MALA DEVI Vs. PRIYAMONI DEVI

JUDGEMENT

(1.) THIS is a petition under Section 115, Civil P. C. seeking to have an order of the learned Subordinate Judge, Cuttack in Misc. Case No. 133 of 1951, set aside. The petitioner filed a suit against her sister for setting aside a partition deed brought about on 19 -7 -51 dividing the properties lett by their father who had died sometime prior to that dale leaving his widow, the mother of the present parties, as his then surviving heir. The plaintiff's mother died in June 1950 and the partition deed which is impugned in the suit was executed on 19 -7 -51 at the house of the plaintiff's father where defendant 1 is said to be living with her husband. According to the deed of partition the plaintiff has been given one acre and odd of land in village Mantripada and 14 acres and odd of land in Mayurbhanj district, whereas opposite party 1 gets 61 acres and odd of lands at Mantripada. The plaintiff filed a petition to allow her sue In forma pauperis on the ground that she was not 'possessed of sufficient means' other than the property in dispute, within the meaning of Order 33 Rule 1, Civil P. C. The learned subordinate Judge held that the plaintiff's share in the suit property would be worth at least Rs. 3500/ -and as the court -fee payable was Rs. 1967/ -she should have made an attempt to raise funds for paying court -fee by alienating the lands. He further held that the plaintiff's husband, who was examined as P. W. 1 said that he was not going to alienate the lands allotted to the plaintiff under the deed of partition, and it was clear, therefore, that the petitioner could have raised money from the lands in which she claimed her share and that she was unwilling to raise money by alienating those properties. On this view, the learned Subordinate Judge declined to treat her PS a pauper, within the meaning of Order 33 Rule 1, Civil P. C.

(2.) THE Explanation to Order 33, Rule 1, Civil P. C., reads as follows:

(3.) IN the present case the learned ordinate Judge appears to have ignored these considerations and has come to the conclusion arrived at by him, for the reason that the property which is the subject -matter of the suit. Is itself valuable and is of higher value than the amount of court -fee required to be paid, and that the plaintiff could and should have found a creditor to lend her this amount. In taking this view he was in error, and we are constrained to interfere in revision as we are satisfied that he has failed to exercise the jurisdiction that was vested in him. In the circumstances of the case, the plaintiff should have been held incapable of raising money on the security of the subject -matter of dispute and admittedly she is not possessed of any other means sufficient to enable her to pay the court -fee on her plaint.