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Basanta Kumari Debi Vs. Sarada Prasad Das and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 346 of 1981
Judge
Reported inAIR1985Ori242; 1985(I)OLR318
ActsCourt-fees Act, 1870 - Sections 18A
AppellantBasanta Kumari Debi
RespondentSarada Prasad Das and ors.
Appellant AdvocateB.B. Mohanty, Adv.
Respondent AdvocateS. Misra (for No. 2), ;S. Mantry and ;K. Kar (for Nos. 1 to 3), Advs.
DispositionRevision allowed
Excerpt:
.....the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the..........reads as under : '''18a (1) notwithstanding anythingcontained in this act no plaint in respect of asuit filed by a woman whose annual incomedoes not exceed three thousand rupees, formaintenance or for enhancement ofmaintenance or for recovery of share in theestate of her deceased husband or parent inthe family property and no petitions filed byany such woman for divorce on ground ofcruelty or other misconduct on the part of herhusband shall be chargeable with court-fees.(2) the court in which such plaint or petition is filed shall have power to make such inquiry as it deems fit for assessing the income of the plaintiff or the petitioner, as the case may be.'the learned subordinate judge confused between the provisions contained in order 33 of the civil p.c. and the provisions of section.....
Judgment:
ORDER

R.C. Patnaik, J.

1. This revision is directed against the order passed by the learned Subordinate Judge, Kendrapara rejecting the petitioner's application under Section 18A of the Court-fees Act seeking exemption from payment of Court-fee.

2. The petitioner filed a plaint in the Court of the Subordinate Judge seeking the following reliefs :

(a) For a declaration that defendant 1 was not the adopted son of late Chaturbhuja;

(b) for a declaration that the deed of gift purported to have been executed by Chaturbhuja in favour of defendant 1 and the sale deeds executed by defendants 1 and 2 in favour of defendants 4 to 9 were not valid and binding on the plaintiff; and

(c) for permanent injunction restraining the defendants from interfering with the half interest of the plaintiff in the joint family property etc.

3. She alleged therein that her income did not exceed Rs. 3,000/- per annum and filed an application under Section 18A of the Court-fees Act seeking exemption from paying court-fee.

4. She pleaded that late Chaturbhuja and defendant 3 were brothers and the property was their ancestral property. Chaturbhuja died on 30-1-69 while living in jointness. His half interest in the property was the subject-matter of the suit. After the death of Chaturbhuja, defendant 2 was looking after the property. The plaintiff was away from village living with her husband. Later on she learnt about the deed of gift and the claim of defendant No. 1 as adopted son of late Chaturbhuja. The cause of action arose when defendants 1 and 2 declared that defendant 1 was the adopted son of the late Chaturbhuja and claimed under the deed of gift and threatened to dispossess the plaintiff from her interest.

5. During the hearing of the application in the court below, it was urged by the opposite parties that the petitioner had withdrawn a substantial amount from her Postal Savings Bank account after the filing of the application. The learned Subordinate Judge found that the petitioner had' deposited a sum of Rs. 5,000/- and that amount could be taken as her income for the year. So he held that the income per annum of the petitioner exceeded Rs. 3,000/-. The approach and the finding of the learned Subordinate Judge do not find favour with me. The deposit of a certain amount by the petitioner in a particular year does not by itself go to indicate her income for the year. There ought to be clear and categorical evidence to the effect. An applicant may have huge amount with her. That does not disentitle her to seek exemption under Section 18A. Section 18A reads as under : ''

'18A (1) Notwithstanding anythingcontained in this Act no plaint in respect of asuit filed by a woman whose annual incomedoes not exceed three thousand rupees, formaintenance or for enhancement ofmaintenance or for recovery of share in theestate of her deceased husband or parent inthe family property and no petitions filed byany such woman for divorce on ground ofcruelty or other misconduct on the part of herhusband shall be chargeable with court-fees.

(2) The Court in which such plaint or petition is filed shall have power to make such inquiry as it deems fit for assessing the income of the plaintiff or the petitioner, as the case may be.'

The learned Subordinate Judge confused between the provisions contained in Order 33 of the Civil P.C. and the provisions of Section 18A. What is relevant under Section 18A is not sufficient means to pay court-fees but the annual income.

This, however, does not conclude the matter because Mr. S. Misra- 2, the learned counsel for the opposite parties, drew my attention to the reliefs claimed and submitted that Section 18A was inapplicable.

6. Section 18A applies when the suit is one for recovery of share. Section 18A does not use the expression 'recovery of possession'. Having regard to the purpose of the beneficial provision, the expression should be given a very liberal interpretation so as to have the widest amplitude. A narrow or technical construction would defeat the purpose. A suit for recovery of share may take various forms. A suit for recovery of share by implication would involve clearing the obstacles on the path of realisation and enjoyment of the share. Where an impediment is put by an adoption being set up or transferees being brought in or by assertion of hostile title, the suit howsoever it is couched, will be one for recovery of share. The suit for the removal of the impediment would be one for recovery of share. She is not obliged to sue for partition. She could as well seek simply to recover her share. The object of the provision is to enable her to enjoy the interest of her deceased husband or parents unimpeded by lack of resources. For example, where one of the many co-sharers has alienated in excess of his share in the property thereby affecting the interest of the woman inherited from her deceased husband or parent, she might not choose to recover exclusive possession. She may still want to live with other co-sharers or even all the co-sharers jointly. Nevertheless, the impediment created by the co-sharers by the transfer has to be cleared. She may simply want a declaration of title unaffected by the sale by the co-sharers or for invalidating the sale deeds.

7. It has been brought to my notice that the property has been brought under notification under the Orissa Consolidation of Holdings and Prevention of Fragmentation of Land Act, 1972, and the consolidation authorities are competent to divide the property, but the suit has been filed because the reliefs sought are not obtainable before the consolidation authorities. Howsoever that may be the claim of defendant No. 1 as the adopted son of Chaturbhuja under the deed of gift in his favour and the sale deeds in favour of defendants 4 to 9 stand in the way of the applicant to the enjoyment of the property and for the realisation of that the obstacles have got to be removed. Hence in my opinion, the suit is one for recovery of share though it may not be one for partition, or recovery of possession. The legislature designedly has used expression 'recovery of share'. The narrow construction advocated by Mr. Misra, in my opinion, would be contrary to the intention of the legislature. I, therefore, hold that the annual income of the petitioner did not exceed Rs. 3,000/- and the action brought by her was within the purview of Section 18A. I would, therefore, vacate the impugned order and allow this revision. There would be no order for costs.


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