Login
  • Bookmark
  • PDF
  • Share
  • CaseIQ

Katam Virupakshiah And Others v. Matam Sivalingaiah And Others

Andhra Pradesh High Court
Sep 1, 1959
Judgment
Subsequent
References
CaseIQ
Case Information
CITATION CODES
citation codes
CASE NO.

Civil Revn. Petn. 878 of 1957, against order of Dist. Munsiff, Adoni

Attorney(S)

For the Appellant: M.B. Rama Rao, N.M. Sastry, Advocates.

JUDGES

Krishna Rao, J.

ACTS

clause (b) of Order 33, Rule 5.7. He construes the clause (nn) of Order 43, Rule 1

SECTION 11 HINDU MINORITY AND GUARDIANSHIP ACT

clause (a) of Explanation (i) to Order 33 Rule 1 (Madras Amendment).

28 of B.B Mitra's Guardians and Wards Act, 8th Edition 1940).19.

SECTION 12 HINDU MINORITY AND GUARDIANSHIP ACT 1956

clause (d) or clause (d-1) of rule 5 aforesaid.6.

Order 33, Rule 5. But Order 43, Rule 1

Order 33, Rule 7(3) of the CPC

Rule 5 or Rule 7 of Order 33

clause (nn) of Order 43, Rule 1

Order 43, Rule 1 of the CPC,

Order 33, Rule 5,

See more information ... Less ...
Important Paras
Please sign up to view Important Paras.
Smart Summary (Beta)

Factual and Procedural Background

This proceeding is a revision petition under Section 115 of the Civil Procedure Code (CPC) challenging an order of the District Munsiff at Adoni refusing the petitioners permission to sue in forma pauperis under Order 33, Rule 7(3) of the CPC. The District Munsiff concluded that the petitioners could raise the requisite court fee of Rs. 225 by giving their property as security, that the petitioners' allegations did not disclose a cause of action, and that the petition was not bona fide (although the court noted that bona fides is not one of the grounds listed in Order 33, Rule 5 for rejecting a pauper petition).

The background facts (as set out in the opinion) are: three petitioners are minor sons and respondents 2 and 3 are adult sons of the 1st respondent; they are members of a joint family managed by the 1st respondent. Around 1951 the 2nd respondent executed a promissory note in favour of the 4th respondent. The 4th respondent sued (O.S. No. 255 of 1954) impleading family members, and on 4-3-1955 the suit was decreed ex parte against all defendants after the defendants' pleader reported no instructions. Execution proceedings (E.P. No. 339 of 1955 and later E.P. No. 201 of 1955) followed; attachments of family immovable property were effected in January 1956, some payment was made, and sale proceedings were pursued but ultimately the attachment was at one stage rejected and later raised again.

On 26-9-1956 the petitioners filed O.P. No. 28 of 1956 (through their sister's husband as next friend) seeking permission to sue in forma pauperis for partition of their half share of the family properties and a declaration that the decree in O.S. No. 255 of 1954 was not binding on their shares because their guardian acted fraudulently and improperly. The District Munsiff refused permission to sue as paupers and gave the reasons summarized above; this revision ensued.

Legal Issues Presented

  1. Whether the High Court may entertain a revision petition under Section 115 CPC in a case where an appeal lies to a lower appellate court (i.e., whether the existence of a right of appeal to the District Judge precludes revision to the High Court).
  2. Whether the petitioners were entitled to be permitted to sue in forma pauperis under Order 33 (i.e., whether they were "paupers" for the purposes of the rule, and whether they could raise the court fee by giving their share of joint family property as security).
  3. Whether the petitioners' plaint/petition contained allegations sufficient to disclose a cause of action (specifically allegations of fraud and negligence on the part of the guardian in the earlier suit) to warrant permission to sue as paupers and further litigation.
  4. Whether the District Munsiff's conclusions were reached by a reasoning process free from material procedural defect such that revision under Section 115(c) was justified (i.e., whether the manner in which the decision was reached involved a material irregularity or illegality).

