Mohar Raut vs Sheolochan Singh and Others

Das, J.—This is an application on behalf of the plaintiff, who is a minor, against an order of the learned Subordinate Judge of Chapra, dated 18th February 1946, by which order the learned Subordinate Judge has rejected an application of the petitioner to sue in forma pauperis. The petitioner is a minor represented by his mother. The petitioner tiled an application to sue in forma pauperis for the purpose of setting aside certain alienations stated to have been made by his father.

The learned Subordinate Judge has expressed his finding as follows:

It appears that the joint family of which the applicant is a member deals in buffalos and cows both at Chapra and Calcutta. The applicant is Ahir by caste. This is also a circumstance that supports the version of the opposite party. Besides the khatisn shows that the joint family owns? landed property. Thus taking all these facts and circumstances, I am of opinion that the applicant is in a position to pay court-fees.

It is contended before me that the learned Subordinate Judge has misdirected himself and acted with material irregularity in failing to investigate the real point which arose for decision. The mere fact that the joint family of which the petitioner was a member owned some property and dealt in cattle did not by itself: show that the petitioner was possessed of sufficient means to pay the court-fees. As has been observed in a recent decision of this Court in Dhananjai v. Rajkeshwar AIR 1947 Pat. 34 the possession that is spoken of in the explanation to Rule 1 of Order 33, Civil P.C., is not possession of property but of sufficient means and what the Court is concerned to enquire into is not actual possession of property, but capacity to raise the money necessary to pay the court-fee. There are many other decisions to the same effect, and it is not necessary to refer to all the decisions which have been cited before me.

The learned Subordinate Judge did not find that the petitioner was possessed of sufficient means to pay the court-fees; he has merely found that the joint family of which the petitioner was a junior member had landed property and dealt in cattle. With regard to the question of dealing in cattle there is no finding that the joint family did possess any cattle from which money could be raised. It is well settled that in a Mitakshara Hindu family no cosharer can predicate a share until there is a partition. The learned Subordinate Judge has not found what is the value of the property which the joint family has; nor has he found that the joint family had any property other than these which are the subject matter of the alienations regarding which the petitioner wishes to sue in forma pauperis. My attention has been drawn to a decision of the Allahabad High Court in Ram Prasad Singh and Others Vs. Jagatamba Prasad Singh and Others, where it has been held that in cases where a minor member of a Hindu joint family sues to set aside an alienation of joint family property by his father and where there is a share which has not been transferred, the minor cannot sue as a pauper unless an attempt has been made and it has actually been found impossible for the minor to obtain funds. It has been pointed out in that case that if the argument that a minor member has no definite share in joint family property is, accepted as a good ground for permitting him to sue in forma pauperis, then every minor member of a joint family, except in the rare case of his possessing separate property, must be ipso facto entitled to sue as pauper. I am not prepared to go so far as to say that in every case a minor member of a joint family must be ipso facto entitled to sue as pauper. In the case before me there is no finding as to what property the joint family possesses; nor is there any finding that the joint family has any property other than these which were the subject of alienation made by the father and which the petitioner was challenging. In the absence of such findings it cannot be said that the minor was possessed of sufficient means to pay court-fees. On the mere findings that the joint family has some property and that it dealt in cattle it cannot be said that the minor had sufficient means to pay the court-fees. There is an unreported decision of this Court in civil Revision No. 200 of 1946, disposed of on 9th January 1947, where in similar circumstances it was held that the minor was entitled to sue in forma pauperis.

In the result, I would allow the application and set aside the order of the learned Subordinate Judge. The learned Subordinate Judge is now directed to allow the petitioner to sue in forma pauperis. There will be no order for costs in this Court.