Decided on September 04,1953

D. GOVINDAMMAL Respondents


Venkatarama Aiyar, J. - (1.) This revision is preferred against the order of the learned City Civil Judge, declining to grant permission to the petitioner to institute a suit in forma pauperis. The petitioner is a member of a joint family and the proposed suit is one for partition. There is no dispute that excluding the properties which are the subject- matter of the suit, he is not possessed of sufficient means to enable him to pay the requisite court-fee. The ground on which his petition was dismissed is that there is a provident fund, standing in his name with the Port Trust, Madras, where he is employed and this was not disclosed in his application to sue in forma, pauperis. This decision is based upon the decision of this Court in --'Chellammal v. Muthulakshmi Ammal', AIR 1945 Mad 296 (A), which in turn approves of the decision in -- 'Kuppusami Naidu v. Varadappa Naidu', AIR 1943 Mad 11 (B). In -' AIR 1943 Mad 11 (B)' the petitioner owned certain properties which were subject to a mortgage. The application to institute the suit in forma pauperis omitted all reference to them. Chandrasekhara Aiyar J. found that it was not a case of unintentional or accidental omission, but a fraudulent suppression, it was contended in justification of the non-inclusion of these properties that they were not of any statable value and that their inclusion would not have made any difference in the result of the petition, Chandrasekhara Aiyar J. held that this was not a proper ground for not disclosing them in the petition; and that the utmost bona fides were required of the petitioner in a petition of this kind. This decision was approved by Leach C. J. and Clark J. in -- 'AIR 1945 Mad 296 (A.)', There the facts were that a petition for leave to file an appeal in forma pauperis was granted. Thereafter, an application was presented for revocation of the order on the ground that the existence of certain assets had been suppressed. It was found that the appellant was entitled to a house which, however, was under a mortgage to a co-operative society. It was argued as ground for the non- inclusion of the house that the appellant was entitled only to a life interest therein. On that, the Court observed as follows: "It follows that she obtained an order from the Court without disclosing material facts. In fact, her action amounted to a fraud on the Court. The son says that the equity of redemption is of no value; but we are certainly not prepared to accept his wording for this. As was pointed out in -- 'AIR 1943 Mad 11 (B)' the utmost good faith is required of the petitioner in the matter of the disclosure of his. or her assets and that any intentional departure from good faith whatever the motive may be must result in the dismissal of the petition."
(2.) he position, therefore, is that a person who applies for leave to institute a suit or file an appeal in forma pauperis must act with the utmost good faith and if it turns out that there was an intentional non-disclosure of assets belonging to the petitioner, that would be a ground for dismissing the petition.
(3.) I am of opinion that these decisions have no application to the present case. The assets which were not disclosed in the application were a provident fund. These funds are ordinarily intended as a provision for dependents and the explanation of the petitioner that he was under the impression that they do not belong to him is quite understandable. It is pointed out that under the rules governing these funds, loans upto a specified extent might be granted by the authorities, but that however is a matter of discretion with them. In fact It is stated before me that an application for loan by the petitioner to the fund has been refused. But the question is not whether the petitioner had some sort of title to the provident fund but whether having regard to its incidents he had reason to believe and actually did believe that it was not an asset available to him. There are no grounds whatever for rejecting his explanation, and it must be held that in omitting to disclose the provident fund, the petitioner acted bona fide. In this respect this case differs from the two decisions cited above; in both of them the finding was that there was fraudulent suppression. These decisions lay down a salutary rule but it must be limited to cases where the suppression is deliberate and not bona fide. To extend that rule to cases of all omissions, even when they are due to inadvertence or mistake, would result in grave injustice, and no warrant can be found for it in the provisions of the Code.;

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