Arguments of the Parties

Petitioners' Arguments (as advanced by Sri N. M. Sastry)

  • The reasons given by the District Munsiff for rejecting the pauper petition had nothing to do with the conclusions he reached; the findings were not logically connected to the stated reasons.
  • The petitioners are minors and their next friend is only a de facto guardian; under Section 11 of the Hindu Minority and Guardianship Act a de facto guardian has no power to dispose of or deal with the property of a Hindu minor, and therefore the next friend could not lawfully offer the minors' undivided share as security to raise court fees.
  • The petitioners' next friend could not practically obtain High Court appointment as guardian in time to avert execution sale and doing so would have involved costs (estimated at Rs. 100–200) disproportionate to the immediate need to raise Rs. 225 for court fee.
  • The petitioners' counsel relied on the facts that (i) the attachment had been raised shortly after the pauper petition was filed and therefore attachment could not have been an impediment to raising funds, and (ii) the petitioners' allegations of fraud and negligence were sufficient at the petition stage to show a cause of action and did not require proof then.
  • The District Munsiff ignored the difference in ability to raise money between adults and minors holding undivided shares in joint family property.
  • The petitioner did not appeal because counsel believed no appeal lay; this omission should not bar revision in the special circumstances of the case.

4th Respondent's Arguments (as advanced by Sri N. Ramamohana Rao)

  • A preliminary objection that the revision petition was not maintainable because an appeal lay from the order refusing permission to sue as paupers (relying on clause (nn) added to Order 43, Rule 1 of the CPC which mentions orders under Rule 5 or Rule 7 of Order 33).
  • The District Munsiff correctly found that the petitioners were in a position to raise the court fee (only Rs. 225) by giving their property as security; therefore the pauper application could properly be rejected (invoking the principle in Mithai Lal v. Jagan).
  • It was argued that the 4th respondent had offered to release some attached properties to enable petitioners to raise the fee (though on inspection of the lower court record this was not borne out).
  • The 4th respondent invoked the proviso to Section 12 of the Hindu Minority and Guardianship Act to argue that the High Court could appoint a guardian to enable raising funds for litigation, and that P.W.1 could have applied to the High Court for such appointment.
  • Later in the proceedings the 4th respondent sought to distinguish cases relied upon by the petitioners and to rely on authorities to the effect that negligence by a manager (not amounting to fraud) may not entitle other members of the family to set aside a decree obtained against the manager.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
196? Narasimhulu Chetty Sub-barayulu ((1956) 69 Mad LW (Andhra) 50) Authority for the proposition that Section 115 CPC can be invoked even where appeals lie to a lower appellate court; the High Court's revision jurisdiction is not confined to cases where no appeal lies to the court below. The court followed this view and held that the existence of an appeal to the District Judge did not by itself preclude revision under Section 115 in appropriate circumstances.
Chidambaram Chetti v. Nagappa Chetti, AIR 1916 Mad 1014 Illustrative of the practice that the High Court will normally not interfere in revision where an alternate remedy of appeal exists. The court cited this decision as representative of the principle but treated it as part of a line of authority that does not bar Section 115 entirely; the court contrasted these authorities with the 69 Mad LW view.
(Nekkanti) Seeramma v. (Nekkanti) Seshamma, AIR 1933 Mad 217 Another authority cited for the practice that High Court ordinarily refrains from revision where an appeal is available. Referenced as part of the line of authorities acknowledging supervisory restraint; the court noted the general practice but did not treat it as an absolute bar.
Peddiboyina Vishwanatham v. Sreenivasa Venkata Varadacharyulu, AIR 1943 Mad 377 Also cited as an example of the practice of not invoking revision when appeal is available. Used in the same context of illustrating ordinary practice; the court considered such authorities but preferred the broader view in 69 Mad LW (Andhra).
