BALASUBRAMANIAM Vs. RATHINAM

JUDGEMENT

(1.) THIS is a petition to revise an order of the learned Subordinate Judge, tiruchirapalli, dated 13-3-1967 declining to grant permission to the petitioners to sue in forma pauperis in O. P. No. 57 of 1965 on his file. In the proposed suit two sets of properties, namely, A schedule and B schedule properties, are included, and the case of the petitioners is that both the schedule properties belong to their father Rajagopala Chettiar who was impleaded as 12th respondent in the said O. P. In 1931 Rajagopala Chettiar executed a deed of settlement in favour of his mother Rukmani Ammal in respect of A schedule properties. Under the terms of the document Rukmani Ammal was to enjoy the A schedule properties for her life without powers of alienation and after her life time one half of the properties was to devolve on the petitioners and the other half of the properties, on the brother of the 12th respondent. Subsequently, it is alleged, that Rajagopala Chettiar along with Rukmani Ammal executed a further document under which one half of A schedule properties which was to devolve on the petitioners was made over to the sons of Rajagopala Chettiar's brother. By a document dated 2-8-1945, the properties were sold in favour of one Mani Iyer and respondents 1 to 10 are the legal representatives of the said Mani Iyer. The prayer for the petitioners in respect of A schedule properties was for partition and possession of the petitioner's half share therein.

(2.) WITH regard to B schedule properties the allegation of the petitioners is that their father 12th respondent settled the vested remainder in the properties on the petitioners herein, retaining the right of enjoyment for his life. The further allegation of the petitioners in regard to the B schedule properties is that the 12th respondent ignoring the rights conferred on the petitioners under the settlement deed is trying to deal with the properties and thereby a cloud has been cast on the title of the petitioners to the vested remainder in B schedule properties, and that therefore it has become necessary for them to obtain a declaration to dispel the cloud.

(3.) RESPONDENTS 1 to 11 opposed the application filed by the petitioners to sue in forma pauperis. They contended that the B schedule properties were deliberately included in the O. P. so that the petitioners may claim to be paupers and get permission of the court for instituting the suit in forma pauperis. The 12th respondent, the father of the petitioner, did not appear in the proceeding. The learned Subordinate Judge, by his order sought to be revised, came to the conclusion that in view of the non-appearance of the 12th respondent, it was clear that he had no defence to the case of the petitioners with reference to B schedule properties and consequently the said properties fell within the scope of the explanation (ii) to Order XXXIII Rule 1 C. P. C. , that the petitioners had not satisfied the learned Subordinate Judge that they could not raise enough funds by mortgaging their rights over B schedule properties, and that in this view the petitioners could raise the necessary funds by mortgaging their rights over the properties considering that they are valuable properties. It is to revise this order the present civil revision petition has been filed and the learned counsel for the petitioners contends that the conclusion of the learned Subordinate Judge that B schedule properties fall within the scope of Explanation (ii) to Order XXXIII Rule 1 is illegal.