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2014 DIGILAW 1395 (RAJ)

Sushila Tanwar v. District Judge

2014-07-15

R.S.CHAUHAN

body2014
JUDGMENT 1. - An old and poor woman, Smt. Sushila Tanwar, had filed an application under the Indian Succession Act for grant of probate. She had also filed an application under Order 33(2) CPC for being permitted to institute the suit as an indigent person. However, by order dated 16.5.2013, the application under Order 33(2) CPC had been dismissed by the District Judge, Jaipur Metropolitan, Jaipur. Hence, this petition before this Court. 2. Mr. Vinod Tanwar, the petitioner's son has appeared before this Court as the learned members of the Bar are on strike, and pleaded the case. According to him, the relevant words in Order 33, Rule 1 CPC, are that a person is an indigent person, if he/she is not possessed of "sufficient means". According to him, according to the valuation of the property done by the Collector (Stamps), the value of the property is Rs. 66,12,820/-. Therefore, a stamp duty of Rs. 1,98,384.60 has to be paid by the petitioner. Secondly, his father who was a govt. servant, receives a pension of merely Rs. 5700/- per month. Therefore, the petitioner does not have the sufficient means to pay the stamp duty. Therefore, considering the meagre income of the family, the petitioner is not in a position to pay the stamp duty immediately. But the petitioner had given an undertaking before the learned Judge that she would pay the stamp duty prior to issuance of the probate. Thus, according to Mr. Vinod Tanwar, the learned Judge has erred in dismissing the application filed by the petitioner. 3. On the other hand Mr. Ram Kishore, respondent No.5, has appeared before this Court and frankly conceded that in case the requisite stamp duty were paid before issuance of the probate, he would have no objection to the same. 4. Heard both the parties before this court and perused the impugned order dated 16.5.2013. 5. Order 33, Rule 1 CPC reads as under:- "1. Suits may be instituted by indigent person Subject to the following provisions, any suit may be instituted by an indigent person. 4. Heard both the parties before this court and perused the impugned order dated 16.5.2013. 5. Order 33, Rule 1 CPC reads as under:- "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 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 (b)where no such fee is prescribed, if he is not entitled to property worth one thousand rupees other than the property exempt from attachment in execution of a decree, and the subject-matter of the suit. Explanation II.-Any property which is acquired by a person after the presentation of his application for permission to sue as an indigent person, and before the decision of the application, shall be taken into account in considering the question whether or not the applicant is an indigent person. Explanation III.-Where the plaintiff sues in a representative capacity, the question whether he is an indigent-person shall be determined with reference to the means possessed by him in such capacity." 6. A bare perusal of Order 33, Rule 1 CPC clearly reveals that the court is called upon to consider the fact if the person who claims to be indigent possesses "sufficient means", or not in order to enable him to pay the fee prescribed by law for the plaint in said suit. While considering the sufficiency of the means, a holistic view has to be taken on the evidence produced by the person. In the present case, according to the report of the Collector (Stamps), the property is worth about Rs. 66 Lac and the stamp duty comes out to be approximately Rs. 2 Lac. Thus, the petitioner was required to pay a stamp duty of almost Rs. 2 Lac. But the learned Judge has merely noticed in the impugned order that the petitioner's husband was receiving a pension of Rs. 5700/- per month and had received Rs. 3 Lac at the time of his superannuation. The learned Judge has nowhere discussed the economic and financial condition of the petitioner in toto. 2 Lac. But the learned Judge has merely noticed in the impugned order that the petitioner's husband was receiving a pension of Rs. 5700/- per month and had received Rs. 3 Lac at the time of his superannuation. The learned Judge has nowhere discussed the economic and financial condition of the petitioner in toto. Thus, the learned Judge has failed to appreciate whether the petitioner has "sufficient means" to pay the fee prescribed by the law or not. 7. For the reasons stated above, this petition is hereby, allowed. The order dated 16.5.2013 is, hereby, quashed and set aside; the case is remanded back to the learned Judge for deciding the application filed by the petitioner under Order 33(2) CPC afresh. The said exercise shall be carried out within a period of one month from the date of receipt of certified copy of this judgment. 8. The stay application also stands disposed of.Petition Allowed. *******