KESHEO HANMANTOO KALAR Vs. MT. MAINABAI NANAJI KALAR

JUDGEMENT

(1.) THIS is an appeal by the next friend of the minor (plaintiff) against the order of the lower Court directing that the Government will be entitled to recover court-fee on the plaint from him personally and also out of the property of the minor plaintiff and that he alone should pay the defendant's costs out of the joint property. One Nanaji died survived by his two widows. He left considerable landed property. On his death, the bulk of the property was mutated in the name of his widows and some malik makbuza fields situated in mouza Juna Surla were recorded in the name of Namdeo, the appellant's brother. On the death of Laxmibai, one of Nanaji's widows, the other widow, Mt. Mainabai, it was alleged, came to know about the record of Namdeo's name against the malik makbuza fields of Juna Surla. She filed a suit (Civil Suit No. 3A of 1938) against Namdeo (minor) and his father Hanmantu. It was after that suit that the suit out of which this appeal arises came to be filed by the appellant acting as next friend of the plaintiff Namdeo, his brother, for a declaration that Namdeo was the adopted son of the deceased Nanaji. Permission was obtained for prosecuting the suit in forma pauperis. The lower Court on an elaborate review of the documentary and oral evidence came to the conclusion that the story of adoption, as set up on behalf of the plaintiff was false, and dismissed the suit. It however held that the suit was not vexatious and declined to give compensatory costs under Section 35A, Civil P.C.

(2.) AS regards the costs of the suit, it made the appellant, the next friend of the minor, personally liable to pay the court-fees and the defendant's costs. This appeal is directed against the order as to costs. On the authority of Sibt Ahmad v. Amina Khatun it is contended that the order directing the appellant to pay the court fees was contrary to law. It is pointed out that Section 11 of Order 83, Civil P.C., authorises the Court to order the plaintiff alone to pay the court fees which would have been paid, by him (plaintiff) if he had not been permitted to sue as a pauper. The contention looks specious but not sound. Order 53, Rule 11 must be read in conjunction with Section 35, Civil P.C., which gives wide discretion to the Court, and full power to determine by whom or out of what property and to what extent such costs are to be paid. Order 33 itself contemplates the imposition of personal liability for costs of the suit on the next friend. It says that a minor on attaining majority may apply that a suit instituted in his name by his next friend be dismissed on the ground that it was unreasonable or improper and that the Court is empowered to order the next friend to pay the costs of all parties in respect of anything done in the suit or to make such other order as it thinks fit. If at the conclusion of the suit the Court is satisfied that the suit is unreasonable or improper there is no reason why the principle of that rule cannot be extended to safeguard the interests of the 'innocent minor.

(3.) I have no doubt that on the merits the lower Court was perfectly justified in making the order for costs. I have perused the record and I have no doubt that the suit was a false one which was sought to be bolstered up by the evidence of witnesses whose mendicity was transparent. The suit for a declaration that the plaintiff was the adopted son of the deceased Nanaji was filed obviously as a counterblast to Mt. Mainabai's suit. Hanmantu, the father of the plaintiff and the appellant, was acting as an agent for the widows and he betrayed the confidence which the widows reposed in him both as an agent and as a near relation when he got the malik makbuza fields mutated in the name of Namdeo, his son. Neither in the mutation proceedings which followed after Nanaji's death, nor in the succession certificate proceedings, nor in the school certificate, nor even in the revenue papers where Namdeo's name was recorded, was Namdeo ever represented as the adopted son of Nanaji. The story of adoption first made its appearance in Malgavanda's affidavit sworn in 1937 after the dispute had already arisen and that story was sought to be developed in the suit with the aid of some unscrupulous witnesses. I am unable to agree with the lower Court that the plaintiff's suit was not vexatious; but that is another matter. So far as the order as to costs is concerned, I have no doubt that the lower Court was thoroughly justified in the view that it took. As to the propriety of the suit, it is impossible to believe the appellant Kesheo (who replaced his father Hanmantu as guardian ad litem in the suit filed by Mt. Mainabai and became the next friend of Namdeo) should not have been aware of the real nature of the claim that he sought to put forward on behalf of his minor brother. The weight of the-documentary evidence and the conduct of Hanmantu militated against the truth of the adoption, and it was manifestly unreasonable and improper to have launched the false-suit for litigation to the annoyance and harassment of Mt. Mainabai. I affirm the lower Court's order both as regards the court-fees and other costs and dismiss the appeal with costs.