Mt. Jainatun Nissa Bibi and Another vs Mt. Idrakun Nissa

Dhavle, J.—This is an application in revision against an order of the Subordinate Judge of Cuttack allowing an application for permission to sue in forma pauperis.

The application was opposed not by the Government Pleader but by the petitioners who were to be, defendants in the pauper suit. One of the grounds on which the opposition was based was that the schedule of property annexed to the application as required by Rule 2 of Order 33 omitted two items, on which alone stress is now laid, viz., the dower due to the applicant below from her second husband and her share in the immovable properties inherited by her from her first husband (since deceased). Another ground was that the applicant below was not a pauper within the explanation to Rule 1 of the order.

As to the first of these grounds the learned Subordinate Judge referred to Durga Prasad v. Sri Niwas AIR 1930 Pat. 368, which supports the objection, but he observed that the object of the rule being to help the Government in ascertaining whether the applicant is in a position to pay the court-fee assessable on the plaint, it was of no consequence, so far as the opposite party (i.e., the petitioners before me) was-concerned, whether the schedule required by Rule 2 was attached to the application or not, particularly when at least the admitted case is that the applicant is riot in possession of any portion of the inheritance left by her deceased husband.

Having already found that the dower due from the applicant''s second husband was all deferred the learned Judge below went on to observe that, "the answer of the opposite party to this part of the case (viz., the applicant''s inheritance from her first husband) is at least not bona fide" meaning apparently that the opposite party had not made any definite assertions about it, though they were no strangers to it.

He then referred to the applicant''s case that she had been turned out of her husband''s house and that papers relating to her husband''s property had been snatched away from her, and he concluded that it was not possible for her to give a precise and accurate account of the properties left by her deceased husband. As regards the factum of pauperism, the learned Subordinate Judge took the view that the applicant before him being admittedly not in possession of the inheritance from her husband, her "prospective right of possession" did not entitle the Court to hold that she was possessed of sufficient means to enable her to pay the prescribed court-fee.

It has been contended on behalf of the petitioners that the learned Subordinate Judge exercised his discretion with material irregularity on both these points. Though Rule 5(a) of Order 33 says that the Court shall reject an application for permission to sue as a pauper where it is not framed in the manner prescribed by Rule 2, I am inclined to agree with Kulwant Sahay J. who in Mt. Chemela Kuer v. Purusottam Das AIR 1932 Pat. 308 considered the decision in Durga Prasad v. Sri Niwas AIR 1930 Pat. 368 and held that omissions from the schedule need not by themselves be fatal unless they are mala fide. But on this footing it would clearly be necessary for the Court to deal with the question of pauperism on the merits. We thus come td the only substantial question argued before me, viz., whether the Subordinate Judge did not act with material irregularity in the exercise of his jurisdiction when he left out the applicant''s share in the inheritance from her first husband in considering whether or not she was possessed of sufficient means, for as to the dower from her second husband, the finding that it was all deferred is based on one-sided evidence and can not be interfered with in revision.

The learned Subordinate Judge referred to Mabia Khatun Vs. Sheikh Satkari and Others, and Sundarathammal v. Paramaswami Asari AIR 1933 Mad. 883, and took the test of pauperism to be not whether in the abstract the applicant had the power of raising money but whether in the concrete circumstances of the case she could not succeed in raising anything substantial by exercising that power. He further referred to the distinction made in AIR 1929 319 (Nagpur) , between being ''entitled to property'' (the expression used in the latter part of the explanation to Rule 1) and being "possessed of" sufficient means (as in part 1 of the explanation). One witness was called by the opposite party in the lower Court apparently to say that he was "willing to be a prospective purchaser" of the applicant''s share in her husband''s assets, and though the learned Subordinate Judge referred to him as a respectable witness, he remarked that "this readiness on the part of the witness means nothing." I have found it somewhat difficult to gather what exactly the learned Subordinate Judge intended to convey by this remark. Mr. Rao who appears before me for the applicant below has suggested that the learned Subordinate Judgmeant that he was not impressed by the witness''s readiness to purchase--possibly for want of details. But if that be the learned Subordinate Judge''s meaning, he would seem to have approached the matter from the wrong point of view altogether.