Gopalaratnam v. Lakshmikantam, AIR 1943 Mad 569 Authority stating that a civil revision petition does not lie if the petitioner can obtain remedy by appeal. The court noted this decision (which takes a stricter view) but expressly preferred to follow the reasoning in 69 Mad LW (Andhra) and not to adopt Gopalaratnam's absolute proposition.
Mithai Lal v. Jagan, AIR 1937 All 740 Principle: where an applicant to sue as a pauper is entitled to a substantial share in property and can be expected to raise court fees by charging that share, the court may properly reject the pauper petition. The District Munsiff quoted and applied this proposition to hold that the petitioners could raise the small court fee against a substantial undivided share. The High Court observed that the District Munsiff applied the principle without discussing relevant facts (in particular, the minors' inability to give security through their de facto guardian).
Sundarathammal v. Paramaswami Assari, AIR 1933 Mad 883 Statement that when property is not cash the test is whether, in the concrete circumstances, money could be raised on the security of the property, not the abstract power to raise money. The court relied on this principle to criticize the District Munsiff's assumption that entitlement to a share necessarily meant ability to raise the court fee; the court emphasized need for concrete evidence.
Thanu Pillai v. Nallathayammal, AIR 1934 Mad 562 Support for the proposition that evidence is necessary to judge whether money can be raised on property. Used to reinforce the point that the District Munsiff should have considered evidence as to whether the petitioners could, in the concrete circumstances, raise the court fee by mortgaging their share.
Ram Prasad v. Jagatamba Prasad, AIR 1925 All 547 Case cited regarding appointment of guardian and offers to purchase part of a share where a guardian is appointed. The court held this authority bore no analogy to the present facts and was not persuasive to justify the District Munsiff's finding that the petitioners could raise the court fee in the given circumstances.
Subbaratnam v. Gunavanthalal, AIR 1937 Mad 472 Authority that a decree passed against a minor could be avoided on the ground of gross negligence of a guardian ad litem. The court treated this case as binding on the High Court and observed that allegations of gross negligence/fraud by the guardian in the earlier suit could constitute a cause of action for the petitioners.
Egappa v. Ramanathan, AIR 1942 Mad 384 Similar authority to Subbaratnam on avoidability of decree against minors where guardian was grossly negligent. The court cited this as part of binding authority supporting the view that the petitioners' allegations of guardian negligence/fraud were sufficient at the pleading stage to constitute a cause of action.
Keshardeo v. Radha Kisen, AIR 1953 SC 23 Supreme Court construction that the words "illegality" and "material irregularity" in Section 115 clause (c) refer to material defects in the procedure or the manner in which a decision is reached, not merely errors of law or fact. The court applied this construction to conclude that basing findings on facts that have no bearing or connection to them constitutes a material defect of procedure warranting revision under Section 115(c).
Krishnamurthi v. Chidambaram Chettiar, AIR 1946 Mad 243 Authority cited (by the 4th respondent) concerning limits on setting aside decrees obtained against managers of joint families where negligence, not amounting to fraud, is alleged. The court observed these authorities but noted that neither pleadings nor the decree in the earlier suit had been placed before the court so it could not determine whether those decisions applied; the court did not accept them as decisive here.
Abbakka Shedthi v. Vittal Hegda, AIR 1948 Mad 129 Similar to Krishnamurthi: authorities that negligence of a manager not amounting to fraud may not entitle other family members to set aside a decree. Referenced by the 4th respondent; the High Court noted these decisions but did not decide the applicability in the absence of material showing the earlier suit's particulars and did not treat them as foreclosing the petitioners' claim at the pauper stage.

