Dismissed¶22

S.Ethirajan v. M.Selvam and 4 others

Madras HC6 Jan 2026A/4798/2023

Case brief

AI extract

What is this about?

Permission to sue as indigent person under Order 33 CPC refused and application dismissed; executor suing in representative capacity under s.211 Indian Succession Act 1925 after probate (O.P. No.733 of 2019, granted 01.03.2021); estate assets, including suit property bequeathed to charity, includible in means assessment; court fee payable out of estate; mere assertion of poverty insufficient; court fee Rs.1,40,00,600/- per plaint memo; declarations sought against sale deeds of 1997 and equitable mortgage of 2019; Madras High Court.

What did the court decide?

The application for permission to register the suit as an indigent person is refused: the applicant did not prove the petition averments by any oral or documentary evidence, and the Court was not inclined to entertain the petition. ¶21

S.Ethirajan Vs M.Selvam and 4 others — Succession and Inheritance | Madras HC (2026)

What the court decided

AI extract

Outcome

Dismissed

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Issue for consideration

Whether the applicant/plaintiff, executor under the Will of Lakshmi Ammal, is entitled to permission to register the suit as an indigent person (i.e., without payment of the court fee). +1 more

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Court's answer

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Ratio / Principle

An executor cannot invoke personal indigency to avoid payment of court fee when the estate he represents has assets.

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Key takeaways

Court fee has to be paid out of the estate even where the ultimate beneficiary is a charity.ratio¶20
Neither the fact that the property is the testatrix's only property, nor that it is under dispute, nor that it is bequeathed for charitable purpose places it outside the executor's control or exempts it from consideration while assessing means under Order 33 CPC.ratio¶20
The suit is instituted by the applicant not personally but in his representative capacity as executor under the probated Will (s.211, Indian Succession Act, 1925); upon grant of probate the entire estate of the testatrix vests in the executor, who represents the estate for all purposes.

Detailed headnote1 paragraphs

Indigent-person application (Order 33 CPC) dismissed. The applicant/plaintiff, executor under the probated Will of Lakshmi Ammal, sought leave to register his suit — seeking declarations that the sale deeds dated 27.02.1997 (Doc.No.212/1997, SRO Triplicane, in favour of the 2nd defendant), dated 19.11.1997 (Doc.Nos.1160 & 1161/1997, SRO Triplicane, by Munia Pillai in favour of the 1st and 3rd defendants) and the equitable mortgage dated 20.06.2019 in favour of the 4th defendant are null and void — as an indigent person, pleading that the court fee of Rs.1,40,00,600/- was beyond his means as a 71-year-old with no savings, that he held no property and that the bequest was for charity. Respondents 2–4 countered that he had transferred assets to his children, had always been represented by advocates, and had paid Rs.25,000/- court fee in probate O.P.No.733 of 2019 (probate granted 01.03.2021); the Government Pleader reported he lived comfortably with his son. Held: the suit is filed in representative capacity as executor under s.211, Indian Succession Act, 1925; the estate's immovable property (the suit property itself) must be reckoned in assessing means; neither its disputed character nor its charitable destination exempts it; an executor cannot plead personal indigency where the estate has assets, and court fee must be paid out of the estate even if the ultimate beneficiary is a charity; mere assertion of poverty is insufficient. No oral or documentary evidence having been adduced, the application was dismissed without costs.

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A.No. 4798 of 2023 in

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CS. DR. No.111613 of 2023

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MASTER 06.01.2026

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1. This is an application filed by the applicant/plaintiff claiming permission to

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2. The case of the applicant is that he is appointed as an executor of the Will of Lakshmi Ammal and as such he has filed the above suit for Judgment and decree against the defendants to declare the sale deed dated 27.02.1997 registered in Doc. No.212 of 1997 on the file of SRO Triplicane in favour of the 2^nd defendant in respect of the plaint scheduled property as null and void, to declare the sale deed dated 19.11.1997 registered in Doc. Nos. 1160 and 1161 of 1997 on the file of SRO Triplicane in favour of 1^st and 3^rd defendants respectively by Munia Pillai in respect of the plaint schedule property as null and void and to declare the equitable mortgage of the schedule mentioned property by the 2^nd and 3^rd defendants along with others dated 20.06.2019 in favour of the 4^th defendant as null and void. The applicant further stated that he has to pay total court fee of Rs.1,40,00,600/- as per the memo of calculation given in the plaint and he being the senior citizen aged about 71 years cannot do any work and though he was employed as a medical whole sale dealer on daily wages 15 years back, he has no savings at all. The applicant further stated that he is not in possession of any movable or immovable property and is not a beneficiary under the Will and the schedule mentioned

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https://www.mhc.tn.gov.in/judis

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property bequeathed under the Will is meant for charity. Hence this application may be allowed.

