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Mandam Abdul Sattar Saheb Vs. H. Abdul Hakeem and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 469 of 1974
Judge
Reported inAIR1976AP85
ActsCode of Civil Procedure (CPC), 1908 - Order 33, Rules 1 and 9
AppellantMandam Abdul Sattar Saheb
RespondentH. Abdul Hakeem and ors.
Appellant AdvocateK. Venkataramana Reddy, Adv.
Respondent AdvocateE. Kalayanaram, Adv.
Excerpt:
.....1908 - court permitted deceased plaintiff to sue in forma pauperis - suit continued by his legal representative - subordinate judge relying on some offer allowed petition dispapuring plaintiffs - in event of non-payment of court fee suit stood rejected - revision petition against order - petitioner established his incapability to pay court-fee - held, petitioner forma pauperis in light of facts and circumstances and allowed to sue. - - 5. taking into consideration the 2nd defendant's offer, the learned subordinate judge, held that the 2nd plaintiff is having sufficient means to pay the court-fee and so holding, he allowed the petition dispaupering plaintiffs 2 to 6 and also held that in case of failure on the part of the 2nd plaintiff to pay the court-fee within one month..........have got sufficient means to pay the court-fee. 3. plaintiffs 2 to 6 were brought on record as legal representatives of the deceased who was the plaintiff in o.s. no. 69/71. plaintiffs 2 and 3 are the sons while plaintiffs 4 to 6 are the daughters of the deceased-plaintiff. 4. the deceased-plaintiff was permitted to sue in forma pauperis. the 2nd plaintiff admitted that he has 75 cents of wet land and a mud house. it if admitted by the defendants that plaintiffs 3 to 6 are not having any properties. the 2nd defendant offered to purchase the 2nd plaintiffs mud house for rs. 2,200 and the land for rs. 2,200 if the 2nd plaintiff is prepared to sell them.5. taking into consideration the 2nd defendant's offer, the learned subordinate judge, held that the 2nd plaintiff is having sufficient.....
Judgment:
ORDER

1. This revision petition is directed against the order passed by the Subordinate Judge, Madanapalli, Chittoor District in I.A. No. 332/1973.

2. That petition was filed under Order 33, Rule 9, C.P.C. for dispaupering plaintiffs 2 to 6 on the ground that they have got sufficient means to pay the court-fee.

3. Plaintiffs 2 to 6 were brought on record as legal representatives of the deceased who was the plaintiff in O.S. No. 69/71. Plaintiffs 2 and 3 are the sons while plaintiffs 4 to 6 are the daughters of the deceased-plaintiff.

4. The deceased-plaintiff was permitted to sue in forma pauperis. The 2nd plaintiff admitted that he has 75 cents of wet land and a mud house. It if admitted by the defendants that plaintiffs 3 to 6 are not having any properties. The 2nd defendant offered to purchase the 2nd plaintiffs mud house for Rs. 2,200 and the land for Rs. 2,200 if the 2nd plaintiff is prepared to sell them.

5. Taking into consideration the 2nd defendant's offer, the learned Subordinate Judge, held that the 2nd plaintiff is having sufficient means to pay the court-fee and so holding, he allowed the petition dispaupering plaintiffs 2 to 6 and also held that in case of failure on the part of the 2nd plaintiff to pay the court-fee within one month from the date of the order, the plaint in O.S. No. 69/71 shall stand rejected for non-payment of court-fee.

6. Aggrieved with the said order, the 2nd plaintiff preferred this revision petition.

7. The learned counsel for the revision petitioner contends that merely because the revision petitioner who is the 2nd plaintiff in the suit is having some property, the plaintiffs in the suit should not dispaupered when the deceased plaintiff was granted leave to sue in forma pauperis. According to him, the legal representative should be permitted to continue the suit as pauper irrespective of the fact that 2nd plaintiff has property, since he steps into the shoes of the deceased pauper. In support of this contention, he relied upon decision of the Madras High Court in Sivagami Ammal v. T.S. Gopalaswami Odayar (AIR Mad 765) and Ammakannammal v. Damodara Mudaliar (AIR 1928 Mad 66).

8. Against these contentions, the learned counsel for the respondents contends that the legal representative cannot be permitted to continue the suit as pauper when he is in possession of properties sufficient enough to pay court-fee merely because the deceased-plaintiff was permitted to sue in forma pauperis. In support of his contention he relied upon the decision of the Madras High Court in Arumuga Goundan v. Subrahmaniam Goundan (AIR 1931 Mad 324) and the decision of this court in Tulsamma v. Lakshminarayamma (AIR 1972 Andh Pra 52).