Court's Reasoning and Analysis

The court's analysis proceeded in distinct steps addressing maintainability, pauperism, valuation and the sufficiency of allegations:

  1. Maintainability of Revision:
    • The court considered the preliminary objection that the revision was not maintainable because an appeal lay to the District Judge under clause (nn) of Order 43, Rule 1 (Madras amendment) in relation to orders under Rule 5 or Rule 7 of Order 33.
    • The court interpreted clause (nn) as dealing with the right of appeal and rejected the construction that the mention of particular grounds in clause (nn) limits the right of appeal only to those grounds. It agreed that an appeal did lie to the District Judge from the impugned order.
    • Nevertheless, relying on authority (specifically the view in (1956) 69 Mad LW (Andhra) 50), the court held that Section 115 revision jurisdiction is not confined to cases where no appeal lies; High Court may entertain revision even where an appeal to a lower appellate court exists, particularly where an order is clearly without jurisdiction or results in injustice.
    • The court emphasised that the exercise of Section 115 is discretionary and ordinarily the High Court will not interfere where an alternative remedy has not been pursued. But, considering the special facts (counsel for petitioners believed no appeal lay and allowed time to expire), the court concluded that refusal of interference merely because the petitioners had not appealed was not appropriate in the circumstances.
  2. Pauperism and Valuation:
    • The District Munsiff applied clause (a) of Explanation (i) to Order 33 Rule 1 (Madras Amendment) and concluded the petitioners were not paupers because their half share of the family (B schedule) properties was valued by him at Rs. 5,500 (total B schedule Rs. 11,000) and thus they could raise Rs. 225 by giving their property as security. He cited Mithai Lal v. Jagan in support.
    • The High Court examined the valuation evidence and record: the petition valued properties (excluding a house) at Rs. 4,500, the 4th respondent valuing them in execution at Rs. 4,800 and the amin's valuation gave Rs. 5,950. The District Munsiff's valuation was apparently based on admissions by the petitioners' next friend (P.W.1) but his evidence as to value was inconsistent and the High Court observed valuation is essentially a factual matter and the District Munsiff's estimate was not assailed in revision.
    • The court rejected the District Munsiff's assumption that entitlement to a share of considerable value necessarily means the ability to raise money on its security. The court relied on Sundarathammal v. Paramaswami Assari and Thanu Pillai v. Nallathayammal to stress that the proper test is whether, in concrete circumstances, money could be raised and that evidence is required to reach that conclusion.
    • The court examined competing contentions that the attachment would have prevented raising funds and the 4th respondent's alleged offer to release attached properties; the court found neither submission supported by the record: the attachment had been raised about nine days after the pauper petition was filed and therefore could not have impeded the raising of funds; there was no offer by the 4th respondent to place properties at the petitioners' disposal.
    • Critically, the court emphasised that the petitioners were minors and their next friend was a de facto guardian who, under Section 11 of the Hindu Minority and Guardianship Act, had no power to deal with or dispose of the minors' property. Therefore the next friend could not lawfully offer the minors' undivided share as security to raise the court fee. The District Munsiff ignored this important legal distinction between minors and adults and thus his finding that the petitioners were not paupers was not related to the facts of the case.
    • The 4th respondent's reliance on the proviso to Section 12 (saving inherent High Court jurisdiction to appoint a guardian) was considered: the court observed that, while P.W.1 could theoretically have applied to the High Court for appointment as guardian for the limited purpose of raising funds, such proceedings would have been expensive and time-consuming, might have been opposed by the 4th respondent, and would not have averted an imminent execution sale. The District Munsiff did not take this into account.
  3. Cause of Action and Sufficiency of Allegations:
    • The District Munsiff found that the petition did not disclose a cause of action. However, the High Court noted that the petition had expressly averred fraud and negligence by the guardian in O.S. No. 255 of 1954 and that numerous binding decisions (Subbaratnam v. Gunavanthalal and Egappa v. Ramanathan) hold that decrees against minors can be avoided on the ground of gross negligence of a guardian ad litem.
    • The High Court criticized the District Munsiff's stated reasons for finding no cause of action: (i) the absence of mention of fraud in the paragraph giving dates of cause of action, (ii) absence of a pleading of demand and refusal for partition, and (iii) disbelief of P.W.1's evidence. The High Court held those reasons irrelevant to the limited inquiry on a pauper application since proof is not required at that stage and it is not necessary that all particulars be summarized in the dates paragraph; also a demand/refusal from respondents 1–3 would have been futile given the relief sought and the nature of the domestic relationships.
    • The court concluded that the allegations of fraud and negligence in earlier paragraphs of the petition were sufficient to show a cause of action at the stage of seeking permission to sue as paupers and that the District Munsiff's contrary finding lacked logical connection to his reasons.
  4. Procedural Defect / Material Irregularity Under Section 115:
    • The court invoked the Supreme Court's construction in Keshardeo v. Radha Kisen that "illegality" and "material irregularity" in Section 115 clause (c) relate to defects in the manner in which a decision is reached rather than to mere errors of fact or law after formalities are complied with.
    • The court found that the District Munsiff based his findings on facts and reasons having no logical connection with his conclusions — a "mere parody of reasoning" — and concluded that this was a material defect of procedure amounting to illegality or material irregularity under Section 115(c).
  5. Disposition:
    • For these reasons the court set aside the District Munsiff's order and remanded the petition for fresh disposal in the light of the observations made. Costs in the revision were directed to abide and follow the result of the petition.

Holding and Implications

Holding: Revision allowed; the order of the District Munsiff refusing permission to sue in forma pauperis is set aside and the petition is remanded for fresh disposal.

Implications:

  • The direct consequence is that the District Munsiff's order refusing to permit the minors to sue as paupers has been quashed and the pauper petition must be reconsidered afresh in light of the High Court's observations (including consideration of the petitioners' minority, the legal incapacity of a de facto guardian to offer their undivided share as security, and the sufficiency of pleaded allegations of guardian fraud/negligence to constitute a cause of action at the petition stage).
  • The High Court exercised its discretionary revision power despite the existence of an appeal to the lower appellate court because it concluded there was a material procedural defect in the subordinate court's reasoning (material irregularity under Section 115(c)).
  • The court did not purport to create or pronounce a broader binding precedent beyond its follow-up on existing authorities; the decision operated to remand and require fresh consideration in the lower court rather than to finally determine all substantive issues between the parties. The opinion indicates that the 4th respondent remains free to raise any new grounds available in the lower court.

Show all summary ...

