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Swaminathan Alias Muthuvelu Udayar Vs. the Official Receiver of Ramnad and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1937Mad549; (1937)1MLJ727
AppellantSwaminathan Alias Muthuvelu Udayar
RespondentThe Official Receiver of Ramnad and ors.
Cases ReferredManaji Rajuji v. Khandoo Baloo I.L.R.
Excerpt:
.....clear condition in contract that purchasers would have to definitely deposit balance amount by date stipulated in contract for sale show that time was essence of contract. - 6. an official receiver satisfied this conception of a person. that is a corporation, as well as a natural person. suits under the civil procedure code can be instituted not only by natural human beings but also by artificial persons such as a corporation or an idol and also by persons like executors, administrators, trustees and official receivers who represent the estate of another......individual capacity was not a pauper. the ground assigned was that 'the privilege of maintaining a pauper suit is a personal privilege granted to people who have no means of carrying on or continuing litigation'. this decision proceeds on the assumption that the 'person' referred to in explanation to order 33, rule 1, can only refer to a person suing in his own right and not to a person suing in a representative character or to an artificial person. the learned judge notices in the same case that it was conceded before him that an executor could not institute a suit in forma pauperis. this is the english rule but that rule is not applicable in india, as pointed out in in re bill i.l.r. (1884) mad. 390 which we prefer to follow.11. we are therefore of the opinion that the official.....
Judgment:
ORDER

Venkataramana Rao, J.

1. This case was admitted by Burn, J., on the ground that the question involved in the case is of some general importance. On the exact matter in question, there seems to be some difference of opinion. A Bench of the Rangoon High Court in Mitra v. Corporation of Royal Exchange Assurance A.I.R. 1930 Rang. 259 has taken the view that an Official Receiver cannot be allowed to sue as a pauper where he himself is possessed of sufficient funds to carry on the suit. A different view has been taken by the Allahabad High Court in Mohammad Zaki v. The Municipal Board of Mainpuri (1918) 16 A.L.J. 440. The nearest analogy in my opinion seems to be the case of an executor in regard to which the preponderance of opinion in this Court has been that he can be permitted to sue as a pauper if the estate which he represents, does not possess sufficient funds to carry on the suit - vide Sivagami Ammal v. Gopalaswami Odayar (1924) 48 M.L.J. 390 and Ammakannammal v. Damodara . A different view has been taken by Jackson, J., in A.S. Radhakrishna Aiyar In re (1924) 88 I.C. 91 : 6 P.L.T. 380 where I find the one side was not represented. I therefore think it desirable that this matter should be decided by a Bench. I accordingly refer this Civil Revision Petition to a Bench for disposal.

2. The case then came on for hearing before the Full Bench as constituted above.

Venkataramana Rao, J.

3. The question raised in this Civil Revision Petition is whether an Official Receiver, in whom the estate of an insolvent vested under Section 28, Clause 2 of the Provincial Insolvency Act by virtue of an order of adjudication made by the Court, can institute a suit as a pauper for the recovery of the said estate. The decision turns upon the construction of Order 33, Rule 1, Civil Procedure Code, which runs thus:

Subject to the following provisions, any suit may be instituted by a pauper.

Explanation. - A person is a 'pauper' when he is not possessed of sufficient means to enable him to pay the fee prescribed by law for the plaint in such suit, or, where no such fee is prescribed, when he is not entitled to property worth one hundred rupees other than his necessary wearing apparel and the subject-matter of the suit.

4. The point now in controversy is where an Official Receiver is a 'person' within the meaning of the above explanation. There is no definition of 'person' in the Civil Procedure Code. Prima facie, the interpretation of the said term in the General Clauses Act would apply, according to which a 'person' shall include any company or association or body of individuals, whether incorporated or not. This connotes that 'person' would include both natural and legal persons. This is in strict accordance with the conception of a person in law. In his book of 'Jurisprudence' (8th Edition) at page 329, Salmond observes thus:

So far as legal theory is concerned, a person is any being whom the law regards as capable of rights or duties. Any being that is so capable is a person, whether a human being or not, and no being that is not so capable is a person, even though he be a man. Persons are the substances of which rights and duties are the attributes. It is only in this respect that persons possess juridical significance, and this is the exclusive point of view from which personality receives legal recognition. Persons as so defined are of two kinds, distinguishable as natural and legal.

5. He further points out that a natural person is capable of a double personality. At page 335, he explains it thus:

It often happens that a single human being possesses a double personality. He is one man, but two persons. Unus humo, it is said, plures personas sustinet. In one capacity, or in one right, as English lawyers says he may have legal relations with himself in his other capacity or right... This double personality exists chiefly in the case of trusteeship. A trustee is, a person in whom the property of another is nominally, i.e., technically vested, to the intent that he may represent that other in the management and protection of it. A trustee, therefore, is for many purposes two persons in the eye of the law. In right of his beneficiary he is one person, and in his own right he is another.

6. An Official Receiver satisfied this conception of a person. The estate of the insolvent is vested in him to the intent that he may represent the insolvent and realise the estate and administer it in accordance with the provisions of the Act. He is thus clothed with the representative character of trustee. As Lord Selborne pointed out in Pharmaceutical Society v. London and Provincial Supply Association (1880) L.R. 5 A.C. 857:

There can be no question that the word 'person' may and ... prima facie does, in a public statute, include a person in law; that is a Corporation, as well as a natural person. But although that is a sense which the word will bear in law, and which, as I said, perhaps ought to be attributed to it in the construction of a statute unless there should be any reason for a contrary construction, it is never to be forgotten, that in its popular sense and ordinary use it does not extend so far.

