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Ramakrishna Ayyar Dharmam by Its Hereditary Trustee, Ramakrishna Ayyar and anr. Vs. Umar Salai Muhammad Sait - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1948Mad351; (1948)1MLJ356
AppellantRamakrishna Ayyar Dharmam by Its Hereditary Trustee, Ramakrishna Ayyar and anr.
RespondentUmar Salai Muhammad Sait
Cases ReferredSeshayyangar v. Jainulavadin I.L.R.
Excerpt:
.....which he made had been put forward and which failed in this court at considerable expense to the defendants in that suit, and they or their successors are the defendants in the present suit. whilst it is necessary that special circumstances should exist before an order for security should be directed in an appeal in forma pauperis in my view, when the appellant is doing no more than seeking to assert a right which he has failed to assert in the trial court and, in addition, which his immediate predecessor-in-title failed himself to establish in a court of law, that is a circumstance which falls within the contemplation of the decision in seshayyangar v......the appellant challenges the correctness of that order.2. the appellant instituted a suit in forma pauperis in the court of the subordinate judge of madura. the suit was dismissed. he has now preferred an appeal also in forma pauperis against the learned judge's dismissal. it is in respect of that appeal that the order, now appealed against, was made.3. the claim by the appellant is to a considerable amount of property, the claim being based upon what is alleged to be a deed of trust dated 21st august, 1907, by which, according to the appellant, he has now become the sole hereditary trustee of the property, which property is dedicated to several charities. the learned subordinate judge in a very careful and exhaustive judgment found that the trust deed was no more than a sham and a.....
Judgment:

Frederick William Gentle, C.J.

1. This is an appeal pursuant to the provisions of Clause 15 of the Letters Patent of this Court against an order of Rajamannar, J., made on the 26th August, 1947, directing the appellant before the learned Judge to furnish security for the respondents' costs, pursuant to the provisions of Rule 10 of Order XLI of the Code of Civil Procedure. The appellant challenges the correctness of that order.

2. The appellant instituted a suit in forma pauperis in the Court of the Subordinate Judge of Madura. The suit was dismissed. He has now preferred an appeal also in forma pauperis against the learned Judge's dismissal. It is in respect of that appeal that the order, now appealed against, was made.

3. The claim by the appellant is to a considerable amount of property, the claim being based upon what is alleged to be a deed of trust dated 21st August, 1907, by which, according to the appellant, he has now become the sole hereditary trustee of the property, which property is dedicated to several charities. The learned Subordinate Judge in a very careful and exhaustive judgment found that the trust deed was no more than a sham and a colourable transaction. He pointed out that in the deed there is no total divestiture of the property by the settlor, also that no accounts had been maintained in respect of the estate income and expenditure, no communication had been made to any public institution with regard to the endowment of some charities, and that the deed provides a surplus income which is disproportionately large when compared with the amounts provided for charities, and which proportion was to be appropriated by the managing trustee, for the time being. The suit in which that decision was given was insti-tuted in the year 1945. In his lifetime, the appellant's father made an identical claim on his own behalf in the year 1932. That suit ended similarly, as did the suit with which the present appeal is concerned.

4. There is no doubt that, so far as this High Court is concerned, the provisions of Order 41, Rule 10, have application to appeals in forma pauperis. It was so found in Seshayyangar v. Jainulavadin I.L.R. (1880) Mad. 66 where it was observed that since leave to appeal in forma pauperis is given only when there is a prima facie reason for believing there are substantial grounds of appeal, very special grounds should be shown before a Court should be called upon to order security and to apply the provisions of Rule 10 of Order 1. That decision was given by this Court some 67 years ago, and in a considerable number of decisions, mostly by Benches of two Judges, the correctness of it has not been questioned, and it has been followed.

5. Rajamannar, J., in ordering the appellant to furnish security in respect of the respondents' costs to the extent of Rs. 3,000 gives as his reason those which have been found and which are required in one or other of the decisions of this Court, and particularly he pointed out that the respondents in this appeal never hoped to recover the costs from the appellant, the application for security was made promptly, the amount involved is large, and, on the merits, there is the factor of a previous unsuccessful attempt to enforce the same rights, which the appellant: is seeking to enforce, by his father during his lifetime.

6. It is not irrelevant to point out that by the suit the appellant is seeking to set aside a considerable number of alienations of property in respect of which the alienees: or the purchasers who are defendants in the suit gave full consideration. The longest time since the first of those alienations took place is some 36 years, as it was effected in the year 1911.

7. The appellant's suit was not the first time that the claim which he made had been put forward and which failed in this Court at considerable expense to the defendants in that suit, and they or their successors are the defendants in the present suit. Whilst it is necessary that special circumstances should exist before an order for security should be directed in an appeal in forma pauperis in my view, when the appellant is doing no more than seeking to assert a right which he has failed to assert in the trial Court and, in addition, which his immediate predecessor-in-title failed himself to establish in a Court of law, that is a circumstance which falls within the contemplation of the decision in Seshayyangar v. Jainulavadin I.L.R. (1880) Mad. 66 given some 67 years ago.

8. For the reasons given, in my view, this appeal should be dismissed with costs. Learned Counsel for the appellant has, with some force, asked us to extend the time by one month from to-day during which security directed by Rajamannar, J., should be furnished. In light of his forceful application, it should be granted since there is a prospect that security will be found.


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