1. This is an application in revision against the order of the Court of the District Munsiff of Adoni refusing to allow the petitioners to sue in forma pauperis. The order was made under Order 33, Rule 7(3) of the CPC and was based on the learned District Munsiff's finding that the petitioners were in a position to raise the requisite court fee of Rs. 225 by giving their property as security and that the allegations in their petition do not show a cause of action. The learned District Munsiff also found that the petition is not bona fide; but it is conceded that this is not one of the grounds specified in Order 33, Rule 5, on which the petition could be rejected.

2. In support of the revision, it is contended on behalf of the petitioners that the reasons given by the learned District Munsiff have nothing to do with the conclusions reached by him. The material facts may be briefly stated. The three petitioners are the minor sons and respondents 2 and 3 are the adult sons of the 1st respondent. They are members of a joint family of which the 1st respondent is the manager. In or about 1951, the 2nd respondent executed a promissory note in favour of the 4th respondent for money said to have been borrowed by him in connection with some contract work. The 4th respondent filed O.S No. 255 of 1954, impleading respondents 1 to 3 as defendants 1 to 3 and the minor petitioners represented by their father as defendants 4 to 6. Written statements were filed by the respondents 1 and 3 and the petitioners. But on the date of the trial their pleader reported no instructions. On 4-3-1955, the suit was decreed ex parte against all the defendants.

3. The 4th respondent filed E.P No. 339 of 1955 in execution of the decree and attachment of the immoveable properties belonging to the family of the judgment-debtors was effected on 6-1-1956. On 31-1-1956, respondents 1 and 2 paid Rs. 100 towards the decree. Time was granted till 15-5-1956 for payment of the balance and E.P No. 339 of 1955 was dismissed. As the balance was not paid, the 4th respondent filed E.P No. 201 of 1955 to recover Rs. 4985 and odd by sale of the attached properties. The advocate on behalf of the judgment-debtors asked for further time till April 1957, but this was refused and the execution stood adjourned to 29-9-1956 for filing sale papers.

4. Meanwhile on 26-9-1956 the petitioners filed O.P No. 28 of 1956 through their sister's husband as the next friend seeking permission to sue in forma pauperis for partition of their half share in the family properties. It was alleged in the petition/that the 2nd respondent's debt was not binding on the other members of the family that although the petitioners had a good defence their guardian in O.S No. 255 of 1954 acted fraudulently and illegally without safeguarding their interests and that the petitioners were entitled to a declaration that the decree in O.S No. 255 of 1954 was not valid and binding on their shares. On 5-10-1956, as the sale papers filed by the 4th respondent were rejected, E.P No. 201 of 1956 was dismissed and the attachment was raised.

5. Sri N. Ramamohana Rao, the learned counsel for the 4th respondent, raised a preliminary objection that the revision petition is not maintainable, as an appeal lay from the order in question dismissing O.P No. 28 of 1958. Under clause (nn) added in Madras to Order 43, Rule 1 of the CPC, an appeal lies from

“an order under Rule 5 or Rule 7 of Order 33 rejecting an application for permission to sue as a pauper on the ground specified in clause (d) or clause (d-1) of rule 5 aforesaid”.

6. As one of the two grounds on which the order in question is based is the ground specified in clause (d) of Order XXXIII. R. 5, viz., that the allegations in O.P 28 of 1956 do not disclose a cause of action, the contention of Sri N. Ramamohana Kao that an appeal lay from the order is well founded. Sri N.M Sastry, the learned counsel for the petitioners, relied on the fact that the order was based also on the second ground viz., that the petitioners are not paupers, which is a ground specified in clause (b) of Order 33, Rule 5.

7. He construes the clause (nn) of Order 43, Rule 1 as confining the right of appeal to cases coming under clause (d) or (d-1) alone of Order 33, Rule 5. But Order 43, Rule 1 deals with the right of appeal and not the grounds on which an appeal lies. It an order comes within the four corners of any of the clauses in the rule, an appeal lies and the appellate court could determine the case finally under Section 107 of the CPC. The mention of the grounds in clause (nn) of Order 43, Rule 1 cannot be properly construed as limiting the right of appeal to those grounds. I agree with Sri N. Ramamohana Rao that an appeal lay to the District Judge, Kurnool from the order in question. The further point for consideration is whether, on this ground, the revision petition under Section 115 of the CPC cannot be entertained.

