Madras High Court
Parvathi vs Kumar on 4 March, 2021
C.M.A.No.1614 of 2009
.IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated:04.03.2021
THE HONOURABLE MRS.JUSTICE T.V.THAMILSELVI
C.M.A.No.1614 of 2009
1.Parvathi
2.Inidirani .. Appellants
Vs.
1.Kumar
2.Ramalingam Asari
3.Sivalingam
4.Arasumani
5.Amirtham .. Respondents
PRAYER : Civil Miscellaneous Appeal is filed under 43 Rule (1) of the
Civil Procedure Code, against the fair order and decretal order dated
09.02.2009 passed in P.O.P.No.99 of 2007, in unnumbered in O.S.No. of
2007, on the file of the Principal District Judge, Villupuram.
For Appellants : Mr.D.Baskar
For Respondents : No Appearance
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C.M.A.No.1614 of 2009
JUDGMENT
The appellants herein are the petitioners, who filed a suit for partition
against the defendants along with a petition under order XXXIII Rule 7(iii) of
CPC, along with a petition to permit them as Pauper to file the suit as they
have no means to pay the Court fee.
2. The respondents in that Original Petition contested the said Original
Petition submitted that the petitioners are having sufficient means to pay the
Court fee and prayed to dismiss the petition. Aggrieved by that they have
preferred this appeal.
3. Point for Consideration:
Whether the lower Court erroneously concluded
that they are having sufficient means to pay the Court fee
even though they proved that they are persons of no
means?
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C.M.A.No.1614 of 2009
4. The learned counsel for the appellants submits that the
appellants have got married and settled with their husbands and they have not
possessed any individual properties. But the trial Judge, on considering the
property belonging to their husbands concluded that they have sufficient
means to pay Court fee, which is erroneous under law and he prays to set
aside the order passed by the trial Judge.
5. On perusal of the records reveals that these appellants
claiming reliefs of partition for the suit property, which is said to be belonged
to their father absolutely. The respondents are the brothers and purchasers of
the property. The objection raised by the brothers/respondents 1 and 2 that
these petitioners were already given marriage and they were lived along with
her husband and children, who are all possessed immovable properties
sufficiently.
6. During the cross examination of PW.1, he stated that she had
three daughters, all are married and they are helping her. Besides, her
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C.M.A.No.1614 of 2009
husband also possessed own houses at Karamanikuppam, PW.2/2nd petitioner
also admits that she is having house in the Housing Board. Hence, as per the
evidence of PWs.1 and 2 they themselves admit that their families own
properties. Order 33 rule 1, reads as follows:
1.Suits may be instituted by indigent person -
Subject to the following provisions, any suit may be
instituted by an [indigent person].
[explanation I- A person is an indigent person,-
(a) if he is not possessed of sufficient means
(other than the property exempt from attachment in
execution of a decree and the subject matter of the suit)
to enable him to pay the fee prescribed by law for the
plaint in such suit, or ........
(i) to provide that a person shall be deemed to be
an indigent person, if he is not possessed of sufficient
means (other than property exempt from attachment in
execution of a decree and the subject - matter of the suit)
to enable him to pay the fees prescribed by law for the
plaint in such suit, or where no such fee is prescribed, if
he is not entitled to property worth one thousand rupees
other than property exempt from attachment in execution
of a decree and the subject matter of the suit.
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C.M.A.No.1614 of 2009
7. Considering the oral and documentary evidence, the trial
Judge rightly concluded that they are having properties valued more than
Rs.1,000/- and the appellants are not entitled to declare as Pauper which calls
for no interference by this Court. Accordingly, the substantial question of law
is answered.
8. Accordingly, this Civil Miscellaneous Appeal is dismissed as
devoid of merits. No Costs.
04.03.2021
ub
Index : Yes/No
Speaking Order: Yes/No
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C.M.A.No.1614 of 2009
T.V.THAMILSELVI,J.
ub
C.M.A.No.1614 of 2009
04.03.2021
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