Prabhakar represented by his father and next friend Muthu and Another vs Dhanalakshmi Ammal

S. Jagadeesan, J.—The appellants filed the suit for declaration of their title to the suit properties and for recovery of possession and also for

damages of Rs. 1 lakh. Their case is that the suit properties were purchased by one Sandanambal, the great grandmother of the appellants in the

year 1948. She executed a will on 6.8.1964 in favour of her daughter Radha Ammal in respect of ''A'' Schedule properties and in respect of ''B''

Schedule properties Radha Ammal was having a life estate under the Will without any power of alienation, But, however, the said Radha Ammal

had sold away both ''A'' and ''B'' schedule properties as early as 22.4.1967 to one Periyathambi Pillai. The defendant had purchased the

properties from the Periyathambi Pillai on 24.5.1973. Now the suit has been filed on the ground that in respect of ''B'' Schedule property the said

Radha Ammal has no power of alienation and hence the sale deed executed by her is not binding on the appellants.

The appellants filed O.P. No. 34 of 1991 on the file of Sub Court, Villupuram, seeking permission to file the suit as an indigent person. The

minors are represented by their fathers. They claimed that they are the grandsons of the said Radha Ammal, and they are entitled to the property as

per the will of their great grandmother.

The lower court had dismissed the O.P., on the ground that the relationship pleaded by the petitioners is denied by the respondent and no

evidence has been let in by the petitioners to establish the relationship. Further, the recitals in the sale deed Ex.A-2 reveals that from out of the

consideration, another house is to be purchased and the petitioners had not let in any evidence as to whether the said Radha Ammal had purchased

any property, as mentioned in the sale deed. In the absence of these material factors, they cannot be permitted to file the suit as in forma pauperis.

The learned Counsel for the appellants contended that the lower court, without considering the pauperis of the minors, had proceeded to find

out the solvency of their father and dismissed the O.P. on the ground that the fathers, the guardian of the minors, are possessing sufficient means.

Further the court below, at the time of the enquiry into pauperism, had virtually gone into the merits of the suit and found that the appellants have

not made out a prima facie case. Only during the trial, the appellants have to establish the title and not at the stage of enquiry in the pauper O.P.

Hence the order of the lower court is liable to be set aside.

The counsel for the respondent contended that when the relationship of the appellants with regard to Radha Ammal is disputed, the entitlement

of the appellants to the suit property itself is highly doubtful. Moreover, the appellants have not chosen to file any reply to the counter filed by the

respondents. Either they should have filed reply to the counter or at least they should have got into the box to establish their prima facie claim. In

the absence of the denial of the statement made by the respondents in their counter, the court below is right in acting upon the counter and

dismissed the pauper O.P.

I heard both the counsel. As pointed out by the counsel for the respondent, the relationship itself has been disputed in the counter filed by them.

The appellants have not chosen to file any reply. Even in the evidence, they have not denied the averments made by the respondents in their

counter. Here admittedly the fathers of the respective minors have filed the suit claiming that the minors are entitled to the property. The allegation

in the petition is as follows:

The plaintiffs demanded for redelivery of the properties from the defendant. But the defendant refused to hand over possession of the same to the

plaintiffs. Hence the suit. Since the plaintiffs are poor and indigent persons and unable to affix the court-fees they are constrained to file the suit in in

forma pauperis. The plaintiffs did not possess any properties except the suit properties described hereunder B Schedule. The plaintiffs have not

entered into any agreement for sale in respect of the suit properties.

Admittedly the guardians of the minor plaintiffs are owning the properties. Absolutely there is no averment as to either those properties are joint

family properties or separate acquisition of the guardians. In case these properties are the joint family properties, the minors will naturally be

entitled for a share. Since the appellants have not clearly given the particulars of the assets, they are not entitled for the leave to file the suit as

indigent persons. In the absence of full particulars, the bald statement on behalf of the minors, cannot be accepted. There is no ground to interfere

with the order of the lower court.

Hence, the appeal is dismissed.