8. Sri N. Ramamohana Rao placed reliance on the clause “and which no appeal lies thereto” occurring in Section 115 of the CPC. But this clause has been construed in numerous decisions as referring to cases in which, no appeal lies to the High Court. In Narasimhulu Chetty Sub-barayulu, (1956) 69 Mad LW (Andhra) 50 at p. 52. Chandra Reddy, J. (as he then was) said:

“It looks to me that the powers of this court under Section 115 of the CPC could be invoked even in cases where appeals lie to the lower appellate courts. The jurisdiction of this court is not confined to cases where no appeal lies to the court below and the mistakes or errors of the subordinate courts have to be rectified only by this court. There is ample authority for this view of mine. At 40 of Mulla's Code of Civil Procedure (12th edition),

“The fact that an appeal lies to a lower appellate court does not take away the power of revision. But the High Court is not competent to revise a decision of an appellate court if an appeal lies from that decision to the High Court”.

xxxxxx

9. It is true that normally this court will not interfere with an order of a subordinate court when an appeal lies to the lower appellate court, but when it is brought to the notice of this court that the order is clearly without jurisdiction and one which ought not to be allowed to stand and results in injustice being done to the parties this court has not only power to revise that order but its binding duty is to do so”.

10. No doubt the grant of the remedy under S. 115 is in the discretion of the High Court and as a rule of practice the power under this section will not be exercised in favour of interference, where the petitioner has another remedy open to him which he has not availed of. This seems to have been the ratio decidendi in Chidambaram Chetti v. Nagappa Chetti, AIR 1916 Mad 1014: in (Nekkanti) Seeramma…Plaintiff v. (Nekkanti) Seshamma…Defendant Opposite Party., AIR 1933 Mad 217 and in Peddiboyina Vishwanatham v. Sreenivasa Venkata Varadacharyuiu, AIR 1943 Mad 377(1). No doubt the decision in Gopalaratnam v. Lakshmikantam, AIR 1943 Mad 569 at p. 570 goes further, because Happell, J., said:

“A civil revision petition does not, lie since the petitioner can obtain his remedy by way of appeal”.

But I prefer to follow 69 Mad LW (Andhra) 50.

11. The question whether, in spite of an applicant's omission to pursue the remedy of appeal, the High Court ought to exercise its discretionary power of interference in revision, obviously depends on the special circumstances of each case. It has been held by courts that it would be proper to interfere in revision where the existence of the alternative remedy is doubtful, or where the alternative remedy is inconvenient or is not efficacious or is barred, or where non-interference will lead to multiplicity of proceedings and unnecessary expense and delay, or results in grave injustice. In the present case, Sri N.M Sastry says that he felt that an appeal did not lie and therefore allowed the appeal time to expire. In the circumstances, I do not consider that interference should be refused on the ground that the petitioner ought to have preferred an appeal to the District Judge, Kurnool.

12. On the question of pauperism, the learned District Munsiff rightly held that the case put forward by the petitioners fell under clause (a) of Explanation (i) to Order 33 Rule 1 (Madras Amendment). He proceeded on the footing that the B schedule family properties are worth Rs. 11,000 and that the petitioners' half share is worth Rs. 5,500. He quoted from Mithai Lal v. Jagan, AIR 1937 All 740 the proposition:

“Where a person who applied to sue as pauper for partition was entitled to a large share in the suit property as a member of the joint Hindu family and the court considering that he would be able to pay the court fee by raising money on the security of that share, rejected the application, it was held that the court was not in the error and even if in the error, the High Court would not interfere in revision as the error would not amount to material irregularity in the exercise of jurisdiction”.

Purporting to apply this principle he straightaway said without discussing the facts.

“I am convinced that the petitioners in this case are in a position to raise the necessary fees by giving their property as security. After all the amount due towards court fee is only Rs. 225/-”.

13. With regard to the valuation of the B schedule properties, it was not the case of the petitioners or of the 4th respondent that they were worth Rs. 11,000. Excluding the house valued at Rs. 500, the valuation in the petition of the properties was Rs. 4,500. The 4th respondent valued them in his execution petition at Rs. 4,800 and the amin's valuation was given by him as Rs. 5,950.

14. The learned District Munsiff's valuation is apparently based on the admissions of the petitioners next friend as P.W 1 although he made a sweeping observation at an earlier stage in the judgment.; I do not believe the evidence of P.W 1'. P.W 1 said in the witness-box that the house was worth Rs. 700 or Rs. 800 and the remaining properties were worth Rs. 200 per acre. It may be doubted whether sale forced by an emergency will fetch the full worth of the properties. Nevertheless, the question of the value of properties is one of fact and as the learned District Munsiff's estimate is supported by P.W 1's admission, it is not sought to be assailed in revision.