9. The point, therefore, that arise for consideration in this petition is whether the legal representative of the deceased-plaintiff can be dispaupered, if he has means in his private capacity to pay the court-fee.

10. The Madras High Court in Sivagami Ammal v. Gopalaswamy Odayar (AIR 1925 Md 765) held that the expression 'plaintiff' in rule 9, Order 33 when applied to the legal representative of the deceased pauper-plaintiff refers not to the physical person before the Court, but to the legal representative of the deceased pauper-plaintiff. The fact that the legal representative has means. In his private capacity cannot justify his being dispaupered but if he is shown to have come into possession in his character as legal representative and out of the estate of the deceased, of sufficient means within the meaning of clause (b) then he may be dispaupered even as the original plaintiff might have been. The learned Single Judge dissented from following the decision of the Single Judge of the Bombay High Court in Manaji Rajuji v. Khando Baloo, (1912) ILR 36 Bom 279 in which it was held that the executor of the deceased-plaintiff who instituted the suit in forma pauperis is liable to the dispaupered because of the Madras High Court in Sivagami Ammal v. Gopalaswamy Udayar (AIR 1925 Mad 765) was followed by Kumaraswamy Sastry J., in Ammakannammal v. Damodara Mudaliar (AIR 1928 Md 66). He held that as in the case of a next friend or guardian of a minor, the question as to whether the legal representative of a deceased plaintiff can continue the suit in forma pauperis depends not on the property possessed by the legal representative or the next friend or guardian personally in their own right. They are two different persons in the eye of the law and there is no justification for holding that the legal representative of the deceased plaintiff should not be allowed to continue the suit as a pauper. But Bhasyam Ayyangar, J., in Arumuga Goundan v. Subrahmanya Goundan (AIR 1931 Mad 3224)held that if a pauper plaintiff died pendente lite and his heir who was added pendente lite as his legal representative was found to be possessed of sufficient means to pay the court-fee, the heir could be dispaupered under Order 33, Rule 9. He distinguished the rulings in Sivagami Ammal v. Gopalaswamy Odayar (AIR 1925 Mad 765) and Ammakannammal v. Damodara Mudaliar (AIR 1928 Mad 66) by stating that what was decided therein was that when the plaintiff in a suit instituted in forma pauperis died and his executor continues the suit, the executor is not liable to be dispaupered because he is personally not a pauper. The decision is expressly based on the ground that the person who wanted to continue the suit in that case wanted to do so in his capacity as executor and not in his own personal capacity. But in the case before him the petitioner does not seek to continue the suit in any other capacity than his personal capacity. He does not represent any other person or body but himself in seeing to go on with the suit. This decision was followed by A.D.V. Reddy, J., in Tulasamma v. Lakshminarasamma, : AIR1972AP52 . The learned Judge held that since the plaintiff's widow has come on record as the legal representative seeking to continue the proceeding as heir in her personal capacity and since she has means to pay, her position must be equated to that of the plaintiff-pauper who was allowed to sue in forma pauperis coming into possession of means to pay subsequent to the original order and it is clear that the widow of the original plaintiff who seeks to continue the appeal as his heir and who is admittedly possessed of means should be made to pay the court-fee in the appeal.

11. The learned counsel for the revision petitioner contends that the decisions in Arumuga Goundan v. Subrahmania Goundan (AIR 1931 Mad 324) and Tulsamma v. Lakshminarasamma : AIR1972AP52 are in conflict with the decisions in Sivagami Ammal v. Gopalaswami Odayar (AIR 1925 Mad 765) and Ammakannammal v. Damodara Mudaliar (AIR 1928 Mad 66) and he requests that the matter should be referred to a Bench for an authoritative pronouncement on this aspect. I do not find any substance in this contention. I am not able to agree with the learned counsel for the revision petitioner that there is conflict of view as pointed out by him. The decisions in Sivagami Ammal v. Gopalaswami Odayar (AIR 1925 Mad 765) and Ammakannammal v. Damodara Mudaliar (AIR 1928 Mad 66) deal with the legal representatives who are brought on record as executors under wills. In the former case the suit for partition was allowed to be instituted by the plaintiff in forma pauperis. He died during the pendency of the suit leaving a will and appointing two of his sisters as executrixes. On their application to be brought on record as legal representatives they were made plaintiffs 2 and 3 in the suit. Thus, the legal representatives that were brought on record were already appointed under will as executrixes. In the latter case, the plaintiff filed a suit for declaration that the deed of trust executed by her on 11-3-1920 in favour of the defendant was obtained by fraud and mis-representation and is inoperative for setting arise the trust deed on the ground that she was not competent to create the trust for possession of the suit house and means profits. The plaintiff was permitted to sue in forma pauperis. After fling the suit she executed a will dated 18-3-1924 whereby she gave the properties to the grandson and grand-daughter of her husband's brother. The plaintiff died pending the suit. The executor under the will has been brought on record.

