1. This is a petition by plaintiffs in O. S. No. 243 of 1949, whose suit for partition was dismissed by the learned District Munsif, to revise an order passed under Order 41, Rule 10 by the learned Subordinate Judge in appeal directing them to deposit Rs. 153-12-0, lower court costs, and to furnish immovable property security for Rs. 150 as probable costs in the appeal. This order was passed by the lower appellate Court on 13-3-1951. Time was given till 31-3-1951 to comply with this order. As there was no compliance, the appeal was rejected under Order 41, Rule 10(2), Civil P. C., on 31-3-1951.
2. The petitioners describe themselves as the minor son and junior wife respectively of one Nagappa Goundar who is said to have died in 1942. Defendants 1 to 3 in the suit are the sons of Nagappa Gounder by his first wife. The fourth defendant in the suit was Nagappa Gounder's brother Rangaswami Gounder. The suit for partition was resisted by the defendants on the ground that the second plaintiff, Bom-makkal, was only a concubine of their father Nagappa Gounder who left their village in 1921 and lived with Bommakkal in another village earning his livelihood as a cart driver. They relied on a release deed Ex. B.1 executed by Nagappa Gounder dated 11-10-1920 in favour of his brother the fourth defendant, by which he purported to release his rights in a half share in about eleven acres of land and a house for a sum of Bs. 200. There is a recital in Ex. B.1 that this was done at the instance of panchayatdars after his excommunication from the caste presumably for deserting his family and living with another woman who belonged to a different caste. The District Munsif dismissed the suit holding 'inter alia' that Bomniakkal was the concubine of Nagappa Gounder and that the minor plaintiff was therefore his illegitimate son and that the release deed of 1920 was a binding document. The learned Subordinate Judge in ordering security under Order 41, Rule 10 appeared to pay principal importance to the release deed Ex. E. 1 observing that unless and until the plaintiffs proved that it was sham as alleged, they cannot get a decree at the hands of the court, superseding the lower court's decree.
3. It is pointed out by Mr. Viraraghavan that under Ex. B. 1 Nagappa Gounder released his entire half share and from this point of view Nagappa Gounder's sons by his first wife, i.e., defendants 1 to 3, who are the main contestants in this litigation appear to be also affected by Ex. B. 1. I do not desire to make any comment on the merits except to say that on a careful consideration of the learned Subordinate Judge's order I do not think he exercised a proper discretion in requiring costs to be deposited ana security furnished under Order 41, Rule 10(1), C. P. C.
Such an order is ordinarily entirely in the discretion of the appellate Court and this Court sitting in revision would be most reluctant to interfere with the exercise of such discretion. Order 41, B. 10 is a section which is in actual practice, both in this court and throughout the muffasal, honoured more in the breach than in the observance. Under Order 41, Rule 10(1) an appellate court even without issuing notice to the respondent and without any application by the respondent may demand from the appellant security for the costs of the appeal or of the original suit. I have always taken the view that Order 41, Rule 10, should be applied by appellate courts 'suo motu' in suitable cases; but in actual practice this has been found to be impracticable, with the result that appeals are admitted and notice ordered in the ordinary course without the appellate court ever paying any attention to the exercise of its 'suo motu' discretion contemplated by Order 41, Rule 10 at the time of the admission of the appeal. Thisbeing so, it is very unfortunate that in the only case which has so far come to my notice in revision under Order 41, Rule 10, where on being moved by the respondent an appellate court has exercised its discretion and ordered security, I feel called upon to interfere.
4. The discretion under Order 41, Rule 10 is a very. nice one which an appellate court is called upon to exercise, as in giving its reasons it has to guard against expressing any strong views on the merits which may give the impression that they have been prejudged without hearing the other side. There is of course the ordinary presumption that the findings of the lower court are correct until they are set aside in appeal. The reason given by the learned Subordinate Judge for ordering security is a complaint by the respondents that the first plaintiff being a minor and the second plaintiff being a woman it would be difficult for them to realise their costs in the event of the appeal being dismissed. I do not see why a litigant should be penalised or handicapped by reason of a disability of this kind. The fact that the appellant is a minor or a woman should, in my view, be never taken into consideration to the matter of directing security on the ground that in the event of the appeal being unsuccessful the respondents may not realise their costs. Security should be ordered on other considerations.
In -- 'Ambalathilakath Kuttoossa v. Kunhamma Amma', AIR 1938 Mad 380 (A), Venkatasubba Rao and Abdur Rahman JJ. considered a case, reversing the order of a single Judge of this court, and directed the appellants in a first appeal to furnish security. It was pleaded there that the appellants were paupers but contended that there was another person financing and conducting the litigation. Their Lordships made the following observation :
'Does it follow from this that a pauper appellant can successfully resist the application by relying upon his own poverty? To hold so would be to frustrate the very object of the provision.'
Their Lordships then made the following observations, based on principles laid down by Lord Esher in -- 'Hood Bars v. Heriot', 1896 2 QB 375 (B):
'Where the liberty of the appellant is in question or where highly penal consequences will be entailed upon him by the order appealed against, the court as a general rule will refuse to order security for costs; that seems to be the true doctrine. Where the appeal raises grave issues which vitally affect the appellant's position, the court may well refuse to make an order, which will have the effect of stifling the appeal, although circumstances may exist which normally would justify an order for security.'
This is a case in which one of the plaintiffs is a woman, who, it appears to be common ground, lived for many years with Nagappa Gounder. In this suit she has sought to vindicate her position as his legally wedded wife and also a status of legitimacy for her son. It is urged by Mr. Seshadri for the respondents that the evidence shows that there is someone behind the litigation, one Choka-linga Konar who was instructing the suit on behalf of the plaintiffs in the trial court. Plaintiffs under disability like a woman and a minor must obtain the service of someone to assist them in their litigation. No prima facie adverse inference is warranted from this fact to justify an order of security. It is true the petitioners have incurred a good deal of costs in this litigation.
It is, I think, very unfortunate that in viewof the facts of this case the learned SubordinateJudge did not dismiss the application for securityfor costs and proceed to determine the appeal onits merits. He also did not give the plaintiffsvery much time to comply with the order forcosts and security before he rejected the appeal.I allow this petition and set aside the order passed under Order 41, Rule 10 and direct the appeal tobe restored to file and disposed of by the learned Subordinate Judge as expedifciously as possible.It is very regrettable that this appeal which wasrejected in 1951 should be restored to file nowafter a further delay of more than two and ahalf years. Costs of this petition will abide theresult and be provided for in the ultimate decreeto be passed.