7. The same view was taken by Lord Blackburn at pages 868 and 869. Unless therefore the context and the object of the enactment requires otherwise, 'person' in Order 33, Rule 1, Civil Procedure Code, should have the extended meaning given to it in law. Under Order 33, Rule 1, any suit may be instituted by a pauper, that is, the intended plaintiff in a suit can be a pauper. Suits under the Civil Procedure Code can be instituted not only by natural human beings but also by artificial persons such as a corporation or an idol and also by persons like executors, administrators, trustees and official receivers who represent the estate of another. Prima facie, therefore, having regard to the scheme of the Code, the context and object of the enactment would not exclude an official receiver from the category of persons within the meaning of the said rule. But it is contended that by reference to the necessary wearing apparel in the Explanation and the necessity of the presentation of the application by the applicant, in person, it can only contemplate a natural person. We think this contention is sufficiently met by the observations of Kumaraswami Sastri, J., in Perumal Koundan v. Thirumalarayapuram Jananukoola Dhanasekara Sanka Nidhi (1917) 34 M.L.J. 421 : I.L.R. 41 Mad. 624. Dealing with the argument with reference to the wearing apparel, he observes thus:

The explanation simply allows deduction of the value of wearing apparel and can only mean that if the applicant has necessary wearing apparel he can deduct its value. We do not think it can be construed to mean that only persons who in law can possess wearing apparel, can sue as paupers...

8. In regard to the physical presence of the applicant and his examination contemplated in the Code, the learned Judge observes thus:

Rule 3 of Order 33 of the Civil Procedure Code, in our opinion, only prohibits a pauper who is competent in law to appear in person from taking advantage of Order 33 of the Civil Procedure Code and appearing by a pleader or recognised agent instead of being present personally. It does not cover cases where from the nature of the case physical presence is impossible or where the law, owing to any disability, directs that all acts required by the Code should be performed by a next friend.

9. In a very early decision of the Madras High Court the word 'person' was understood as including persons in a fiduciary character. In In re Bill I.L.R. (1884) Mad. 390 in accordance with this interpretation, an administrator was held entitled to sue in forma pauperis. This interpretation was never departed from, excepting in one case decided by Jackson, J., in A.S. Radhakrishna Aiyar In re (1924) 88 I.C. 91 where the learned Judge seems to follow the decision in Manaji Rajuji v. Khandoo Baloo I.L.R. (1911) 36 Bom. 279 which has taken a contrary view. In Sivagami Ammal v. Gopalaswami Odayar (1924) 48 M.L.J. 390 it was pointed out following In re Bills that the word 'person' in Order 33, Rule 1, indicates a juridical person and that an executor can sue in forma pauperis. This is also the view taken by Kumaraswami Sastri, J. In Ammakannammal v. V.K. Damodara Mudaliar : AIR1928Mad66 (a case of an executor) and in Perumal Koundan v. T.J. Dhanasekara Sanka Nidhi (1917) 34 M.L.J. 421 : I.L.R. 41 Mad. 624 (a case of an Official Liquidator). In a recent decision dealing with a case of mutawalli reported in Srimati Mabia Khatun v. Sheikh Satkari (1926) 100 I.C. 264 Ghose and Cammiade, JJ., observed that the capacity of a person suing in a representative character must be kept distinct from his personal capacity and that a mutwalli, trustee or a shebait can be allowed to sue in forma pauperis.

10. The argument that was strongly pressed upon us and based on S.M. Mitra v. Corporation of the Royal Exchange Assurance A.I.R. 1930 Rang. 259 is that as the property vests in the Official Receiver and he is the legal owner of the insolvent estate, he cannot be allowed to sue in forma pauperis. The test is not whether a person is the legal owner, but whether as legal owner he is a pauper or not. If the principle of law is that a natural person in his own right is a different person when he is representing the estate of another, the test is whether in that representative character and as owner of that estate he is a pauper within the meaning of the explanation of Order 33, Rule 1. The said decision again does not draw a distinction between legal ownership vesting in a person by virtue in a person by virtue of his fulfilling the representative character and so long as he fulfils the representative character and the legal ownership vesting in a person by virtue of succession or inheritance. The case in Mohammad Zaki v. Municipal Board of Mainpuri (1918) 16 A.L.J. 440 also is in favour of the view that an Official Receiver can sue as a pauper. The case in Manaji Rajuji v. Khandoo Baloo I.L.R. (1911) 36 Bom. 279 relied on is the one where Devar, J., held that an executor was not entitled to sue in forma pauperis on the ground that he in his individual capacity was not a pauper. The ground assigned was that 'the privilege of maintaining a pauper suit is a personal privilege granted to people who have no means of carrying on or continuing litigation'. This decision proceeds on the assumption that the 'person' referred to in explanation to Order 33, Rule 1, can only refer to a person suing in his own right and not to a person suing in a representative character or to an artificial person. The learned Judge notices in the same case that it was conceded before him that an executor could not institute a suit in forma pauperis. This is the English rule but that rule is not applicable in India, as pointed out in In re Bill I.L.R. (1884) Mad. 390 which we prefer to follow.

11. We are therefore of the opinion that the Official Receiver in this case can be allowed to sue as a pauper, provided he fulfils the conditions laid down in the Explanation to Order 33, Rule 1, Civil Procedure Code. The case is therefore remanded to the lower court for the determination of the question whether the petitioner satisfies the condition laid down in the Explanation to Order 33, Rule 1, Civil Procedure Code and for disposal accordingly. Costs will abide the result.


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