12. Thus it is clear that in both the cases the legal representatives that were brought on record are the executors appointed under the will and they were having sufficient means to pay the court-fees.

13. But, in the case of Arumuga Goundan v. Subramania Goundan (AIR 1931 Mad 324) and Tulsamma v. Lakshminarasamma : AIR1972AP52 the legal representatives that were brought on record are the heirs of the deceased plaintiff in the first case, the plaintiff who had been permitted to sue as a pauper died pending the suit and his concubine's son and heir claimed to have succeeded to the subject-matter of the suit and he was added as plaintiff No. 2 in the place of the deceased plaintiff and he was permitted to proceed with the suit. The 1st defendant applied under Order 33, Rule 9, C.P.C to dispauper the substituted plaintiff on the ground that he was possessed of sufficient means to pay the court-fee. In the second case the deceased-plaintiff was permitted to sue in forma pauperis. He filed appeal and he was also permitted to prefer appeal as pauper. During the pendency of the appeal he died. His wife was brought on record as his legal representative. The defendant filed the petition under Order 33, Rule 9, C.P.C. dispauper her on the ground that she has a house worth Rs. 35,000. Thus on both these cases, the heir of the deceased-plaintiffs were brought on record. Thus the legal representatives in these cases sought to continue the proceedings as heirs of the deceased-plaintiff. Thus these two decisions cannot be in conflict with the decision in Sivagami Ammal v. Gopalaswami Odayar (AIR 1925 Mad 765) and Ammakannammal v. Damodara Mudaliar (AIR 1928 Mad 66). But the decisions in Sivagami Ammal v. Gopalaswami Odayar (AIR 1925 Mad 765) and Ammakannammal v. Damodara Mudaliar (AIR 1928 Mad 66) are of course, in conflict with the decision of the Bombay High Court in Manaji Rajuji v. Kahndoo Baloo (1912) ILR 36 Bom 279). The Bombay High Court held that the executor who was brought on record as legal representative of the deceased plaintiff and who was permitted to sue in forma pauperis cannot be permitted to continue the suit as pauper when he is in possession of properties sufficient enough to pay the court-fees. But the Madras High Court in Sivagami Ammal v. Gopalaswami Odayar (AIR 1925 Mad 765) and Ammakannammal v. Damodara Mudaliar (AIR 1928 Mad 66) took the view that the executors who were brought on record as legal representatives of the deceased-plaintiffs are entitled to continue the proceedings as paupers in spite of the fact that they are having sufficient means to pay the court-fee. Thus there is conflict of view on this aspect in between the Bombay High Court and the Madras High Court. But there is no conflict of view on this aspect between the decisions of Bhasyam Ayyangar, J., and A.D.V,. Reddy, J., in Arumuga Goundan v. Subramania Goundan, (AIR 1931 Mad 324) and Tulsamma v. Lakshminarasamma : AIR1972AP52 respectively and the decisions of Srinivasa Ayyangar, J., in Sivagami Ammal v. Gopalaswami Odayar (AIR 1925 Mad 765) and Kumaraswamy Sastry J, in Ammakannammal v. Damodara Mudaliar (AIR 1928 Mad 66) for the reasons stated above, and hence it is not necessary for making a reference to a Division Bench as suggested by the learned counsel for the revision petitioner.

14. From the rulings laid down by the decisions of the Madras High Court and the decisions of the Andhra Pradesh High Court cited above, it is clear that there is distinction in the right to sue as pauper in between an executor or administrator brought on record as a legal representative, and an heir of the deceased pauper plaintiff brought on record as legal representative.

15. From the above rulings the following principles can be deduced.

1. The right to sue as a pauper is a personal right. It extinguishes with the death of the pauper plaintiff.

2. The legal representative, however, can be substituted for the deceased-plaintiff in the ordinary course. If the heir of the deceased is brought on record as his legal representative he can continue the suit as pauper on fresh application if he has no sufficient means to pay the court-fee. If he has sufficient means, he can continue the suit on payment of court-fee. But this principle does not apply to the executor or administrator, if brought on record as legal representative of the deceased pauper-plaintiff. He can continue the proceedings as pauper irrespective of the fact whether he has sufficient means or not to pay the court-fee as in the case of a next friend or a guardian of a minor.

