An undivided coparcener in a Mitakshara joint family has sufficient means to pay court-fee within the meaning of O.33, R.1, C.P. Code.

ORDER :- The only question in this civil revision petition is, whether the court below was right in holding that the petitioners were not indigent persons, but had sufficient means to pay the deficit court-fee on their plaints, which, according to the checkslip, amounted to Rs. 2347.

2. At the inquiry into the plaintiff's pauperism, the learned Subordinate Judge found the following facts : The plaintiffs were the undivided sons of one Thulasi Nainar Along with their father and another brother of theirs, they constituted joint Hindu family. The plaintiffs were living jointly with their father. The family held, in all, 20 acres of land, originally. Of these 1.75 1/3 cents were sold in the period between 1949 and 1963. In the remaining lands of the extent of nearly 18 acres, a mortgage had been raised as recently as in 1971.

3. On the above facts, borne out by the evidence, the learned Subordinate judge dismissed the plaintiffs' petition under O.33, R.1 to continue the suit in forma pauperis. The learned judge set out his reasons as under -

"I come to the conclusion that the petitioners are not living separately away from their father and that they are only living - with their father as joint family members cultivating the family lands. The father has still got about 18 acres of lands from which he is getting income. As the plaintiffs are living with their father as joint family members they have their share in the ancestral properties of their father by birth. It is the duty of the father to pay the necessary court-fees from the share of the petitioners' income from the joint family lands. From the evidence, on record, I come to the conclusion that the petitioners have sufficient means to pay the necessary court-fees".

4. In this revision petition filed by the plaintiffs, their learned counsel Mr. Padmanabhan, characterised the reasoning of the learned Subordinate Judge as based on a twofold misconception of the law. The first mistake, according to the learned counsel, related to a misunderstanding of the extent of the rights of Hindu coparceners in the properties and funds possessed by their undivided family. The second misconception, he said, related to the requirements of O.33, R.1, C.P. Code.

5. On the first aspect, Mr. Padmanabhan said that the learned Judge was in error in thinking that a coparcener in a Mitakshara joint family had any right to any share in the income or corpus of the family properties so long as the family remained joint. He said that the learned judge was also in error in assuming that the kartha of a joint Hindu family was under a duty to pay the court fee payable on the plaint in a private suit instituted by an undivided coparcener.

6. On the second as Mr. Padmanabhan said that what the Civil P.C. in O.33, R.1 required the court to be satisfied about was the sufficiency of means of the particular individual who asks for leave to sue in forma pauperis, and not the possession of property in the hands of somebody else other than the petitioner before the court. Learned counsel added that it is no part of the inquiry under this provision to find if the petitioner could some how draw upon some one else's resources for the purpose. If this were so, he said, any one who can beg, borrow or steal can be regarded as one possessed of the means of paying court-fee to the Government.

7. I may observe that by and large, Mr. Padmanabhan is right in his description of the legal position of an undivided coparcener in a Mitakshara joint family. So long as a family governed by the Mitakshara remains undivided, no coparcener therein can point to any item of joint family property or joint family income and predicate that he is entitled to it. He cannot even say, generally, that he is entitled in the gross to any defined share in the family properties as a whole, the reason being that as a coparcener, his interest in the joint family property does not relate to any definite or fixed share, but is ambulatory in character,