1986 Supreme(MP) 483

IN THE HIGH COURT OF MADHYA PRADESH
K. N. SHUKLA, J.
State of M. P. - Appellant
Versus
Narpat Singh Dang - Respondent
C. R. No. 142 of 1985 (I)
Decided on : 25-04-1986

Headnote:Civil Procedure Code, 1908 – O.33, R. 1 and 2 – person receiving handsome salary, income from immoveable properties besides share in immoveable properties – not an indigent person.

        Short Note

       1. In his application under Order 33, Rules 1 and 2, C.P.C., non – applicant No.1 Sardar Narpat Singh had pleaded that he was not possessed of sufficient means to enable him to pay Court fees amounting to Rs. 46,700 for the plaint in his suit for damages. The State of M. P., which is the applicant in this revision, opposed this application and pleaded that non – applicant No.1 had moveable and immoveable property worth lakhs and he was capable of paying the prescribed Court fees. Learned District Judge, Jhabua had earlier allowed the application filed by non – applicant No.1 to sue as an indigent person. The State came up in revision against the said order. This Court by its order dated 14 – 8 – 84 set aside the order passed by the learned District Judge and remanded the case for further hearing after giving an opportunity to the State for leading evidence. Some witnesses were examined by parties during the said inquiry, counsel for the state filed an application at a late stage for leave to file a document and to examine one witness from Ambala, State of Haryana where non – applicant No.1 owns some land and a house. This application was rejected by learned District Judge and the impugned order was passed on 4 – 3 – 85. During arguments, learned counsel for the State made a grievance about the refusal of the District Judge to permit filing of the document and summoning a witness to prove the contents.

       2. Held : As already noted, there is not much dispute between the parties about the items of the properties shown in the Schedule by non – applicant No.1 Sardar Narpat Singh. The dispute is about its valuation and Sardar Narpat Singh's share therein. There is a house in the name of non – applicant's wife at Indore. It has been valued at Rs. 1,47,000 excluding the value of the plot of land, by non – applicant No.1. while it has been valued at Rs. 4 lakhs by a Sub – Engineer of the P. W. D. It is a three storied building and is within the Indore Corporation limits. Learned District Judge rejected the evidence of the P. W. D. engineers mainly on the ground that they did not take into consideration the depreciation in the house. Even if the depreciation at about 4% is taken into consideration, the property will still be worth more Rs. 2 lakhs. But the snag is not so much about its valuation as about the fact that the house stands in all the municipal records and other official papers in the name of Sardar Narpat Singh's wife. In his cross examination, Sardar Narpat Singh stated that the plot was purchased by him in his own name, but later he transferred it in the name of his wife in 1973. He further stated that the house was constructed by joint family funds. Details, however, were not furnished about the joint family income invested in the construction of the house.

       3. It was contended by learned counsel for the State that in fact the house belonged to non – applicant Sardar Narpat Singh and he was realising the rent thereof and his wife was only a Benami owner. Non – applicant No.1 in reply relied on some authorities to show that the house being recorded in the name of the wife was not a realisable asset in his bands and, therefore, it could not be taken into consideration for deciding the question of possession of sufficient means by him.

       4. Without going into this question about the real ownership of the house, on admission of non – applicant No.1 Narpat Singh himself, he has his share as member of the joint Hindu family in the said house.

       5. At Bhaisua, District Rajgarh, 48 acres of lands are recorded in the name of Sardar Narpat Singh. The lands originally belonged to Santokh Singh, father of Sardar Narpat Singh. After his death, during mutation proceedings before Tahsildar, Sardar Santokh Singh's widow declined to get her name mutated with the result that Sardar Narpat Singh is recorded as a sole Bhumiswami.

       6. N. A. 1 Sardar Narpat Singh contended that this was a joint family property and even though his name is recorded as Bhumiswami, his mother and sisters also acquired shares after his father's death. Further, his own son had a share as coparcener. Taking all these facts into consideration and also the fact that under the M. P. Land Revenue Code, 10 acres of lands were exempt from attachment and sale, the portion falling to his share could not be taken into consideration for deciding the question of sufficient means. There is some inconsistency in the submissions of non – applicant No. 1 Sardar Narpat Singh. In respect of the house shown at Indore, he claims that the same stands in the name of his wife and, therefore, he cannot transfer and raise fund therefrom. But in respect of the property standing in his own name, which normally any prudent purchaser will not object to purchase, he claims that the same is a joint family property and his share therein is less than 10 acres.

       7. About profits also accruing from the land, there was some discrepancy. His mother was examined as a witneS. She stated that if the crops are good, profit is about Rs. 20,000 from this land.

       8. Besides the above immoveable property, non – applicant No. 1 holds an FDR for Rs. 9000. He claims that the same was pledged with his wife. Learned District Judge readily believed every explanation given by non – applicant No.1 and went on to make some intemperate remarks against the Govt. fwd other officers for which there was no basis on record.

       9. The pledge theory was not proved by any evidence. As regards the moveable like television, sterio, furniture, etc., the explanation of N. A. 1 Sardar Narpat Singh was that the same bad been obtained out of the accretions of the joint family property. Besides, he had of his own volition thrown it in the family hotch potch and impressed it with the character of the joint family property. Relying on Goli Eswariah v. Gift Tax Commissioner, (AIR 1970 SC 1722), non – applicant No.1 contended that this can be done by a Hindu unilaterally merely by declaring his intention to throw his separate property into the common stock. This observation in the cited case was made by the Supreme Court for deciding whether gift tax was payable by a Hindu when be throws his separate property into common stock. In the instant case, such a plea will not be available for the question which the Court has to decide while considering an application under Order 33, Rules 1 and 2, C.P.C. i.e. whether the person instituting the action is possessed of sufficient means to pay Court fees or not. It was not disputed that moveable property mentioned above i.e. FDR. TV set, etc. were purchased by Sardar Narpat Singh and prima facie he is the owner of this property.

       10. I will not discuss the value of the revolver because the licence, which has been produced, shows that it could not be transferred for two years, i.e. on the date of the application under Order 33, C.P.C., there was a bar on its transfer.

       11. It is not necessary to go into the nicety of the Hindu Law for deciding the sufficiency of the means of N. A. 1 Sardar Narpat Singh to pay the requisite Court fees. He has chosen to claim exorbitant damages on the ground that his superior officers have defamed him by making adverse entries in his annual confidential reports. N. A 1 Sardar Narpat Singh holds an important post and gets a salary of Rs. 1600 p m. as per his statement. Besides, he gets income from the house and agricultural property. He has sufficient moveable property and his standard of living is quite high. If he chooses to claim huge damages, he has to make some sacrifice and raise funds from his moveable and immoveable properties to pay the requisite Court fees in order to vindicate his honour.

       12. Learned Court below did not shift the evidence properly and it appears from the learned Judge's observation in para 17 of the impugned order that he was influenced by some subjective consideration which rendered his finding perverse. AIR 1970 SC 1722 distinguished.

       Revision allowed.