15. However, the learned District Munsitt, assumed that a person who is entitled to a share in joint family property of considerable value would always be able to raise comparatively smaller amounts on its security. But as observed by Walsh, J., in Sundara-thammal v. Paramaswami Assari, AIR 1933 Mad 883 when the property does not consist of cash, the test is not whether a person has a power in the abstract of raising money, but whether, in the concrete circumstances of the case, he could succeed in raising anything substantial by exercising that power. In Thanu Pillai v. Nallathayammal, AIR 1934 Mad 562 (1) Ramesam, J., agreed with the above observation and said that evidence would be necessary to enable one to judge whether money could be raised on the properties, Sri N.M Sastry laid considerable stress on the fact that all the properties except the house were attached by the 4th respondent. As against this Sri N. Ramamohana Rao urged that the 4th respondent had actually offered to release some of the attached properties to enable the petitioners to raise the amount of court fee.

16. On a perusal of the original record of the lower court, I find that neither of these submissions is correct. The attachment was raised on 5-10-1956, about 9 days after the petitioners filed the pauper application and thereafter the attachment could not have been any impediment to the petitioners. The 4th respondent filed his counter on 23-11-1956 and suggested therein merely that the petitioners might obtain leave of the court to sell one of the family lands for paying the court fee. As the attachment had been already raised about 1½ months earlier, there was no question of his offering to place any of the properties at the disposal of the petitioners for paying the court fee.

17. The more substantial point raised by Sri N.M Sastry is that the petitioners' next friend was merely a de facto guardian and that under Section 11 of the Hindu Minority and Guardianship Act-32 of 11956, a de facto guardian has no power to dispose of or deal with the property of a Hindu minor. This point was overruled altogether by the learned District Munsiff. AIR 1937 All 740 was apparently a case where the applicant was a major and there was no difficulty in his giving his share in the joint family property as security. But the petitioners here are minors and their next friend is not competent in law to offer their undivided share of the joint family property as security. Thus the finding of the learned District Munsiff that the petitioners are not paupers has no relation to the facts of the case.

18. Sri N. Ramamohana Rao sought to support the lower court's finding by invoking the proviso to Section 12 of the Hindu Minority and Guardianship Act, 1956. He pointed out that although the effect of S. 12 is to retain the prohibition against the appointment of any guardian for the petitioner's undivided interest in their joint family property, the proviso saves the inherent jurisdiction of the High Court to appoint such a guardian. He urged that P.W 1 ought to have applied to the High Court and got himself appointed as the guardian of the properties of the minors. Sri N.M Sastry pointed out that in all the reported cases where such guardians were appointed, the guardian himself was also the manager of the family and there was no risk of introducing into the family the disturbing element of a stranger. (Vide page 28 of B.B Mitra's Guardians and Wards Act, 8th Edition 1940).

19. At best, P.W 1 could have got himself appointed as guardian by the High Court for the limited purpose of raising funds for this litigation. The 4th respondent would have naturally opposed those proceedings and P.W 1 would have had to incur costs to the tune of about Rs. 100 or Rs. 200 for obtaining the advantage of raising the court fee amount of Rs. 255. Further, it was only after the executing court passed the order on 11-9-1956 refusing further time for payment that there was a real danger to the minor petitioners' share of the properties. There would have been no time for P.W 1 to avert the execution sale, if he had embarked on the expensive guardian proceedings in the High Court.

20. There was not even a suggestion in P.W 1's cross-examination that he could have got himself appointed as guardian of the petitioners and raised money to pay the court fee on the security of their, undivided share. Merely because it would have been possible for P.W 1 to take such a course by suitable proceedings in the High Court, it cannot be said that it was a practicable or a reasonable course to take. In any event, the possibility and expediency of P.W 1 getting himself appointed as guardian by the High Court was not present in the mind of the learned District Munsiff at all. As already mentioned, he completely ignored the difference in the position as between a minor and an adult in raising money on the security of his undivided share of joint family property.

21. In this connection, Sri N. Ramamohana Rao cited Ram Prasad v. Jagatamba Prasad, AIR 1925 All 547. That was a case where the defendants through their vakil had actually offered to purchase a part of the plaintiffs share in case a guardian was appointed. It bears no analogy to the present case, as the proceedings for appointment of a guardian before launching the suit would have failed to avert the execution sale at the instance of the 4th respondent.