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3. Despite having entered his appearance the 1^st respondent/1^st defendant has not filed his counter. The 2^nd and 3^rd respondents have filed the counter stating that as per the plaintiff’s own statement he was working as a medical whole sale dealer and the plaintiff had suppressed the fact that he had transferred all his assets in the name of his son and his daughter for the purpose of this suit. Further the plaintiff had been constantly represented by advocates in all stages from issuing legal notices to filing of probate OP and filing of above suit and no where he has stated that the same was done with the help of pro-bono advocates. The plaintiff possess sufficient means and so he is not entitled to claim the status of an indigent person.

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4. The 4^th respondent has filed his counter stating that the applicant has not filed any document to prove that he is an indigent person and lacks means to pay the required court fee as prescribed under the Act. The applicant has not produced any revenue document/certificate confirming his indigence as mandated by the statute. It is further stated that the applicant herein has paid entire court fee i.e., a sum of Rs.25,000/in OP No.733 of 2019 to probate the Will, which was granted on 01.03.2021 by the Hon’ble High Court, which clearly illustrates that the applicant is taking double stand on hypocrite way to avoid payment of court fees and so this application is to be dismissed.

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https://www.mhc.tn.gov.in/judis

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5. The 5^th respondent/Government Pleader has filed a report stating that on enquiry conducted it is came to known that the applicant is living with his son at No.84 Athanur Village, M.G.R.Nagar, and is living a standard life.

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6. Heard both side counsels. No oral or documentary evidence let in by both sides. The applicant has filed the suit to declare the sale deed dated 27.02.1997 registered in Doc. No.212 of 1997 on the file of SRO Triplicane in favour of the 2^nd defendant in respect of the plaint scheduled property as null and void, to declare the sale deed dated 19.11.1997 registered in Doc. Nos. 1160 and 1161 of 1997 on the file of SRO Triplicane in favour of 1^st and 3^rd defendants respectively by Munia Pillai in respect of the plaint schedule property as null and void and to declare the equitable mortgage of the schedule mentioned property by the 2^nd and 3^rd defendants along with others dated 20.06.2019 in favour of the 4^th defendant as null and void. Admittedly the applicant has filed the suit acting in the capacity of executor under the Probated Will under section 211 of the Indian Succession Act, 1925. Upon grant of probate, the entire estate of the testatrix vests in the executor, who represents the estate for all purposes. The present suit is instituted not in the personal capacity of the applicant, but in his representative capacity as executor, seeking to protect the estate property of the testatrix.

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7. While considering the application under Order 33 of C.P.C the Court is bound to take into account all property over which the applicant has possession or

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https://www.mhc.tn.gov.in/judis

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control, except exempt property as per explanation 1 to Rule 1. In the present case, it is admitted that the estate possess immovable property, namely the suit property itself. The fact that the property is the only property of the testatrix, that it is under dispute, or that it is bequeathed for charitable purpose, does not make the property outside the control of the executor nor does it exempt such property from consideration while assessing means. An executor cannot invoke personal indigency to avoid payment of court fee when the estate he represents has assets. Court fee has to be paid out of the estate even where the ultimate beneficiary is a charity.

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8. Further, in the given case on hand, the applicant has failed to adduce any evidence to prove that the estate he represents do not have any movable or immovable assets. On the contrary, the fact that the applicant earlier paid court fee in probate proceedings and the pleaders report indicating a comfortable living status probablise the case of the respondents 2 to 4. It is well settled law that mere assertion of poverty is insufficient and an executor representing an estate with assets cannot be treated as an indigent person under Order 33 of C.P.C. Under such circumstances, since the applicant has not proved the petition averments by way of proper oral or documentary evidence, this Court is not inclined to entertain the petition.

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In the result, this application is dismissed. No costs.

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MASTER

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https://www.mhc.tn.gov.in/judis

S.Ethirajan v. M.Selvam and 4 others

Case brief

What is this about?

What did the court decide?

S.Ethirajan v. M.Selvam and 4 others

Case brief

What is this about?

What did the court decide?

What the court decided

Issues for consideration

Statutes considered

Procedural history

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