as well as the defendant. It is in consequence of this reciprocal character of the right which co-owners have in the matter of partition, that even those who are not the actual plaintiffs can claim that their shares also be allotted to them by the decree. This statement of law, we get in (1899) ILR 22 Mad 491. Assam v. Pathumma. This is a well established proposition of law.

It is from this point of view that his Lord ship in C R P. 7 of 1964 has observed:

'The fact that the contention raised by the 7th defendant may properly be made the subject-matter of another suit is no answer to her raising that question in this suit for parti-tion, because it is directly connected with the question whether or not she is entitled to a share in the property which, in the absence of the release deed, she would ordinarily have been entitled to.'

It is clear also from the plaint that there should be a final adjudication of the rights between the parties to this suit. If the claim of the 7th defendant can be countenanced in this suit as a sharer it can be so done only after the impediment in the shape of release-deed is removed Therefore the relief relating to the cancellation of the release-deed is an integral part of the relief that the 7th defendant can claim in this suit.

That such a position is contemplated and permissible in law can be inferred from the provisions of the Mysore Court-Fees and Suits Valuation Act. 1958, hereinafter called the Act. Our attention was drawn to Section 8 of the Act which refers to a written statement pleading a set off or counter claim. This provision of law possibly refers to cases coming within the purview of Order VIII. Rule 6.

5. The next section relevant is Section 14. where it is prescribed as follows

'Where fee is payable under this Act on a written statement filed by a defendant the provision of Section 11 shall apply to the determination and lew of the fee payable on such written statement, the defendant concerned being regarded for the said purpose as the plaintiff and the plaintiff or the co-defendant or the third party against whom the claim is made being regarded as the defen dant.'

Section 11 refers to the decision as to proper court-fee payable on proceedings in Courts. What is important under Section 14 is that it relates to cases 'where fee is payable under this Act' necessitating thereby our looking into the provision of Section 35 of the Act.

Section 38 makes provision regarding court-fee payable in partition suits. Section 35(2) sets out the scale of fee that the plaintiff in a partition suit has to pay Subsection 3 provides as follows :

'Where, in a suit falling under Subsection (1) or Sub-section (2) a defendant claims partition and separate possession of his share of the properly fee shall be payable cm his written statement computed on half the market value of his share or at half the rates specified in Sub-section (2), according as such defendant has been excluded from possession or is in joint possession.'

So it contemplates the case of defendant claiming partition and separate possession in a suit for partition This is a claim distinct from the one that is referred to under Order VIII. Rule 6.

Sub section (4) of Section 35 of the Act provides.

'Where, in a suit writing under Subsection (1) or Sub-section (2) the plaintiff or the defendant seeks cancellation of the decree or older document of the nature specified in Section 38. separate fee shall be payable on the relief of cancellation in the manner specified in that section.'

This relates to a suit for partition and to defendant's claim. Further it contemplates the defendants claims involving cancellation of decree or other documents. In the present case the defendants' claim involves the cancellation of the document, viz., the release deed Therefore under Section 38 of the Court-fee Act. requisite court-fee that it prescribed therein must be paid for the relief of cancellation of the release-deed. From these provisions there is no doubt that the defendant can sect cancellation of release-deed in this proceeding.

6. The next question is 'Can she get relief of this kind as a pauper?' It depends upon whether the written statement filed by the 7th defendant could be treated as plaint. The decision in (1899) ILR 22 Mad 494. may be referred to in this connection It is observed therein as follows:

'Plaint, in law, means (and has, since before the days of Blackstone, whose phraseology in regard to the explanation of the term has been accepted by Lexicographers meant) nothing more than 'a private memorial tendered to a Court in which the person sets forth his cause of action, the exhibition of action in writing.' In the absence of a distinct and direct statutory definition to the contrary we have no right to put a more restricted construction on the term.'

Taking this meaning of the plaint, the written statement filed by the 7th defendant is a plaint in which the relief is asked for.

The observations in another decision of the Madras High Court in the same volume, (1839) ILR 22 Mad 2S6 at page 257 are

' No Doubt there is authority for the view that the term suit is a ven comprehensive one, that it is understood to apply to any proceeding in a court of Justice by which an Individual pursues that remedy in a court of Justice which the law affords him, that the model of proceeding may be various, but that If right is litigated between parties In a court or Justice the proceeding by which the decision of the Court is sought is a suit.'

