D T DEIVASIGAMANI MUDALIAR Vs. T PARANDAMAN

JUDGEMENT

(1.) C.M.P. 9708 of 1987 by defendants 2 to 4 and 7 prays for granting leave to the petitioners to file the appeal A S.S.R. No. 52986 of 1986 as indigent persons. The suit, out of which the said appeal arises, viz., O.S. 262 of 1983 on the file of the Sub Court, Vellore was filed by the respondents 1 and 2 herein against the 3rd respondent-trust and other respondents and the petitioners herein, seeking specific performance of an agreement dt. 9-8-1983 (sic) to sell the plaint schedule trust properties. The suit was decreed. There are 9 trustees to the above said trust and after the disposal of the suit, a meeting of the trustees was convened, in which 7 trustees attended, and in the said meeting it was resolved by 4:3 majority not to prefer an appeal. The court fee payable on the appeal comes to about Rs. 16,000. Now the above said 3 trustees who voted against the said resolution along with another trustee have filed this petition to prefer the said appeal as indigent persons on the ground that the other trustees have refused to provide necessary fund for payment of court fee for the appeal, despite request made to them by the petitioners. No doubt, initially a report was called for from the Government. That report no doubt shows that individually the petitioners have substantial means.

(2.) BUT, the learned counsel for the petitioners contends that since they are preferring this appeal, representing the trust, their individual possession of sufficient means for payment of court fee should not be looked into. The learned counsel cited Explanation III to O. 33, R. 1 C.P.C, which runs as follows:? ?Where the plaintiff sues in a representative capacity, the question whether he is an indigent person shall be determined with reference to the means possessed by him in such capacity.? So, it is correct to say that the means possessed individually by the petitioners in their respective individual capacities should not be taken into account if the appeal is preferred in a representative capacity, representing the trust in question. The trust admittedly has funds. BUT the respondents 4 to 7 herein who are the other trustees of the trust and who were defendants 3, 6, 8 and 9 in the suit contend that after getting legal opinion, the Board of trustees had resolved that it was not worth while, to prefer the appeal and that in such a situation the petitioners cannot be allowed to prefer the appeal representing the trust as indigent persons and that if the appeal is ultimately dismissed with costs, the trust could not be burdened with the said cost. The trust deed in question, viz., the document dated 20-11-1960 which was shown to me, specifically provides that if there is any disagreement among the trustees, the majority decision among them shall prevail and that the Managing Trustee has a casting vote.

(3.) HENCE C.M.P. 9708 of 1987 is dismissed. However, six weeks time is given for payment of court fee. In view of the above said order, C.M.P. 9709 and 11464 of 1987 are also dismissed.