IN THE HIGH COURT OF KERALA AT ERNAKULAM
FAO.No. 134 of 2008()
1. JACOB, S/O.JAMES, KURISSADI KIZHAKKATHIL
... Petitioner
Vs
1. RAMACHANDRAN BABY, SYAM NIVAS,
... Respondent
2. RAMACHANDRAN SYAM, SYAM NIVAS,
3. BABY RANI, SYAM NIVAS,
4. BABY NIMMY, SYAM NIVAS,
5. TAHSILDAR, KOLLAM TALUK.
For Petitioner :SRI.K.S.MANU (PUNUKKONNOOR)
For Respondent :SRI.V.V.RAJA
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :02/07/2008
O R D E R
P.R. RAMAN &
T.R. RAMACHANDRAN NAIR, JJ.
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F.A.O. NO. 134 OF 2008
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DATED THIS, THE 2ND DAY OF JULY, 2008.
J U D G M E N T
Raman, J.
This appeal is against the order in I.A. 2536/2003 in O.S. 89/2002
passed by the Sub Court, Kollam, dismissing the application. The said
application was filed by the appellant herein seeking a declaration that he is
an indigent person.
2. The court below, on an appreciation of the evidence on record,
found that the appellant/petitioner is not an indigent person. In that regard,
the court below has referred to the report of the Village Officer as also the
evidence of PW.3. According to the court below, Ext. B1 report of the
earlier Village Officer will show that the plaintiff is having 4.43 Areas of
land in Thrikkadavoor Village and he is engaged in the sale of second hand
building materials.
3. On a careful consideration of the order impugned in this appeal,
we find that the court below has placed heavy reliance on Ext.B1 report and
no reliance is placed on the later report Ext.A1. Admittedly, when a latest
F.A.O. 134/2008 :2:
report is filed in the case as Ext.A1, the court below ought to have looked
into the said report rather than placing reliance on the earlier report.
Whether as on the date of filing the suit, the petitioner is an indigent person,
is the question. We have gone through Ext.A1 report, wherein the Village
Officer has reported that there is an extent of 04.20 Ares of land in the
name of the petitioner’s father who is no more and an extent of 05.40 Ares
in the name of his mother, who is still alive, that the parents of the
petitioner have got other four children and the abovesaid properties in the
name of the parents are not partitioned among the children. If so, the extent
of 04.20 Ares belonging to his father will devolve on his legal heirs
namely, the wife and children equally. That means there is only a fractional
interest which the petitioner could claim in the property of his deceased
father. Whether he has got any disposable interest in the said item and
whether he is in a position to pay the court fee is a matter which the court
below has not considered. Since the entire property cannot be said to be
belong to the appellant herein, the court below was not justified in
dismissing the application.
4. Accordingly, the order passed by the court below is set aside. It
F.A.O. 134/2008 :3:
is open to the appellant/petitioner to adduce further evidence in this regard
regarding the income derived from the sale of old building materials.
The F.A.O. is disposed of as above.
P.R. RAMAN,
(JUDGE)
T.R. RAMACHANDRAN NAIR,
(JUDGE)
knc/-