The correct mode of approach was indicated long ago in Muhammad Husain v. Ajudhia Prasad (88) 10 All. 467 , and I should have thought it clear that the application for leave to sue as a pauper could not succeed unless the applicant showed that she was not possessed of sufficient means, in the sense that she could not, with her share in the inheritance from her husband, raise enough money to pay the court-fees. The learned Subordinate Judge''s observation about the applicant''s right being "at best a prospective right of possession in her husband''s inheritance" seems to be based on the view taken in Mabia Khatun Vs. Sheikh Satkari and Others, that the words "is not possessed of" in the explanation to Rule 1 must mean that the applicant has not actual control over it. But this was said about a debt, due from a third person, the learned Judges observing that whether the husband (from whom the debt, a prompt dower, was due) had sufficient means to pay it was another question. I doubt very much whether the learned Judges really intended to lay down any general rule as regards the possession of means, and I take it that they were not thinking of how far the ownership (without actual possession) of a share in landed property may import it.

In Ram Prasad Singh and Others Vs. Jagatamba Prasad Singh and Others, , a Division Bench of the Allahabad High Court declined to accept the contention that a minor''s share in joint family property cannot constitute means for raising money on, because it cannot be sold; and they held that the minor cannot be allowed to sue as a pauper unless it has, by any actual attempt, been found impossible for him to obtain funds on the share belonging to him--a share over which, it need hardly be added, he could have no actual control.

In Mithai Lal Vs. Jagan and Others , another Division Bench of the same High Court pointed out that the explanation to Rule 1 does not require that the plaintiff should not be possessed of sufficient property to enable him to pay the fee, so as to make it possible to argue that it must be established that he was in actual possession of some property which would yield the necessary amount. The words "possessed of sufficient means to enable him to pay the fee" merely meant, in their opinion, that the plaintiff is able to pay the fee. They held accordingly in words which clearly indicate their view as regards the possession of means that

to lay down that even where the plaintiff can easily obtain possession of ornaments and cash lying to his credit in Court, he is not possessed of sufficient means because he has not yet taken delivery of such ornaments and cash would, in our opinion, be contrary to the intention of the Legislature.

The proposition regarding actual control in Mabia Khatun Vs. Sheikh Satkari and Others, (if it is to be taken to lay down any general rule) was expressly dissented from in a Lahore case which was followed by a Division Bench of that Court in Piyare Lal v. Salib 158 I.C. 368 Lah.. It was ruled in this last ease that in order to succeed in his application for leave to sue as a pauper, the plaintiff must prove that he has not sufficient realizable property to be able to pay the court-fee stamp'' on the plaint and that he cannot succeed merely by proving that he has not sufficient hard cash for the purpose, "Possession of means" by a plaintiff who has a share in immovable property ''belonging'' to him and ''belonging'' is the word used in Rule 3, must, it seems to me, be distinguished from his possession and actual control over the share, and only refers to his ability in the concrete circumstances of the case to raise money on that property.

To ignore the applicant''s share in her husband''s property because she is not in possession of it, and to allow her to sue as a pauper, without considering whether she has shown that with that share she could not raise enough money to pay the court-fees, seems to me a materially irregular exercise of the jurisdiction conferred upon the lower Court by Order 33 and it was upon a similar ground that in Muhammad Husain v. Ajudhia Prasad (88) 10 All. 467 (already referred to) Mahmood J. held that an order of this kind is revisable. A mere conclusion on the evidence however, erroneous will afford no ground for interference in revision, but the present is one of those numerous oases (of which Mt. Chemela Kuer v. Purusottam Das AIR 1932 Pat. 308 is but one example) where the High Courts have interfered in revision--doubtless under Clause (e) of Section 115, Civil P.C.--because the question of pauperism was not properly approached.

The result is that this application must be allowed, the order under revision set aside and the lower Court directed to proceed in accordance with the law and pronounce on the applicant''s pauperism after considering whether it has been shown that with her share in her first husband''s assets she could not raise sufficient money to pay the courses. Mr. Rao has asked for a direction that the parties be at liberty to adduce further evidence in the dower Court. He bases his prayer on the fact that the ruling from Mabia Khatun Vs. Sheikh Satkari and Others, was misunderstood. This ruling does seem, in part at least, to have misled the lower Court, and I am not in a position to say whether there is enough evidence on the record as it is to enable the lower Court to pronounce on it. It will therefore be left to the discretion of the lower Court, considering all the circumstances, to allow or not to allow the parties to adduce further evidence.