RAJWANTI KUER Vs. RAMBHAWAN RAI

JUDGEMENT

(1.) The question involved in this case is whether the learned Subordinate Judge of Sasaram acted in proper exercise of jurisdiction in holding that the application preferred by the petitioner did not disclose cause of action within the meaning of Order 33, Rule 5(d), Civil P. C. and in consequence refusing the petitioner from prosecuting the suit in 'forma pauperis.'

(2.) The petitioner Mt. Rajwanti Kuer brought the suit on the allegation that she had entered into an arrangement with Ramphal Rai and other agnates by virtue of which the latter agreed to be in possession of the properties of Mt. Rajwanti's husband and promised to pay maintenance to Mt. Rajwanti out of the usufruct of the properties. As the opposite party made default in paying maintenance the petitioner instituted Suit No. 131 of 1900 in the Court of the Munsif of Sasaram for recovery of possession of the lands in question. The suit was ultimately compromised and one of the terms of the compromise was that if the opposite party made further default in paying maintenance the petitioner would be entitled to get back possession of the lands. A second Suit was instituted by the petitioner in 1908, viz., Suit No. 652 of 1908, in the Court of the Munsif of Sasaram for arrear of maintenance against the opposite party. The suit was decreed on compromise and the compromise petition of the previous suit, viz., No. 131 of 1900, was made a part of the decree in the latter suit. In the year 1941 the petitioner executed a deed of surrender in respect of the whole estate in favour of her daughter's sons with the assent of her daughter. Relying upon this document the daughter's sons, viz., Ganesh Rai and others, instituted Title Suit No. 40 of 1944 in the Court of the Munsif of Sasaram against the opposite party for a declaration that they were the next reversioners to the widow Mt. Rajwanti Kuer and that they were entitled to get back possession of the properties from the opposite party. The suit was decreed in the trial Court and the decision was upheld by the Subordinate Judge of Arrah in appeal. But on further appeal to the High Court the judgment and the decree of the lower Court was set aside on the ground that the deed of surrender was invalid and ineffective and there was no acceleration of succession to the daughter's sons of Mt. Rajwanti Kuer in their status as reversioners. The petitioner then brought the present suit alleging that the opposite party had made default in giving her maintenance and she ought to be placed in. possession of the properties and future mesne, profits also should be granted against the opposite party. The petitioner also filed an application for permission to sue in 'forma pauperis'. It was not contended on behalf of the opposite party that the petitioner had no means to pay court-fee or that she was a pauper or that she had entered into a champertous agreement but it was argued on behalf of the opposite party that there was no cause of action for the suit for the reason that the widow had executed a deed of surrender of the whole estate in favour of the daughter's sons. The argument was accepted by the learned Subordinate Judge who held that the application for permission to sue in 'forma pauperis' was not maintainable in view of Order 33, Rule 5(d).

(3.) In support of this rule Mr. Awadh Behari Saran submitted that the order of the learned Subordinate Judge is wholly erroneous and that in view of the decision of the High Court that the deed of surrender executed by the widow in favour of the daughter's sons was wholly ineffective to transfer the estate, the petitioner could rely upon the compromise decree passed in the suits of 1900 and 1908 and maintain a suit for possession against the opposite party who had made default in paying maintenance. In my opinion the argument of the learned counsel is manifestly right. Had it been held by the High Court that the deed of surrender executed by the widow in favour of the daughter's sons was a valid and effective document, there might be some force in the reasoning of the learned Subordinate Judge that the widow had no cause of action and the right to sue for possession would have devolved upon the daughter's sons in whose favour the deed of surrender was executed. But the position is that the trial Court has in a suit 'inter partes' affirmed that the deed of surrender was not effective to transfer title or possession of the estate to the daughter's sons. In view of this finding it is obvious that the petitioner could fall back upon the oral contract by which she had transferred the estate to the opposite party in lieu of being paid maintenance from the usufruct of the land. The oral contract was embodied later on in the compromise decree and granted in the title suit brought in the year 1900 and affirmed in the second title suit brought in the year 1908 by the petitioner for maintenance against the opposite party. It is clear that in holding that the petitioner had no cause of action the learned Subordinate Judge has misdirected himself in law.