BALWANT KAUR Vs. JAGDISH MITTER

JUDGEMENT

(1.) THIS is an unfortunate controversy between a mother and her real sons. The mother had originally instituted a suit for partition and for separate possession of one-fourth of the property in question but on 21-4-1962, Shri Kartar Singh, Senior subordinate Judge, Amritsar, on a preliminary objection by the defendants, who are the petitioner's sons came to the conclusion that the plaintiff was not in actual possession of the property 314/cl on Cooper Road or any portion thereof. According to the finding of the learned Senior Subordinate Judge, she had undoubtedly been living in this house with her husband but later her relations with her husband and sons became strained and that she was actually belaboured and turned out of the house. For this purpose, reference was made to an earlier judgment of the Court, Exhibit P. 16 dated 26-6-1951 in which it was observed that the petitioner had been belaboured and turned out of the house whereafter she started living with one Smt. Jamna Devi as a tenant. The argument that on her husband's death she should be deemed to have become constructively in possession of the property left by her husband so far as her right of inheritance is concerned was also repelled. The Court with these observations granted to the petitioner-plaintiff adjournment to apply for amendment of the plaint. It was in these circumstances that she applied for permission to sue as a pauper because she was not possessed of sufficient means to be able to pay court-fee. On this prayer being resisted by her sons, the learned Senior Subordinate Judge, Shri surjit Singh Raikhy, held that the plaintiff-applicant had adduced no evidence to show that the subject-matter of the suit in which she was claiming interest was not sufficient from which she could meet the expenses of the court-fee. Observing that she was admittedly in possession of the same and, therefore, it had to be considered in this enquiry and she having adduced no evidence as to the value of the same, the learned Judge on this ground as also on some other technical ground disallowed this petition. The other grounds, it appears, are that the petitioner had not disclosed certain money lying in the bank in her account which she had withdrawn a few months before her statement recorded on 25-10-1962. She had also, according to the Court not disclosed that she had a locker in a bank. It is against this order that the present revision has been preferred.

(2.) ON 20-11-1964, after hearing the arguments for sometime, I felt that the dispute being between an old mother and her children, this was a fit case in which, if possible, there should be a mutual settlement and reconciliation between the mother and her children. The counsel at the bar also assured me that they would try their best to sound their clients and so far as possible to impress upon them the desirability of a mutual settlement. As a matter of fact, even before that date, there was a suggestion for a settlement and the counsel had tried to contact their clients but for certain reasons, this was not possible. On 20-11-1964, the counsel promised to see that the differences between the mother and her children were ironed out with good will. I thereupon adjourned the case for about a month for an attempt at settlement. On 26-2-1965, Shri Manchanda, learned counsel for the respondents suggested that his clients may be willing to maintain their real mother who is the applicant in this Court and on my enquiry as to how much they were willing to pay to her by way of maintenance, the learned counsel promised to enquire from his clients. At the request of the counsel, the case was adjourned to 12-3-1965. On that date, the petitioner's counsel was ill but the learned counsel for the respondents informed me that his clients had written to him that they would come here the following month. In any case, he desired that the case be adjourned to 26-3-1965. On that day, the respondents' counsel submitted that his clients could not find time to come, though they were willing to have an amicable settlement with their mother and at least one of them, according to the learned counsel, was anxious to support her. He, however, wanted his mother to make a definite commitment as to what was the amount that she wanted. I somehow got the impression that the respondents were not serious in coming to a real settlement, with the result that I am going to dispose of the revision on the merits.

(3.) ACCORDING to the learned counsel for the petitioner, there was a compromise between the petitioner Smt. Balwant Kaur and Jagdish Mitter agreeing to pay Rs. 50/- per mensem to the petitioner and to give her one room in the house at amritsar to live in but nothing was paid to her. Her suit for maintenance for Rs. 500/- was thereafter decreed but again nothing has been realised. On 1-3-1960, as a last resort, the present litigation was started by her. As already mentioned, on 21-4-1962, Shri Kartar Singh, Senior Subordinate Judge, directed the plaint to be amended and ad valorem court-fee to be paid. The following day the plaint was amended and application for permission to sue as a pauper filed. On 17-5-1963, she was held not to be a pauper and since then the present application for revision is pending in this Court. Again, the defendants raised the preliminary objections on which on 5-5-1962 (though the original order does not bear any date) the Court declined to allow the amendment sought but considered it proper to allow the plaintiff one more opportunity to amend the plaint in the light of that order and the previous order dated 21-4-1962. On 14-5-1962 the learned Senior Subordinate Judge observed that an application had been made by the plaintiff for being permitted to continue the suit in forma pauperis of which the Court gave notice to the Collector. He declined to proceed with the suit till that application was decided. Then came the impugned decision. It has been very strongly argued that the Court below has completely ignored that at an earlier stage of the present proceedings, the learned Senior Subordinate Judge had on 21-4-1962 found that the plaintiff-petitioner was not in possession of any part of the property of which partition and possession were sought. The present conclusion that she was in possession of a part of that property is, according to the learned counsel, wholly erroneous and is indeed hit by the principle of res judicata. But this apart, he has also emphasised that no part of the property which is the subject-matter of controversy can be taken into account for considering the means of the plaintiff to pay court-fee. In this connection, he has drawn my attention to explanation to Rule 1 of Order 33, Code of Civil Procedure, according to which a person is a pauper when he is not possessed of sufficient means to enable him to pay the fee prescribed by law for the plaint in such suit or where no such fee is prescribed, when he is not entitled to property worth Rs. 100/- other than his necessary wearing apparel and the subject-matter of the suit. Whether or not the subject matter of the suit has any reference to the first part of the explanation, namely, where a fee has been prescribed by law for the plaint, it seems to be clear that in the case in hand she was not possessed of any part of the property in suit and was for that purpose non-suited at the instance of the defendants on 21-4-1962 by the Senior Subordinate Judge, in so far as her suit for partition and separate possession is concerned. Failure on the part of the learned senior Subordinate Judge while passing the impugned order dated 17-5-1963 is, in my opinion, a material irregularity and illegality in the exercise of jurisdiction. Sufficient means really connote means which can enable the plaintiff to have sufficient liquid cash available for paying the court-fee, or property easily convertible into cash. When the petitioner-plaintiff is not even in possession of any part of the property to which she may be claiming title, I find it exceedingly difficult to hold that such property could lawfully and justly be taken into account for throwing out the petitioner's application for permission to sue as a pauper on the ground of her being possessed of sufficient means. Capacity to raise money is the real test and not mere possession of some property as the court below appears, to think.