Velu and Another vs Nagaraja Nattar and Others

V. Balasubrahmanyan, J.—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.

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.

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.

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.

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.

On the second aspect, Mr. Padmanabhan said that what the CPC 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.

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 u/s 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 u/s 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.

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.

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.

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.

Mr. Padmanabhan referred me to a judgment of a learned single Judge of this Court reported in Manjini Mudaliar Vs. Karunanidhi and Others,

, 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.

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.

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.

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.

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.