3. The heir who is brought on record as legal representative of the deceased pauper-plaintiff can be dispaupered under Rule 9 of Order 33 if he comes into possession of sufficient means to pay court-fee subsequent to the grant of leave to continue the proceedings as pauper. But the executor or the administrator would not be dispaupered even if he comes into possession subsequently to the grant of such leave of sufficient means to pay the court-fee.

4. The executor or administrator who is permitted to continue the suit as legal representative of the deceased pauper-plaintiff can also be dispaupered if it is shown that he comes into possession in his character as a legal representative and from out of the estate of the deceased, of sufficient means within the meaning of Rule 9 (b) of Order 33, C.P.C. as in the case of the pauper-plaintiff.

16. Applying the above principles in the case on hand the 2nd plaintiff who is the heir of the deceased pauper-plaintiff cannot take advantage of the ruling laid down in Sivagami Ammal v. Gopalaswami Odayar (AIR 1925 Mad 765)

17. Now the question is whether the 2nd plaintiff has not sufficient means to pay the court-fee. The 2nd plaintiff claims that the mud house which he possesses is not worth even Rs. 500 and the extent of 75 cents of land will not be worth more than Rs.1000 even if the present value would be calculated at ten times of the original value at which he purchased in 1968 and hence the total value of both properties would not be more than Rs. 1,500 and it cannot be said to be sufficient enough to pay the court-fee of Rs. 4,300.

18. The expression 'not possessed of sufficient means' mentioned in Explanation to Rule 1 of Order XXXIII, C.P.C. while defining the word 'pauper' refers to plaintiff's capacity to pay the court-fee prescribed by law for the plaintiff in such a suit. What is contemplated is not possession of property, but sufficient means i.e. capacity to raise money to pay the court-fee. Mere possession of some property is not sufficient. If the property in the possession of the plaintiff is not sufficient enough to raise money to the requisite court-fee, he should be deemed to have not been possessed of sufficient means to pay the court-fee and hence the court can take him as a pauper under this rule. If, on the other hand he is in possession of property sufficient enough to enable him to raise cash for payment of the court-fee, he can be deemed to have sufficient means to pay the court-fee and he cannot therefore be considered to be a pauper.

19. In this case the plaintiff being in possession of property worth Rs. 1,500 cannot be said to have sufficient means to pay the court-fee of the value of Rs. 4,300 and hence he should be deemed to be a pauper under this rule.

20. For this view, I am fortified with the rulings of the Bombay and Madras High Courts reported in Ganga Bai v. Sridhar (1907-8 Bom LR 642) and C. Balasundaram v. C. Abdulla (1971084 Mad LW 252 (1). In the Bombay case the court-fee to be paid was of the value of Rs. 1,775 and the applicant was having properties of the value of Rs. 1,600. The Bombay High Court held that the plaintiff cannot be treated to have sufficient means to pay the court-fee. In the Madras case, the court-fee payable by the plaintiff was Rs. 750 while the plaintiff was having means to the extent of Rs. 650. The Madras High Court held that the petitioner has not got the amount sufficient to pay the court-fee and hence he was granted leave to file the suit in forma pauperis.

21. As the plaintiff is not having sufficient means to pay the court-fee, the learned Subordinate Judge is not justified in holding that the 2nd plaintiff is having sufficient means to pay the court-fee. Unfortunately the learned Subordinate Judge is carried away by the statement of the 2nd defendant which is to the effect that he was prepared to purchase the mud house for Rs. 2,200 and the land for Rs. 2,200 but failed to take into consideration the documents Ex. B-2 and Ex. B-1 which clearly prove that the properties would not be worth more than Rs. 1,500. The learned Subordinate Judge has lost sight of the fat that the 2nd defendant was bent upon depriving the 2nd plaintiff of the little property he is having by coming forward to purchase the mud house for Rs. 2,200 and the land for Rs. 2,200 and the valuation given by the 2nd defendant is motivated and hence no reliance need be placed on such a statement of the 2nd defendant.

22. Thus I hold that the order passed by the learned Subordinate Judge is vitiated with material irregularity and is therefore unsustainable. I, therefore, set aside the impugned order and allow the revision petition. The Subordinate Judge is directed to take the plaint on his file and proceed with the suit according to law.

23. In the result, the revision petition is allowed with costs.

24. Revision allowed.


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