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Sumathykutty Amma Kamalamma and ors. Vs. Narayani Panikkathy Karthiyayani and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKerala High Court
Decided On
Case NumberCivil Revn. Petn. No. 928 of 1971
Judge
Reported inAIR1973Ker19
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 - Order 33, Rule 1
AppellantSumathykutty Amma Kamalamma and ors.
RespondentNarayani Panikkathy Karthiyayani and ors.
Appellant Advocate K.N. Narayanan Nair,; L.K. Chandrasekharan and; K. Velap
Respondent Advocate K.G. Devarajan, Adv. for Respondent No. 1
Excerpt:
- - d-l, which they cannot possibly do in the nature of the contentions raised by them, as it would presuppose that the alienation is good; while it should not be the attempt of any party coming to the court to evade payment of court-fee on the pretext that such party is pauper, the court has also a duty to ensure that in nogenuine case the cause of the litigant should fail if the enquiry reveals that in the ordinary course he is not in a position to raise the requisite amount to pay the court-fee in spite of making an earnest effort to raise funds by disposing of or creating charge over the property he owns. if the court is satisfied that the petitioner is not in such a position, the petition for leave to sue in forma pauperis has to be allowed......in o. p. no. 12of 1969 on the file of the subordinate judge's court, kottarakkara, are the revision petitioners. the petition is one under order 33, rule 1 of the code of civil procedure for leave to sue in forma pauperis. the first defendant in the suit contests the matter.2. the allegation in the plaint is that defendants 2 to 4 alienated an item of property in which the petitioners also are entitled to have a share, in favour of the 1st defendant. this alienation is stated to be for acquisition of the property covered by ext. d-l in the name of the revision petitioners and others. the first petitioner is the mother and petitioners 2 to 4 are her minor children.3. the revision petitioners contended inter alia that the alienation by defendants 2 to 4 was detrimental to their.....
Judgment:
ORDER

K. Bhaskaran, J.

1. Petitioners in O. P. No. 12of 1969 on the file of the Subordinate Judge's Court, Kottarakkara, are the revision petitioners. The petition is one under Order 33, Rule 1 of the Code of Civil Procedure for leave to sue in forma pauperis. The first defendant in the suit contests the matter.

2. The allegation in the plaint is that defendants 2 to 4 alienated an item of property in which the petitioners also are entitled to have a share, in favour of the 1st defendant. This alienation is stated to be for acquisition of the property covered by Ext. D-l in the name of the revision petitioners and others. The first petitioner is the mother and petitioners 2 to 4 are her minor children.

3. The revision petitioners contended inter alia that the alienation by defendants 2 to 4 was detrimental to their interests and the document under which that property was conveyed to a stranger is liable to be set aside. The prayer is that, as they are not possessed of sufficient means to pay the prescribed court-fee, they may be permitted to file the suit in forma pauperis. The first petitioner gave evidence in court to establish that she is not possessed of sufficient means to pay the Court-fee.

4. The learned Subordinate Judge on a consideration of the evidence let in and the documents on record came to the conclusion that the petitioners are possessed of sufficient means, and accordingly directed the petitioners to pay the prescribed Court-fee. The matter was taken up in appeal in C. M. A. No. 2 of 1971 on the file of the District Court, Quilon. The learned District Judge also came to the conclusion that the revision petitioners are possessed of sufficient means to pay the Court-fee and, therefore, dismissed the appeal.

5. In this revision petition the main contention of the counsel appearing for therevision petitioners is that the courts below have not considered the matter in its true perspective. According to the learned counsel, the courts below took into consideration irrelevant factors without approaching the matter with a sense of reality. It is submitted that the very contention raised by the plaintiffs in the suit is that the alienation by defendants 2 to 4 is detrimental to their interests and is liable to be set aside. The case of the contesting first defendant is that the alienation was for the purpose of acquiring Ext. D-1 property. The courts below held that if the first petitioner so chooses, she can raise sufficient funds by charging Ext. D-l property. I think, the reasoning of the courts below is fallacious. There is absolutely nothing to show that the revision petitioners have accepted Ext. D-l sale deed. When they question the alienation, it necessarily means that they have not accepted the purchase of Ext. D-l property for which consideration was found by the impugned alienation. Therefore, if the, view of the courts below is accepted, the revision petitioners may have to be compelled to accept the purchase under Ext. D-l, which they cannot possibly do in the nature of the contentions raised by them, as it would presuppose that the alienation is good; otherwise they cannot accept the property which was purchased with funds made available by the impugned alienation.

6. There are other practical difficulties also. The acquisition under Ext. D-l, I am told, is not in the name of the petitioners alone. The petitioners have only a joint interest in the property as co-owners. No doubt, there is no legal impediment in selling or charging the undivided interest in the immovable property held in co-ownership, provided the petitioners can find persons who are prepared to buy or advance money for such purpose. Normally there is less attraction for a person to take assignment of undivided interest or advance money creating charge over such undivided interest; that apart, in this case, petitioners 2 to 4 are minors. There is also no reference in the order and judgment of the courts below as to what exactly is the amount that the first petitioner could reasonably fetch by charging or selling her interest in Ext D-l property.

7. On a careful consideration of the whole matter, I find that the courts below have not made a practical approach to the question and that factors which are really material and relevant for determining the capacity of the petitioners to pay the Court-fee have not been taken into account. I, therefore, remand the matter to the trial Court for a fresh disposal after making due enquiry giving full opportunity to the contesting parties to let in evidence. While it should not be the attempt of any party coming to the court to evade payment of court-fee on the pretext that such party is pauper, the court has also a duty to ensure that in nogenuine case the cause of the litigant should fail if the enquiry reveals that in the ordinary course he is not in a position to raise the requisite amount to pay the court-fee in spite of making an earnest effort to raise funds by disposing of or creating charge over the property he owns. The mere fact that the petitioner (plaintiff) in a petition for leave to sue in forma pauperis, is stated to have some interest in immovable property by itself, should not be taken to mean that he has the means to pay the prescribed court-fee. The real test is whether the petitioner is in a position in the ordinary course to convert his possessions, if any, into liquid cash without undue hardship and delay for the purpose of paying the requisite court-fee. If the court is satisfied that the petitioner is not in such a position, the petition for leave to sue in forma pauperis has to be allowed. This should be the broad outline which should guide the court while taking decision on an application for leave to sue in forma pauperis.

8. This revision petition is disposed of as above. There will be no order as to costs.


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