AMRITRAO ATMARAM PATIL Vs. NARSINGRAO AJABRAO MARATHE

JUDGEMENT

(1.) THE relevant facts admitted and proved in this application for leave to sue as a pauper which was granted and is now under revision are as follows: The non-applicant Narsinghrao claims a half share in a joint family estate on the ground that he was adopted by Ambikabai widow of one of the deceased coparceners Ajabrao. The applicant 1 Amritrao was Ajabrao's brother and applicant 2 is Amritrao's son. They deny the non-applicant's adoption and title and say that three fields and a kotha out of the estate were given to Ambikabai for her maintenance in 1929 but that since 1939 plaintiff has taken possession of this property. The finding of the lower Court, however, on this application is that Ambikabai continues to be in possession of these fields and that her adopted son is not in possession of property sufficient to enable him to pay the court-fee of Rs. 1355. One of the allegations of the present applicants was that Narsinghrao had entered into an agreement with one Madhorao Deshmukh who was to finance this litigation on promise of getting one half share in the property. The lower Court has found this agreement not proved. That is a finding of fact which even if incorrect is binding on me in revision.

(2.) ANOTHER plea now urged is that there was an understanding between Narsinghrao and his adoptive mother which falls under Order 33, Rule 5(e), Civil P.C. That is a plea which I do not find to have been taken when the application was being investigated. It is too late to press it for the first time now. In any case there is nothing to show that Sub-rule (e) could possibly apply to the facts. Narsinghrao did not enter into any agreement with Ambikabai by which Ambikabai obtained an interest in the estate. It was the other way about. She gave him an interest by adopting him. Her own interest had accrued long ago when she married Ajabrao and when she was given these fields for maintenance in 1929. The last point for consideration is whether Narsinghrao's alleged share in the estate is a matter to be taken into consideration in deciding under Order 83, Rule 1, whether he is possessed of sufficient means. Learned Counsel for the applicant referred me to MITHAI V. JAGAN . That case contains a lucid comment on Order 33, Rule 1. The learned Judges point out that eases which come under the first part of the explanation of Rule 1, (such as the present) are not tramelted by the restriction of the second part excluding the subject-matter of the suit from consideration. They go on to say:

(3.) I am referred to a previous case of mine Manohar v. Sundra Bai Civil Revn. No. 719 of 1938, which was sent back to see what funds could be raised by sale of a house. That house was, however, admittedly in possession of the applicant although his title to it was disputed. The fact that he was in possession is an essential point of difference. In Dwarkabai v. Sakharam , ornaments which formed the subject-matter of the suit were taken into consideration because the applicant was in possession of them. The learned Additional Judicial Commissioner distinguished cases of non-possession in these words: It cannot be assumed that the framers of this rule (Order 33, Rule 1, Civil P.C.) thought that every one who is entitled to property was possessed of means to the value of that property.