PALANIANDI Vs. LOGAMBAL

JUDGEMENT

(1.) THE second defendant in O.S. 169 of 1980 on the file of the Sub-Court Tiruchirapalli, is seeking to prefer the appeal against the judgment and decree of the Court below, in forma pauperis. He has filed C.M.P. 13385 of 1984 to permit him to file the appeal as an indigent person on the ground that he has no means to pay the court-fee. A counter affidavit has been filed by the plaintiff-respondent contending that the appellant's one-fourth share in the suit properties was not disputed even in the pleadings and that, therefore, that one-fourth share cannot be treated as the subject-matter of the suit. Accordingly, the contention is that the second defendant has the means to pay either from the income referable to his one-fourth share or by sale of mortgage of that share. THE suit was filed by the plaintiff for partition and separate possession of her one-fourth share in the plaint schedule properties. According to the plaintiff, the plaint schedule properties originally belonged to one Madurai Maniakkarar. THE said person had two sons by name Pandian and Chinnaswami. THE first and second defendants are the two sons of Pandian. THE third defendant is one of the daughters of Chinnaswami and the plaintiff is the daughter of a predeceased daughter of Chinnaswami. On those pleadings the plaintiff stated that she is entitled to one-fourth share and defendants 1, 2 and 3 are each entitled to one-fourth share. THE third defendant supported the case of the plaintiff. However, defendants 1 and 2 contested the suit. THEy contended that by a release deed, marked as Ex.B2, in the case, Meenakshi, the third defendant, and the plaintiffs mother Ramayee, released whatever right, title or interest they had in the property of Madurai Maniakkarar and that, therefore, they are entitled to a half share each and the plaintiff and the third defendant are not entitled to any share. THE defendants also contended that the first and second defendants are not divided and that the entire property is in the possession of the first defendant. THEre is no dispute in this case, that apart from the admitted share of one-fourth in the suit properties, the second defendant had no other properties. However, it may be mentioned that as stated earlier, the second defendant was claiming one half share though the plaintiff had conceded only one-fourth share. THE question, therefore, for consideration is whether the appellant could be said to be an indigent person who is not possessed of sufficient means to pay the court-fee.

(2.) PRIOR to the amendment of the Code of Civil Procedure by Act 104 of 1976, O.XXXIII, R.1 as applicable in Madras, read as follows -