1. The first respondent is dead, and the appellant has elected to proceed against the other respondent alone. This other respondent is the Secretary of State for India, on whose behalf no one has appeared.
2. The main question is as to the propriety of the lower Court's order in so far as it directs the appellant (who was the first defendant in that Court) to pay the Court-fees due to Government in consequence of the plaintiff having been allowed to sue in formd pauperis. The plaintiff claimed a moiety of property valued at Rs. 34,662, and was given a decree for only Rs. 100. The Court-fees which the first defendant (now appellant) has been directed to pay on account of the plaintiff amount to Rs. 699.
3. The plaintiff's case was that he was entitled to a moiety of property (of the above value) in the possession of his sister, the first defendant, as being 'ancestral property and property jointly acquired' in which he and the first defendant 'have equal rights, according to law and the custom of their caste.'
4. As to the plaintiff's allegation that the mother of himself and the first defendant left property, the Judge's finding is that the mother was barely able to maintain herself and her two children, that she used to borrow, and that she did not train up her children in the usual accomplishments of their caste, the reason being that she could not afford it.' The Judge finds that there is evidence that the mother 'had a gold patteda worth Rs. 50,' and he adds 'she must have had some cooking utensils'; but he 'cannot find it proved that she possessed any other property'; and the conclusion arrived at is as follows:-'Giving the plaintiff's case every allowance, I cannot put the value of ancestral property, i.e., property acquired by the mother of the plaintiff and the first defendant at more than a couple of hundred rupees.'
5. As to the second issue recorded, viz., 'Whether the property in possession of the first defendant is joint and ancestral property of the plaintiff and first defendant or whether it is the separate and self-acquired property of the first defendant,' the Judge's finding is that it was acquired by the first defendant while she was in the keeping of a wealthy man, one Vinam Venkataratnam, and that, with the exception of a very small portion which, giving every allowance to the plaintiff, cannot be put at more than Rs. 200, the rest is the first defendant's own self-acquisition. Hence his decree in favour of the plaintiff for a sum of Rs. 100 only.
6. The reasons assigned for directing the first defendant to pay the whole Court-fees payable on the plaint are as follows:
The plaintiff and the first defendant were by birth in the same position. Both plaintiff and the first defendant have lived disreputable lives--the first defendant being a prostitute, while the plaintiff was the hanger-on of a prostitute. Yet himself is a pauper, and the first defendant has acquired comparatively great wealth; in the undefined state of the law, this induced the plaintiff to attempt to get a share, he has failed, and she has succeeded in resisting his claim by setting up a disreputable defence. There is a large sum due to Government for stamp duty. In these circumstances, I think it right to direct that the first defendant, considering the nature of her defence, be ordered to pay her own costs and the stamp duty due to Government.
7. As to the defence set up by the first defendant, it has been found to be a legally valid one, and such being the case, and she having succeeded in proving her exclusive right to the bulk of the property in her possession, the mere fact of a large sum being due to Government for stamp duty, which it will be impossible to recover from the plaintiff, is no reason for directing the first defendant to pay the same. The utmost that the first defendant could have been directed to pay is the Court-fees on the Rs. 100 decreed to plaintiff. Even as to this, however, it is objected by the appellant that she is not liable, as neither by law nor by custom of the caste was the plaintiff, being a male, entitled to any share in the property left by the mother of the plaintiff and the first defendant. There is, however, evidence adduced in the case which goes to show that, by the custom of the Bogam caste in the Godavari District, property left by a mother is divided between the sons and daughters.
8. There is, therefore, no reason for disturbing the lower Court's decree so far as it awarded to the plaintiff a sum of Rs. 100; but the decree in so far as it directs the first defendant to pay the whole of the Court-fees due to Government on account of the plaint must be modified and the first defendant directed to pay the Court-fees in question only on the Rs. 100 decreed against her; the rest being directed to be paid by the plaintiff, or (as he is now dead) out of the assets, if any, left by him.
9. The lower Court's decree must be modified as above. Under the circumstances of the case there will be no order as to the costs of this appeal.
Muttusami Ayyar, J.
10. The only question which arises in this appeal is whether the Judge is right in directing the appellant to pay the Government the stamp duty due on the plaint presented by her brother as a pauper. The plaintiff being now dead, the Secretary of State is the only respondent before us, and he does not appear by counsel to oppose this appeal. The appellant's brother claimed from her partition of what he described to be ancestral and joint property of Rs. 34,662 value, alleging that, according to the rules of their caste, he was entitled to a half share. The appellant's defence was that her mother, who was a sani or a dancing-girl, died very poor; that she trained neither the appellant nor her brother in music or dancing; that there was no ancestral property, and that the appellant acquired the property in her possession by practising the profession of her caste, viz., prostitution. The Judge found that the ancestral property of which the appellant's brother was entitled to a moiety was but of Rs. 200 value, and that the rest of the property in her possession was acquired by her from a wealthy man named Vinam Venkataratnam, who had kept her, and inherited considerable property from his father. On this view of the facts, the Judge awarded to the appellant's brother a moiety of property worth Rs. 200, and dismissed the rest of his claim extending to property worth Rs. 34,262. He refused the appellant, however, her costs, and further directed her to pay the Court-fees due to Government mainly on the ground that she had set up a disreputable defence. Two objections are urged in appeal, viz., that, by the custom of the caste, the appellant's brother is not entitled even to Rs. 100 decreed to him, and that the direction as to payment of stamp duty was illegal.
11. I do not think that either the defence set up by the appellant or her profession as a prostitute is sufficient to support the direction. Notwithstanding her profession, she (appellant) has rights of property and is entitled to the protection of law, and no penalty can lawfully be imposed upon her for pleading what is found to be substantially true to entitle her to such protection. The direction, therefore, that she should pay Court-fees in excess of Rs. 100 decreed against her cannot be supported.
12. As regards the sum of Rs. 100, the respondent has clearly a charge to that extent on the property decreed to the pauper plaintiff under Section 411, Code of Civil Procedure. Both parties relied on the custom of their caste in support of their respective contentions, and the Judge found upon the evidence that the plaintiff was entitled to a share. I see no sufficient reason to disturb the finding.
13. I am also of opinion that the decree appealed against must be set aside so far as it directs the appellant to pay Court-fees in excess of Rs. 100.