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Smart Summary

Structured Summary of the Opinion (Revision against order allowing pauper suit)

Factual and Procedural Background

This matter is an application in revision against an order of the Subordinate Judge of Cuttack which had allowed an application for permission to sue in forma pauperis. The application to sue as a pauper was opposed not by the Government Pleader but by the petitioners, who would be defendants in the pauper suit.

The opposition relied on several grounds, notably that the schedule of property annexed to the pauper application (as required by Rule 2 of Order 33) omitted two items: (1) the dower due to the applicant from her second husband, and (2) the applicant’s share in immovable properties inherited from her first (deceased) husband. Another ground of opposition was that the applicant was not a pauper within the meaning of the explanation to Rule 1 of Order 33.

The Subordinate Judge had allowed the pauper application. On revision, the High Court examined whether the lower Judge had exercised his discretion with material irregularity, particularly in omitting consideration of the applicant’s share in her deceased first husband’s assets when assessing whether she was "possessed of sufficient means" to pay the prescribed court-fee.

Legal Issues Presented

  1. Whether the omission of two items from the schedule of property annexed to the pauper application (the dower from the second husband and the share in immovable property from the first husband) was fatal to the application under Rule 2 of Order 33, or whether omissions are fatal only if made mala fide.
  2. Whether the Subordinate Judge committed a material irregularity by ignoring the applicant's share in the inheritance from her first husband when determining whether she was "possessed of sufficient means" under the explanation to Rule 1 of Order 33.
  3. Whether the lower Court was correct to treat the applicant’s prospective or non-actual possession of her share in the inheritance as meaning she was not possessed of sufficient means to pay court-fees.

Arguments of the Parties

Petitioners' (opponents') arguments

  • The application omitted two items required by Rule 2: the dower due from the applicant's second husband, and the applicant’s share in immovable property inherited from her first husband; this omission supported opposing the pauper application.
  • The applicant was not a pauper within the meaning of the explanation to Rule 1, i.e., she was possessed of sufficient means to pay court-fees.
  • Implicitly, the petitioners contended that the learned Subordinate Judge exercised his discretion with material irregularity in the manner he dealt with these issues.

Applicant's (moving party) points as recorded in the opinion

  • The applicant asserted she had been turned out of her husband's house and that papers relating to her husband's property had been snatched away, making it difficult for her to give a precise and accurate account of the properties left by her deceased husband.
  • Before the High Court, Mr. Rao (for the applicant) argued that a remark of the Subordinate Judge about a witness's "readiness to be a prospective purchaser" had been misinterpreted by the lower Court, and sought a direction allowing the parties to adduce further evidence in the lower Court.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
11 PLT 567 Supports the objection that omission from the schedule (Rule 2) may be fatal to the pauper application. The Subordinate Judge referred to it as supporting the objection about omission; the High Court noted the decision but observed that omissions need not necessarily be fatal unless mala fide (drawing on subsequent authority).
13 PLT 538 Held that omissions from the schedule required by Rule 2 need not by themselves be fatal unless they are mala fide. The High Court relied on this decision (Kulwant Sahay, J.) to justify that omissions are not automatically fatal and that the question of pauperism must be dealt with on the merits.
45 CLJ 68 Addressed the meaning of "possessed of" in the explanation to Rule 1, suggesting emphasis on actual control (the opinion cites this as taking a particular approach to the test of pauperism). The Subordinate Judge relied on (or was influenced by) this authority in treating the applicant's rights as "prospective" and not amounting to possession; the High Court observed that this ruling may have been misunderstood or not intended as a general rule regarding ownership without actual possession.
AIR 1933 Mad 883 Referred to alongside 45 CLJ 68 in relation to the test of pauperism (concrete ability to raise funds). The High Court noted this authority as part of authorities the Subordinate Judge relied upon when addressing whether the applicant could raise money in the concrete circumstances.
AIR 1929 Nag 319 Distinction between being "entitled to property" and being "possessed of" sufficient means (phrases appearing in the explanation to Rule 1). The High Court referred to this distinction as cited by the Subordinate Judge when discussing entitlement versus possession/control in assessing pauperism.
10 ALL 467 Indicated the correct approach: an applicant cannot succeed unless she shows she is not possessed of sufficient means — meaning she cannot, with her share, raise enough to pay court-fees. The High Court treated this as a longstanding correct mode of approach and relied on it to hold that the lower Court should have considered whether the applicant could raise sufficient money on her share.
AIR 1925 All 547 Held that a minor's share in joint family property can constitute means; the minor cannot be allowed to sue as a pauper unless it is shown by actual attempt that funds could not be obtained on the share. The High Court cited this Division Bench decision to support the proposition that lack of actual control does not automatically mean absence of realizable means.
AIR 1937 All 740 Held that the explanation to Rule 1 does not require actual possession; "possessed of sufficient means" means simply able to pay the fee. The High Court relied on this authority to counter the view that actual control or possession is required before deeming a person to be possessed of sufficient means.
158 IC 368 Differed from the proposition that actual control is required; held that the plaintiff must prove not having sufficient realizable property and that absence of hard cash alone is insufficient. The High Court cited this case (and the Lahore dissension) to support the position that "possession of means" should be assessed by the ability to raise money on the property, not by the presence of actual control.

