PAPPAMMAL Vs. SETHAMMAL

JUDGEMENT

(1.) The petitioners filed this suit for a declaration that the property left by first petitioner's deceased husband belonged to her and for an injunction restraining the first defendant, a co-widow, from interfering with her possession. The first defendant resisted the suit on the ground that the property was the self-acquired property of her husband and that he had left a will by which he bequeathed all the property with the exception of items 9 and 10 to the defendants. The first plaintiff replied that her husband was not then in a sound disposing state of mind and that the will was therefore not binding on her. The plaintiff paid such Court-fee as she thought sufficient; but during the course of the trial, the Court-Fee Examiner discovered that a higher Court-fee was payable. The plaintiff then declared that she was unable to pay that higher Court-Fee and prayed for permission to continue the suit in forma pauperis. That petition was dismissed by the District Munsif of Tirumangalam on the ground that whether on the plaintiff's case or on the defendants case, the plaintiff had an interest in items 9 and 10 upon which she could raise the amount necessary for paying the additional Court-fee.

(2.) The first point that arises is whether items 9 and 10 can be said to be the subject-matter of the suit; and if so whether they are excluded by Order 33, Rule 1, Civil Procedure Code, for the. purpose of evaluating the property of the plaintiff. It seems to me that the comma after the word suit separates the first part of the explanation to Rule 1 from the second part; from which it would follow that the expression other than his necessary wearing apparel and the subject-matter of the suit qualifies only the second part of the explanation and not the first. If this expression were intended to qualify the whole of the explanation, then the comma after suit would be wrong. I am. fortified in this opinion by the commentary in Mulla's Civil Procedure Code and by the judgment of Jackson, J. in Mahalakshmi Ammal in re (1925) 50 M.L.J. 114, in which he follows Krishna Bai V/s. Manohar (1906) 30 Bom. 593, and disagrees with Bai Balagauri V/s. Motilal Ghellabai (1922) 47 Bom. 523, in which, he says, the earlier Bombay decision had been overlooked. It is true that Madhavan Nair, J. in Ramaswami Naidu V/s. Vaiyapuri Nadan (1934) 67 M.L.J. 581, seems to express an opposite opinion; but he did not consider the point which we are now discussing. All that he said was that In the explanation to Order 33, Rule 1, Civil Procedure Code the definition of pauper is given from which it appears that in considering whether a person is a pauper, the subject-matter of the suit should be excluded.

(3.) So he did not consider the question whether the words other than his necessary wearing apparel and the subject-matter of the suit qualify only a part of the explanation to Rule 1 of Order 33 or the whole.