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Padmanabha Pillai Krishna Pillai Vs. Damodaran Vasudevan and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKerala High Court
Decided On
Case NumberC.R.P. No. 80 of 1963
Judge
Reported inAIR1965Ker18
ActsCode of Civil Procedure (CPC) , 1908 - Order 33, Rule 1
AppellantPadmanabha Pillai Krishna Pillai
RespondentDamodaran Vasudevan and ors.
Appellant Advocate K.C. John, Adv.
Respondent Advocate T.S. Krishnamoorthy Iyer, Adv. for Respondents Nos. 1 and 2 and Minor Respondents 3 to 7 are represented by their guardian Respondent No. 1
DispositionRevision dismissed
Cases ReferredVeilingiri Naicken v. Sree Patteswaraswami Devasthanam
Excerpt:
- .....in a representative capacity, the question of pauperism shall be determined with reference to the means possessed by him in such capacity'.5. this explanation was added by notification published in the kerala gazette dated 9-6-1959. prior to this, the madras high court had, by an amendment, included the same explanation. it has been held by the madras high court in the decision reported in veilingiri naicken v. sree patteswaraswami devasthanam, air 1949 mad 714:'under explanation (iii) when a plaintiff sues in a representative capacity, the question of pauperism shall be determined with reference to the means possessed by him in such capacity. for instance, the particular plaintiff suing in a representative capacity may be himself a pauper; but if he is suing on behalf of other persons.....
Judgment:

Joseph, J.

1. An application to sue in forma pauperis was dismissed by the Court below on the ground that the petitioner was possessed of means. He has therefore preferred this civil revision petition.

2. The suit was filed by the karnavan of a marumakkathayam tarwad on behalf of the tarwad. The tanvad was possessed of a plot of land, 14 cents in extent. The petition was filed in the court below on 10-2-1962. On 9-12-1961 the petitioner had mortgaged this property for a sum of Rs. 200/-. The court below found that the value of the property was Rs. 2,450/- that the mortgage (Ex. D 1) was a suspicious document and that even if the mortgage was valid the price of the equity of redemption was more than sufficient to pay the court-fee of Rs. 1,091.25.

3. Two points were raised on behalf of the petitioner. One was that the court below was not justified in valuing the property at Rs. 2,450/-. This valuation was based on the price of a neighbouring property situated 300 feet away sold under Ext. D 3 dated 23-3-1957. Ext. D 3 was proved by the first respondent who was examined as C. P. W. 1. He stated that the 14 cents belonging to the tanvard would fetch the same price. I do not feel there is any justification in interfering with this finding.

4. The second point was that even if the tarwad was possessed of property sufficient to pay the court-fee, the petitioner in his individual capacity was not possessed of any property and that he was therefore entitled to sue in forma pauperis. Reliance was placed on the decision in U. M. Us-man v. Mayor Simon, AIR 1959 Ker 218 : 1959 Ker LJ 203. Since then an explanation has been added 'to rule 1 of Order XXXIII, Code of Civil Procedure which reads as follows:

'Where the plaintiff sues in a representative capacity, the question of pauperism shall be determined with reference to the means possessed by him in such capacity'.

5. This explanation was added by Notification published in the Kerala Gazette dated 9-6-1959. Prior to this, the Madras High Court had, by an amendment, included the same explanation. It has been held by the Madras High Court in the decision reported in Veilingiri Naicken v. Sree Patteswaraswami Devasthanam, AIR 1949 Mad 714:

'Under explanation (iii) when a plaintiff sues in a representative capacity, the question of pauperism shall be determined with reference to the means possessed by him in such capacity. For instance, the particular plaintiff suing in a representative capacity may be himself a pauper; but if he is suing on behalf of other persons who cannot be described to be paupers, he is certainly not entitled to the benefit of Order' XXXIII by reason of his individual pauperism.'

6. IN AIR 1959 Ker 218 : 1959 Ker LJ 203 Kumara Pillai J. expressed a doubt whether the explanation to Rule 1 of Order XXXIII, C. P. C. would support the view taken in the two decisions of the Madras High Court referred to in that judgment, and observed that in the absence of a similar provision in Kerala it was unnecessary to pursue the question. The observations in AIR 1959 Ker 218 : 1959 Ker LJ 203 cannot therefore be taken to have decided the effect of this explanation. I am inclined to follow the view taken by Rajamannar C. J., in AIR 1949 Mad 714 and to hold the petitioner is possessed of means.

7. No other point arises in this civil revision petition. It is accordingly dismissed with costs.


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