P V CHANDRASEKHARAN Vs. THIRUMALAI CHIT FUNDS

JUDGEMENT

(1.) This petition is filed by the appellants, who are the defendants, to grant leave to them to file the appeal as indigent persons, againstsons, against the judgment in O.S. 361 of 1983, Sub Court, Salem. It is alleged in the affidavit filed by the second petitioner, for himself and on behalf of other appellants, in support of the said application that a preliminary decree was passed against them directing them to pay a sum of Rs. 7,41, 699.18 together with interest at 6 per cent per annum on Rs. 5,01,600 from the date of the decree till the date of realisation, on the basis of deposit of title deeds on 22-10-1982 and that the said suit was decreed on incorrect appreciation of facts and law. They have no means or resources to pay the requisite court fee of Rs. 56003.75. It is further alleged that apart from an investment of Rs. 28,000 with the United Solvent Extractions Pvt. Ltd., at Duriva Kurichi and a monthly income of Rs. 200 he has no other movable or immovable properties. The appellants have no properties and they have not alienated or transferred any property within two months prior to the filing of the above appeal and they have also not entered into any contract with any one in respect of the subject-matter of the appeal. Hence, they pray for permission to file the appeal as indigent persons. The said application is resisted by the respondents. The 6th respondent filed the counter-affidavit for himself and other respondents denying the allegations stated in the affidavit fled by the second petitioner. It is contended that the father of the petitioners left O.80.5 Hec. in Valayamadevi Village, Attur taluk and after the death of their father, the petitioners became the owners of the properties and the same have been registered in their names. The said properties are worth more than Rs. 1.5 lakhs, and the 6th respondent is willing to purchase the properties for Rs. 1 lakh if sold by the petitioners and also pay a sum of Rs. 56,000 towards court-fee. It is further alleged that petitioners 1 and 2 (P.V. Chandrasekharan and P.V. Srinivasan) have got shares of the total face value of Rs. 80,000 with the United Solvent Extractions Pvt. Ltd., at Deviakurichi, that the market value of those shares is Rs.2 lakhs and that the sixth respondent is prepared to purchase those shares if transferred in his name for Rs. one lakh. It is further alleged that the 4th petitioner Janardhana Gupta is conducting business in oiled and de-oiled rice bran while the second petitioner P.V. Srinivasan is running a same business under the name and style of Sri Sudarsan Enterprises.

(2.) Findings were called for from the Master with regard to the means of the petitioners. Learned Master after recording the evidence of P. W. 1 and R. W. 1 has submitted his findings to the effect that- "On consideration of the evidence adduced at the time of enquiry, I find that the first and second petitioners own shares worth of Rs. 80,000 and the same is available for sale and there is intending buyer to purchase it for Rs. 54,000 and the petitioners own 2.16 cents of land in Vanayamadevi village and that too is available for sale and there is intending buyer to purchase it for Rs. one lakh with mortgage or without mortgage and as such the petitioners are not indigent persons." Again the matter came up for hearing before this Court after receipt of the said findings. Learned counsel for the petitioners, Mr. R.M. Krishna Raju, submitted that in view of the fact that the petitioners are not stated to have possessed of any ready cash on the date of the plaint, from the mere fact that they are possessed of certain properties and the respondents offered to purchase the properties and in evidence P. W. 1 accepted the offer, it cannot be held that the petitioners are possessed of sufficient means and they are bound to sell the properties under restraint. According to the learned counsel, for sale of the shares, it has to be approved by the Board of Directors and that there is impediment in this regard.

(3.) On the other hand, the learned counsel for the respondents, Mr. B.T. Seshadri, submitted that the report of the Master on the question of means is final since it is only this court which delegated the authority to the Master and called for the report and when once after due enquiry a report is submitted, it is final. The learned counsel also submitted that in the instant case it has been established beyond all doubt that the petitioners have not disclosed their assets. Further, they have got sufficient means to pay the court fees. Learned counsel drew my attention to para 3 of the affidavit filed by the second petitioner for himself and on behalf of the other petitioners. It was pointed out that they have disclosed only an investment of Rs. 28,000 with the United Solvent Extraction Pvt. Ltd., at Durviakurichi, and his monthly income of Rs. 200. Except this he has simply stated that they have no other property. He has also pointed out the various admissions made by P. W. 1, in his evidence, wherein he has admitted that after the death of his father, in 1981, the petitioners became the owners of the vacant land in Velaimadevi village measuring 2 acres and 16 cents in S. No. 134/3 and that they have not disclosed their right in respect of the said property in the affidavit filed in support of the application. He has also admitted that even though his father mortgaged the property in 1977 or 1978 to Lakshmi Vilas Bank, Attur, for Rs. 44,000, there is no document to evidence the same. He has admitted that he approached Lakshmi Vilas Bank to give Bank guarantee on the deposit of documents of title in respect of the said property. He has admitted that the said lands are in their possession and that he is willing to sell the properties to the respondents who are offering to pay Rs. 1 lakh. At page 12 of his evidence he has stated that the statement made in the counter-affidavit that the total face value of the shares held by P. W. 1 and his brother Chandrasekharan is Rs. 80,000 in United Solvents Extractions Ltd. is correct. He has also stated that what he has stated in para 3 of the affidavit that apart from an investment of Rs. 38,000 with the United Solvents Extractions Ltd., and a monthly income of Rs. 200 he has no other movable or immovable properties is not correct. Learned counsel for the respondents Mr. B.T. Seshadri submitted that on the lone ground of non-disclosure of the assets in the affidavit filed in support of the application, the petition is liable to be dismissed. In this connection, the learned counsel drew my attention to the decision reported in Chellammal v. Muthulakshmi Ammal, AIR 1945 Mad 296. A Division Bench of this Court consisting of Leach C.J. and Clark, J. held : - "Under O.33 R.2 read with O.33 R.5(a) and O.44 R.1 it is the bounden duty of the petitioner applying for leave to sue or appeal as a pauper to make a full and accurate verified statement of his or her properties. The utmost good faith is required of the petitioner in the matter of the disclosure of his or her assets and any intentional departure from good faith, whatever the motive may be, must result in the dismissal of the petition. Accordingly where the petitioner obtained leave to appeal in forma pauperis by practising fraud on the court by not disclosing all his assets the leave must be cancelled." In Rajkumar Bhagwatsaran v. V.P.V. Rajan, (1971) 1 Mad LJ 510, a Division Bench consisting of K. Veeraswami C.J. and V.V. Raghavan J. relied on the earlier decision cited above and held as follows : - "Utmost good faith is expected on the part of the applicants who seek leave to sue in forma pauperis. Motive for suppression is irrelevant. It is no use contending that having regard to the large amount of court fee that has to be paid, suppression of Rs. 300 per mensem (on facts) would not make any difference. The point is one of good faith and not whether, in view of the large amount of court fee, the appellant who is shown to be in good faith making the application without full details would be unable to pay court fee". In K.V. Abubucker v. Madhava Panicker, 1982 T. L. N. J. 431 Natarajan J. (as he then was) held that the non-disclosure of the income of Rs. 500 by way of salary by the petitioner is sufficient to reject the application. The learned judge considered the earlier decisions and approved the ratio laid down in those decisions. Applying the ratio laid down in the said decision to the facts of this case, I am of the view that in view of the specific admission of P.W. 1 himself about the failure to mention the 2 acres and 16 cents of land, which is worth more than a lakh of rupees and also the shares of the face value of Rs. 80,000 possessed by them in the affidavit filed in support of the petition, the petition is liable to be dismissed.