NARAYANAN KRISHNAN Vs. KALLIYANIKUTTY AMMA

JUDGEMENT

(1.) In this Civil Revision petition by the respondents 3, 5, 6 & 15 in Pauper O. P. 15/67, which was instituted by the 1st respondent to sue in forma pauperis to recover a property alleged to have been alienated by the karnavan of the tarwad and to recover the same for and on behalf of the tarwad, the scope of Explanation (ii) of R.1 of O.33 C. P. C. has come up for consideration.

(2.) The Explanation (ii) of R.1 of O.33 C.P.C. reads.

(3.) The question whether an individual in a representative capacity sues has to pay court fee on the basis of the income of the institution which he represents came up for consideration first in a decision reported in Vellingiri Naicken v. Beemiah Chettiar, AIR 1949 Mad. 714 . There the consideration was whether some members of a village community sought leave to sue in forma pauperis to recover lands on behalf of the village community claiming that they are common lands should pay court fee on the basis of the income of that community. Rajamannar, J. as he then was, held that "the particular plaintiff suing in a representative capacity may be himself a pauper, but if he is suing on behalf of other persons, who cannot be described to be pauper, he is certainly not entitled to the benefits of O.33 by reason of his individual pauperism". This ruling was distinguished by the late Govinda Menon, J. in G. F. F. Foulkes v. Suppan Chettiar, AIR 1951 Mad. 296 ., in respect of a suit for the recovery of temple lands, the possession of which had to be given over to the trustees who however defaulted in filing the suit. In that case some of the relators of the temple sought to recover the property on behalf of the temple. It was held in that decision that the plaintiff was agitating for an individual right and they being individual paupers, they were entitled to file the suit in forma pauperis. But, quite a different decision had been placed in my hands for perusal which is the one reported in Thunoli Kelu Nair v. Nambrom Chirutheyi Amma, AIR 1954 Mad. 76 . That arose out of a suit by a junior member of a Marumakathayam tarwad under Explanation (iii) of R.1, O.33 C. P. C. which is identical to the Explanation (ii) of the Kerala R.1 of O.33 C.P.C. The learned Judge held that the plaintiff's pauperism had to be decided in representative capacity as if he was suing for and on behalf of the tarwad. It was found that the tarwad was possessed of ample properties in that case and so it was held that the plaintiff suing for and on behalf of the tarwad, should pay court fee on the basis that the tarwad was possessed of means. This decision was not, however brought to the notice of the Division Bench of this court when it decided the case reported in Ibrahimkutty Mather v. Josephine, 1964 KLT 962 . That decision , was to the effect that the plaintiff being a pauper in his individual capacity he could ' enforce that right and bring a suit for and on behalf of a Jewish congregation to recover possession of the property which had been alienated by it without any regard for the income of the congregation. This decision had also considered an earlier decision of this court reported in Usman v. Simon, 1959 KLT 276 . Of course that decision was prior to the amendment inserting Explanation (ii) to R.1 O.33 C.P.C. Anyway, the Division Bench considered the earlier decisions of Madras High Court and came to the conclusion that the plaintiff who filed the suit in forma pauperis as a member of a congregation and such being one for and on behalf of that congregation, the plaintiff who filed the suit in his individual capacity though for and on behalf of the institution, is entitled to sue in forma pauperis on the basis of his income and not on the basis of the income which is accrued in favour of the institution or the amount of the property which the institution possessed. Though the above Division Bench decision runs counter to the decision reported in AIR 1954 Madras 76, I am bound to follow the principles evolved in the Division Bench ruling. I am, therefore, of the opinion that in the present case the 1st respondent being a junior member of the tarwad, who is himself not possessed of means can sue in forma pauperis on a representative capacity on behalf of the tarwad, though the tarwad is possessed of sufficient means to pay the court fee. It is not correct to say that the 1st respondent would be in a position to collect the income of the tarwad or to deal with the tarwad property so long as the karanavan is alive. There is no case that the 1st respondent had any control or management over the tarwad property. Evidently, the management is vested with the 21st respondent, who is the karanavan. Under those circumstances, it cannot be stated that the 1st respondent will come by any income of the tarwad. It is proved that he is a pauper who did not possess income to pay court fee in the instant case. The fact that he represents the tarwad does not, therefore, justify to call upon him to produce evidence to establish that his tarwad is possessed of means. I find, accordingly, that the contention of the revision petitioner is not correct.