22. Turning to the question, whether the allegations show a cause of action, the learned District Munsiff himself has stated that the ground of fraud and negligence of their guardian in O.S No. 255 of 1954 was averred in the petition. It has been held, in numerous decisions binding on this court that a decree passed against a minor could be avoided on the ground of gross negligence of a guardian ad litem. See Subbaratnam v. Gunavanthalal, AIR 1937 Mad 472 and Egappa v. Ramana-than, AIR 1942 Mad 384. The petitioners are not likely to have known all the circumstances of the fraud. The facts relating to the negligence have been set out in paragraphs 5 and 6 of the plaint and the petitioners cannot reasonably be expected to give better particulars to show that it amounted to fraud.

23. The learned District Munsiif's reasons for holding that the allegations did not show a cause of action were (i) that there was no reference or mention of the fraud and negligence in paragraph 9 of the petition which gave the dates of the cause of action (ii) that there was also no mention in paragraph 9 of any demand for partition by the petitioners and a refusal thereof by respondents 1 to 3(iii) that the allegations in the earlier paragraphs are not proved as the learned District Munsiff did not believe the evidence of P.W 1. These reasons have no bearing at all on the question which the learned District Munsiff had to consider. It is not necessary that all the allegations showing the cause of action should be summed up in the paragraph giving the dates thereof Respondents 1 to 3 were manifestly not in a position to give the relief sought by the petitioners for a declaration that the decree in O.S No. 255 of 1954 was not binding on their half share. A demand and refusal from them would have served no purpose.

24. The fact that the District Munsiif disbelieved the evidence of P.W 1 is also immaterial because proof of the allegations was not necessary at that stage. The fraud and negligence which the learned District Munsiff himself recognised as having been mentioned in the earlier paragraphs are, allegations showing a cause of action. It is impossible to understand his reasons for a contrary finding.

25. It is thus clear that the facts and reasons set out by the learned District Munsiff have no logical connection with his findings. The discussion by him may be termed as a mere parody of reasoning. No doubt it cannot be said in this case that the learned District Munsiff acted in excess of his jurisdiction or assumed jurisdiction which he did not possess. The question is whether the case falls under clause (c) of Section 115 of the CPC. Sri N. Ramamohana Rao cited the case of Keshardeo v. Radha Kisen, AIR 1953 SC 23 at p. 28 where the Supreme Court construing the words ‘illegally’ and ‘material irregularity’ occurring in S. 115 clause (c) said:

“They do not refer to the decision arrived at but to the manner in which it is reached. The errors contemplated relate to material defects of procedure and not to errors of either law or fact after the formalities which the law prescribes have been complied with”.

It appears to me that basing findings or conclusions upon facts which have no bearing or connection with them, is a material defect of procedure. There is only a show of reaching conclusion upon the facts of the case.

26. The lower court's order is therefore set aside and the petition is remanded for fresh disposal in the light of the above observations. Costs in the revision will abide and follow the result of the petition.

(This petition having been set down on Thursday, the 27th day of August 1959 and this day for being spoken to on the letter dated 25-8-1959 of Mr. N. Ramamohana Rao, Advocate for the 4th respondent the court made the following)

27. Sri N. Ramamohana Rao states that he did not press the question whether the petitioners' allegations in the plaint showed a cause of action, because I expressed myself at the hearing of the revision petition against the learned District Munsiff's conclusions on the question of pauperism. He seeks to distinguish AIR 1937 Mad 472 and AIR 1942 Mad 384 and relied on Krishnamurthi v. Chidambaram Chettiar, AIR 1946 Mad 243, Abbakka Shedthi v. Vittal Hegda, AIR 1948 Mad 129. The three decisions last cited establish that where the decree in the former suit is against the manager of a joint family, negligence on the part of the manager not amounting to fraud would not entitle the other members of the family to get the decree set aside.

28. But neither the pleadings nor the decree in O.S No. 255 of 1954 have been made available by the parties in order to determine whether the petitioners' father represented their joint family therein. Nor did the learned District Munsiff's reasoning proceed or refer to such a ground. The counter filed by the 4th respondent in the lower court also did not mention that aspect of the matter. None of the observations in my order dated 17-8-1959 on the revision petition are intended to preclude the 4th respondent from contending that the suit is not maintainable on any new grounds that may be available to them.

AD/D.R.R

29. Revision allowed.

© 2026 Gauge Data Solutions Pvt. Ltd.

x

Alert

Please log in or sign up for a free trial to access this feature.
Sign Up Login
x