Ramaswami, J.:— This rule is directed against an order of the Subordinate Judge of Patna refusing to permit the applicant to sue in forma pauperis.
2. The applicant brought a suit against the opposite party claiming a sum of Rs. 13,000 odd being her dower debt against the estate of her deceased husband. The court-fee payable was Rs. 1,200 odd. The applicant alleged that she was not possessed of sufficient means to pay the court-fee. For the opposite party a survey khatian (Ex. A) was filed to show that about 3 bighas of raiyati land stood recorded in the name of Tasaduk Hussain in khafcas 411 and 654 in village Kolawan. It is conceded that Tasaduk Hussain died leaving behind a son and two daughters, one of whom is the applicant. It was alleged that Tasaduk Hussain has a house, area. 27 acre, Plot No. 2186 of Khata No. 411. For the applicant it was stated that the properties were included in a wakfnama executed by Iltaf Hussain who was the real owner thereof. It was objected also that the survey entry was incorrect. The learned Subordinate Judge held upon evidence that the applicant had 1/4th share in the raiyati land of khatas 411 and 654 and also a share of the house over Plot No. 2186, Khata No. 411. But it is unfortunate that he has not examined the evidence as regards value of the share of the applicant nor has he given a finding thereon. In the absence of such evidence it is impossible to hold that the learned Subordinate Judge properly exercised his jurisdiction in holding that the applicant should not be permitted to sue in forma pauperis.
3. Reference should be made to Dhananjai Pd. Singh v. Rajkeshwar Singh, A.I.R (34) 1947 Pat. 34 : (25 Pat. 318) in which it was said that in an enquiry under O. 33, R. 1 the Court should always address itself to the ascertainment of the applicant's capacity to raise the necessary court-fee. The possession that is spoken of in the first portion of the explanation is not possession of property but “of sufficient means,” and what the Court is concerned of enquire in to is not actual possession of property, but capacity to raise the money necessary to pay the Court-fee.
4. In Ramanuja Ayyangar v. Gopalan, A.I.R (21) 1934 Mad. 561 : (152 I.C 938), Ramesam J. observed that the question whether the plaintiff is a pauper or not turns upon the circumstances of each case. The test is not whether he has the power of raising money in the abstract, but whether in the concrete circumstances of the case he can succeed in raising anything substantial by exercising it. There is an observation to similar effect in Sundarathammal v. Parmaswami Asari, A.I.R (20) 1933 Mad. 883 : (146 I.C 566).
5. For these reasons I would set aside the order of the learned Subordinate Judge and remand the case for being reheard. It will be open to the parties to adduce fresh evidence if they so choose.
6. After taking such further evidence, if any, the learned Subordinate Judge should decide afresh whether the applicant has sufficient means to enable him to pay the court-fee within the meaning of O. 33, R. 1 of the CPC.
7. The application is accordingly allowed, but, in the circumstances, I do not propose to make any order as to costs.
8. Narayan, J.:— I agree.
D.H
9. Application allowed.