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Velu and anr. Vs. Nagaraja Nattar and Four ors. - Court Judgment

LegalCrystal Citation
Subjectcivil
CourtChennai High Court
Decided On
Reported in(1980)2MLJ228
AppellantVelu and anr.
RespondentNagaraja Nattar and Four ors.
Cases ReferredBhupendra Kumar v. Phani Bhusan Paul
Excerpt:
.....before the court. granting, however, these well-known incidents of a coparcener's stakes in joint family estate, i cannot quite dismiss a coparcener as a man of no means, if his joint family, in fact, happens to possess properties of any value. some states like tamil nadu and bombay also recognize the right of a coparcener to alienate his coparcenary interest even before partition. on the contrary, it is now well-settled that partition of joint family properties does not confer a new title on the coparceners, but only redefines and crystallizes their pre-existing rights in those properties. this is not in any case, the intendment of order 33, rule 1. explanations (a] to the rule clearly refers to 'means' and not property-owing as the test of paying capacity. 13. i am satisfied..........not living separately, away from their father and that they are only living with their father as joint family members cultivating the family lands. the father has still got about 18 acres of lands from which he is getting income. as the plaintiffs are living with their father as joint family members they have their share in the ancestral properties of their father by birth. it is the duty of the father' to pay the necessary court-fees from the share of the petitioner's income of the joint family lands.from the evidence on record i come to the conclusion that the petitioners have sufficient means to pay the necessary court-fees.4. in this revision petition filed by the plaintiffs, their learned counsel mr. padmanabhan, characterized the reasoning of the learned subordinate judge as.....
Judgment:
ORDER

V. Balasubrahmanyan, J.

1. The only question in this civil revision petition is, whether the Court below was right in holding that the petitioners were not indigent persons, but had sufficient means to pay the deficit court-fee on their plaint, which, according to the checkslip, amounted to Rs. 2,347.

2. At the inquiry into the plaintiffs' pauperism, the learned Subordinate Judge found the following facts. The plaintiffs were the undivided sons of one Thulasi Nainar. Along with their father and another brother of theirs, they constituted a joint Hindu family. The plaintiffs were living jointly with their father. The family held, in all, 20 acres of land originally. Of these 1.75 1/3 cents were sold in the period between 1949 and 1963. In the remaining lands of the extent of nearly 18 acres, a mortgage had been raised as recently as in 1971.

3. On the above facts, borne out by the evidence, the learned Subordinate Judge dismissed the plaintiffs' petition under order 33, Rule 1 to continue the suit in forma pauperis. The learned Judge set out his reasons as under:

I come to the conclusion that the petitioners are not living separately, away from their father and that they are only living with their father as joint family members cultivating the family lands. The father has still got about 18 acres of lands from which he is getting income. As the plaintiffs are living with their father as joint family members they have their share in the ancestral properties of their father by birth. It is the duty of the father' to pay the necessary court-fees from the share of the petitioner's income of the joint family lands.

From the evidence on record I come to the conclusion that the petitioners have sufficient means to pay the necessary court-fees.

4. In this revision petition filed by the plaintiffs, their learned Counsel Mr. Padmanabhan, characterized the reasoning of the learned Subordinate Judge as based on a two-fold misconception of the law. The first mistake, according to learned Counsel, related to a misunderstanding of the extent of the rights of Hindu coparceners in the properties and funds possessed by their undivided family. The second misconception, he said, related to the requirements of Order 33, Rule 1 of the Code of Civil Procedure.

5. On the first aspect, Mr. Padmanabhan said that the learned Judge was in error in thinking that a coparcener in a Mitakshara joint family had any right to any share in the income or corpus of the family properties so long as the family remained joint. He said that the learned Judge was also in error in assuming that the kartha of a joint Hindu family was under a duty to pay the court-fees payable on the plaint in a private suit instituted by an undivided coparcener.