The proceeding in respect of cancellation of the release-deed starts with the institution of the written statement which as mentioned already amounts to a plaint and in a partition suit a defendant is as much a plaintiff as a plaintiff is.

In regard to the further question as to whether one defendant can sue another defendant in a suit for partition we may refer to a decision reported in : AIR1944Cal421 , Nil Govinda Misra v. Rukmlnl Deby. The relevant observation in the said decision is as under

'It is also an established principle that a co-sharer, be he or the a plaintiff or defendant in a suit for partition, is entitled to claim separate allotment at any stage before the final decree.'

In the above decision the defendant does not seek relief against the plaintiff but only against the co-defendants. Therefore it was contended that for partitioning those properties a separate suit should be brought by the co-sharer. This contention is negatived and It is observed as follows:

'We do not see any reason why we should drive the parties to a separate suit for partitioning the properties of the second class by metes and bounds when that can be done in this suit without greater expense or trouble. It is on the principle of shortening litigation by the avoidance of multiplicity of suits that we direct the partition by metes and bounds amongst the defendants of the rest of properties mentioned In the plaint in which the plaintiff has no share.'

In the case on hand also If the 7th defendant chooses to file a separate suit for cancellation of the release deed which she would be entitled to do. she would be entitled to the benefit of the provision of Order XXXIII. Therefore in our opinion the defendant can claim reliefs against en-defendants in a partition suit as a pauper.

7. A further question has been raised as to whether the defendant could sue for the cancellation of the release-deed by filing a written statement in this connection the meaning of the words 'to sue' would be relevant. A reference is made to the meaning of these words In a decision reported in : AIR1967Mad186 , Ramaswami v Subramania Pillai, and in paragraph 6 of the said decision it is observed as follows:

'In Stroud's Judicial Dictionary, 3rd Edn., Vol. IV at page 2912. it is noticed that the words 'to USP' may be applied indifferently either to the defendant or plaintiff or to the tenant or defendant, for the suit of one party or of the other must he followed: and the words 'to sue' not only signify 'to proosecule' but also 'to defend' or 'to do something which the law requires for the better prosecution or defense of the case. In Webster's New Twentieth Century Dictionary, among the meanings given to the words 'to sue' are: to appeal; to petition; to beseech; and in law, to petition a court for justice or redress through legal action. The Legislature has used only the words 'sues for partition' While it does involve the idea of some action by a transferee to secure a partition, it does not, in my view. necessarily mean that the transferee himself must institute a suit for partition. The word 'sues' is not just and only the equivalent to 'brings a suit'. It conveys also something more; any pleading or petitioning or application for partitioning and allotment of his share would be covered by the words 'sues for partition'.'

In this view the defendant in rimming a relief for cancellation of !hp release deed partition of her 1/12th share must be understood as suing for the concerned reliefs. Hence the provision of Order XXXIII of the Code of Civil Procedure would apply to defendant who sues for reliefs in a written statement.

8. Sri K. R. Karanth. learned Counsel for the petitioner invited our attention to a decision reported in (1042) 2 Mad LJ 707= (AIR 1643 Mad 177). Ananthakrishna Baliga in re, wherein it is observed that 'there is nothing in Order 33 of the Civil Procedure Code, which can help a defendant in asking for the indulgence granted to persons who wish to file suits in forma pauperis except perhaps in cases where he (that is, the defendant) may be, for the purpose of the suit regarded as a plaintiff. The words of Order 38, Rule 1. are unambiguous and cannot be construed so as to cover a defendant or a defence.' This observation tends to support the position that in a case where defendant for the purpose of the suit ran bo regarded as plaintiff, he can have the benefit of Order XXXIII. Hence this decision cannot apply to this case and does not assist in any manner to the petitioner.

9. In these circumstances we see no reason to interfere with the order passed by the trial Court. The Revision Petition is therefore dismissed. Since the matter has been pending for long time and not much progress has been made, we direct the trial Court to dispose of the case as expeditiously as possible Each parly to bear his own costs. Revision petition dismissed.


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