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Mukkamalla Venkatasubba Reddi, Minor by Mother and Guardian Venkatamma and anr. Vs. Mukkamalla Kesava Reddi Alias Dastagiri Reddi, Minor by Next Friend Rachamreddi Chinna Reddi - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtChennai
Decided On
Case NumberCivil Revn. Petn. No. 938 of 1946
Judge
Reported inAIR1950Mad297
ActsCode of Civil Procedure (CPC) , 1908 - Order 33, Rules 1 and 2
AppellantMukkamalla Venkatasubba Reddi, Minor by Mother and Guardian Venkatamma and anr.
RespondentMukkamalla Kesava Reddi Alias Dastagiri Reddi, Minor by Next Friend Rachamreddi Chinna Reddi
Appellant AdvocateKasturi Seshagiri Rao and ;Kasturi Sivaprasada Rao, Advs.
Respondent AdvocateK. Umamaheswaram, Adv.
DispositionPetition allowed
Excerpt:
- - he is expected to disclose whatever properties he is possessed of in the sense of not only whatever property he is actually possessed of but also whatever property he is entitled to, apart from the subject-matter of the suit, and which he failed to do......and therefore the respondent was in a position to pay the court-fee payable on the plaint. the learned judge held that in so far as the cash and jewel and silver articles were concerned he accepted the evidence on the side of the respondent and held that nothing was available with the respondent or his mother or his next friend for paying the court-fee. as regards the immoveable properties, the learned judge observed that the evidence on the side of the defendant no doubt supported the allegations made by them, but in view of the fact that the respondent's father had left another widow who was living in bhimagundam he held that the respondent was not in actual possession or enjoyment of any land belonging to his father and that he had no property upon the security of which he could.....
Judgment:
ORDER

Krishnaswami Nayudu, J.

1. This is a revision against the order of the District Judge of Cuddappah allowing the application of the plaintiff respondent for leave-to institute a suit in forma pauperis. The defendants-respondents in the application for leave to sue as a pauper have preferred this revision petition.

2. The suit is one for partition and in the petition the respondent who is a minor and who is represented by his maternal grandfather as next friend stated that excepting the clothing that was mentioned in the Schedule o to the plaint he had no means to pay the court-fee. It was alleged on behalf of the defendants that the petitioner was possessed of immovable properties worth Rs 2000/- at Bhimagundam village inherited by him from his father ; besides the father left some four seers of gold and silver and Rs. 2000/- in cash and therefore the respondent was in a position to pay the court-fee payable on the plaint. The learned Judge held that in so far as the cash and jewel and silver articles were concerned he accepted the evidence on the side of the respondent and held that nothing was available with the respondent or his mother or his next friend for paying the court-fee. As regards the immoveable properties, the learned Judge observed that the evidence on the side of the defendant no doubt supported the allegations made by them, but in view of the fact that the respondent's father had left another widow who was living in Bhimagundam he held that the respondent was not in actual possession or enjoyment of any land belonging to his father and that he had no property upon the security of which he could raise the necessary funds for paying the court fee.

3. It is argued that there is evidence, documentary and oral, which the learned Judge has practically accepted that there were two items of lands covered by EXS. D-l and D-2, one purchased in the name of the respondent's father and the other in the joint names of the respondent's father and his stepmother. But it is in evidence on the side of the respondent that the properties were not in his possession or in the possession of his mother. There is no doubt some immovable property in which the respondent as son of his father has saleable interest, and it is not shown that he is unable to raise the money required for payment of the court-fee payable on the plaint. In view of this, the finding of the learned Judge that he has no property upon the security of which he could raise the necessary funds for paying the court-fee cannot be supported. It is not the case of the respondent that he tried to raise the money, but in view of the fact that the stepmother was in possession he was unable to do so; in fact the existence of the property itself was not disclosed in the petition filed for leave to institute the suit in forma pauperis. He is expected to disclose whatever properties he is possessed of in the sense of not only whatever property he is actually possessed of but also whatever property he is entitled to, apart from the subject-matter of the suit, and which he failed to do. The learned counsel for the respondent relied on Rama. nuja v. Gopalan : AIR1934Mad561 , which was a case where the properties were mortgaged and the question was whether he could raise money on his equity of redemption. The learned Judge observed that it depended upon the circumstances of each case and cannot be laid down as an abstract proposition that in every case where the plaintiff has got a mortgage or a similar claim he cannot be regarded as a pauper. Similarly, it cannot be said that a person can be held to be a pauper without some further evidence that he was not able to raise moneys on the property in which he has got a saleable interest.

4. I am therefore of opinion that the lower Court erred in permitting the respondent to institute the suit in forma pauperis and has not applied its mind and found whether in view of the evidence before it, it has been established that the respondent was not able to raise money on the security of this property, and I therefore set aside the order and remand the application to the lower Court for being disposed of according to law. Costs will abide the result of the pauper petition.


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