6. On the second aspect, Mr. Padmanabhan said that what the Civil Procedure Code in Order 33, Rule 1, required the Court to be satisfied about was the sufficiency of means of the particular individual who asks for leave to sue in forma pauperis, and not the possession of property in the hands of somebody else other than the petitioner before the Court. Learned Counsel added that it is no part of the inquiry under this provision to find if the petitioner could somehow draw upon some one else's resources for the purpose. If this were so, he said, any one who can beg, borrow or steal can be regarded as one possessed of the means of paying court-fee to the Government.

7. I may observe that by and large, Mr. Padmanabhan is right in his description of the legal position of an undivided coparcener in a Mitakshara joint family. So long as a family governed by the Mitakshara remains undivided, no coparcener therein can point to any item of joint family property or joint family income and predicate that he is entitled to it. He cannot even say, generally, that he is entitled in the gross to any defined share in the family properties as a whole, the reason being that as a coparcener, his interest in the joint family property does not relate to any definite or fixed share, but is ambulatory in character, liable to ups and downs according to the increase or decrease, as the case may be, of the strength of the membership of the coparcenary. Granting, however, these well-known incidents of a coparcener's stakes in joint family estate, I cannot quite dismiss a coparcener as a man of no means, if his joint family, in fact, happens to possess properties of any value. Modern Mitakshara law recognises for several purposes that what a coparcener possesses is a veritable 'interest' in the joint family property, which is spoken of variously as a coparcenary interest, as an undivided interest and as an undivided share. And it has long been recognised by Courts that where a coparcener borrows on his personal credit, his creditor can enforce the debt by having recourse to the undivided interest which the debtor has in coparcenary property. Only, the creditor has to work out his remedy by suing the members of the debtor's family for partition and then proceed against his debtor's divided share for recovery of the debt. Some states like Tamil Nadu and Bombay also recognize the right of a coparcener to alienate his coparcenary interest even before partition. Again while a coparcener has no dominion over any portion or share of joint family property until division takes place in the family, the processes of separation in status and partition by metes and bounds are themselves not regarded by Courts as conferring on the coparcener a new title, as if he did not possess any title to the properties before. On the contrary, it is now well-settled that partition of joint family properties does not confer a new title on the coparceners, but only redefines and crystallizes their pre-existing rights in those properties. It is, perhaps, this trend in the evolution of a coparcenary interest, recognizable, as such, to inhere in every undivided coparcener in a mitakshara coparcenary that had led the legislature to Make provision for testamentary dispositions by coparceners of their undivided interest in joint family property under Section 30 of the Hindu Succession Act, 1956. It is against this conception of a coparcenary interest being recognized as a distinct subject of ownership which has found expression in the statutory changes introduced in the law of succession on the intestacy of an undivided Mitakshara coparcener. It may be quite correct to say that under Section 6 of the Hindu Succession Act, 1956. the law accepts an undivided coparcener's interest as an 'interest' distinct enough for purposes of devolution. The enacting part of Section 6 restates the old doctrine of survivorship in a manner which brings out, in bold relief, the recognition which modern law accords to an undivided coparcenary interest, as such. One way of stating the principle of survivorship is to say that on the death of a coparcener, nothing happens at all to the coparcenary property, but the property continues to remain the property of the family, with one coparcener less, but with the other coparceners surviving. Section 6, however, even in its enacting part, prefers to speak of the deceased coparcener, as a coparcener 'having an interest' in the mitakshara coparcenary property, and proceeds to lay down that such an interest in the coparcenary property shall 'devolve' by survivorship upon the surviving members of the coparcenary. Although the section refers to the process of devolution as survivorship, yet it regards the coparcenary interest, as such, as the subject-matter of devolution by survivorship. With the rule of survivorship stated in this manner in the enacting part of Section 6. the proviso to the section requires only a little further step to lay down how the interest in coparcenary property should devolve when those who survive the coparcener's intestacy include his female heirs. It is, therefore, quite appropriate to speak of a member of a Mitakshara as a man who is possessed of an interest in coparcenary property even in an undivided State.

8. Even from the point of view of plain commonsense it would be odd to describe a member of a joint family as a penniless individual when his family is known to possess property. The modalities by which the law enables a coparcener to get at the income or corpus of the joint family estate may prove easy or difficult in varying degrees according to circumstances, but these cannot alter the position that in a family owning properties the individual members also must be held to be men of property according to their aliquot interests in the joint family estate. To introduce any other scale of values would be to shut our eyes to realities. Order 33, Rule 1, if anything, is a pragmatic provision, and directs its attention to economic realities and not to abstract juristic conceptions. I am not here concerned with the kind of situation in which a pauper coparcener sues for partition or other reliefs as against coparcenary property in the possession of others. Perhaps, in such cases, the law takes note of the fact that the plaintiff is not in possession of family properties. It is unnecessary to go into that question here. In the present case, the finding is that the plaintiffs were joint with their father and were jointly cultivating 18 acres of family property. In these circumstances, it would be unreal to hold that the plaintiffs are not possessed of any interest in property sufficient to set them up as men of means.

9. I do not also accept the other argument of Mr. Padmanabhan that in reckoning a suitor's means and the sufficiency of such means for the purpose of Order 33, Rule 1, the Court shall take note only of that individual's property holdings and nothing else. I grant that the Court cannot take note of a man's borrowing capacity or other propensities or proclivities for gauging his means. But I cannot accept the suggestion in the argument of the plaintiffs' learned Counsel that the test of paying capacity must be directly related to the extent of the plaintiff's property-holding. This is not in any case, the intendment of Order 33, Rule 1. Explanations (a] to the rule clearly refers to 'means' and not property-owing as the test of paying capacity. 'Means', in my judgment, connotes a man's resources. If a man can command, as of right resources, even though he may not technically own the sources in question himself, there can be no doubt that he would possess the means to pay court-fees within the contemplation of this rule.

10. In the present case, the facts go to show that the plaintiffs were not only joint with their father, but were in joint possession of the properties. They were, therefore, in a position to command the requisite resources to provide themselves with funds for payment of the court-fee. They could, as of right, have alienated their undivided shares or mortgaged them any day for raising the requisite fund, and nobody else in the coparcenary could object to such a course. The existence of 18 acres of valuable property as part of the family possessions does provide a measure of the means of the plaintiffs, even during their undivided state.

11. Mr. Padmanabhan referred me to a judgment of a learned single Judge of this Court reported in Manjini Mudaliar v. Karunanidhi (1973) 1 M.L.J. 404 : : AIR1973Mad399 : 86 LW 500(2) : AIR 1973 Mad 399, There, a member of a joint family possessed of an item of property filed a suit in forma pauperis, and the question was whether the petitioner's undivided share in the joint family property should be reckoned in judging the sufficiency of his means. The learned Judge observed that 'the plaintiffs' half share, forming the subject-matter of the suit, could not be taken into account for finding out his means. The share was not in his possession and it was not useful to him to carry on litigation'. I do not regard this decision as helpful in the present case-In the first place, the family property in question itself formed part of the subject-matter of the pauper suit. Secondly, the pauper plaintiff was not in possession of the property. These two considerations are absent in the instant case, and distinguish that decision. Besides, I find little or no discussion in the judgment as to what is the real purport of the expression 'sufficient means' occurring in Order 33, Rule 1 of the Code.

12. Mr. Padmanabhan also cited a decision in Bhupendra Kumar v. Phani Bhusan Paul AIR 1962 Tripura 22, Many questions are found discussed in this case. But the learned Judicial Commissioner held, inter alia, that the father's capacity to pay court-fees is not material for deciding the pauperism of his son. The judgment, how-ever, shows that the capacity of the son to pay court-fee was considered only from the standpoint of his being a son of the father. There was no question raised in that case as to the means of the son in the context of his being an undivided member of a joint family possessed of properties. This decision is, therefore, distinguishable.

13. I am satisfied that on the facts found by the Courts below, the only reasonable conclusion would be that the plaintiffs are possessed of sufficient means to pay the Court-fee within the meaning of Order 33, Rule 1.

14. It may be mentioned that during argument Mr. Padmanabhan represented that the father of the plaintiff is since dead. If so, that would have the effect of actually enlarging the pre-existing means of the plaintiffs.

15. For all the above reasons, this civil revision petition is dismissed and the order of the learned Subordinate Judge is confirmed. 'Time to pay court-fee three months from today.


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