Court's Reasoning and Analysis

The High Court proceeded through a focused, stepwise analysis:

  1. It first reviewed the Subordinate Judge's factual findings: (a) that the dower due from the applicant’s second husband was entirely deferred (a finding grounded on one-sided evidence which the High Court considered not open to interference in revision), and (b) that the applicant was not in actual possession of the inheritance from her first husband.
  2. The Court observed that the learned Subordinate Judge had referred to authority (11 PLT 567) supporting the petitioners’ objection about omissions from the schedule, but had taken the view that the object of the rule was to assist the Government in ascertaining whether the applicant could pay the court-fee, and that failure to annex the schedule was of no consequence to the opposite party where the applicant was admittedly not in possession.
  3. The High Court addressed the legal principle whether omission from the schedule (Rule 2) is fatal. It accepted the position in 13 PLT 538 (Kulwant Sahay, J.) that omissions need not be fatal unless mala fide, and therefore concluded the lower Court still needed to decide pauperism on its merits rather than dismissing for omission alone.
  4. The central analytical point was whether the Subordinate Judge materially erred by neglecting to consider the applicant’s share in her deceased husband's assets when assessing her means. The High Court concluded that the Subordinate Judge had relied unduly on a notion that the applicant's rights were merely "prospective" and thus could not amount to possession of sufficient means. The High Court reviewed a line of authoritative decisions that clarified the test of pauperism:
    • Authorities (10 ALL 467; AIR 1925 All 547; AIR 1937 All 740; 158 IC 368) were cited to show that "possession of means" should be understood in terms of the ability to raise money in the concrete circumstances, and does not necessarily require actual physical control of the property.
    • The High Court pointed out that the view that actual control is required (as read from 45 CLJ 68) was not intended as a general rule as regards ownership without actual possession and had been dissented from in later decisions.
  5. Applying this legal framework, the High Court determined that ignoring the applicant’s share in the inheritance because she lacked actual possession — without considering whether, in the concrete circumstances, she could raise sufficient money on that share — amounted to a materially irregular exercise of jurisdiction under Order 33.
  6. The Court therefore held that the High Court should set aside the order under revision and remit the matter to the Subordinate Judge to decide pauperism properly on the merits, including consideration of whether the applicant could raise the required court-fees from her share, and to exercise discretion about admitting further evidence.

The High Court declined to disturb the lower Court's finding that the dower was deferred, noting that it was based on one-sided evidence and not open to interference in revision.

Holding and Implications

Core Ruling: Application allowed; the order under revision is set aside.

Direct consequences for the parties:

  • The case is remitted to the Subordinate Judge of Cuttack with directions to proceed in accordance with the law and to pronounce on the applicant's pauperism after expressly considering whether, with her share in her first husband's assets, she could raise sufficient money to pay the court-fees.
  • The Subordinate Judge has discretion to permit further evidence to be adduced by the parties in the lower Court, having regard to the circumstances (the High Court did not itself order further evidence but left that to the lower Court's discretion).
  • The High Court did not interfere with the finding that the dower from the second husband was deferred, treating that finding as binding on revision because it was based on one-sided evidence.

Broader implications: The opinion confines itself to correcting the lower Court's approach to the specific assessment of pauperism here; it instructs adherence to established authorities that "possession of means" should be assessed by the ability to realize funds in the concrete circumstances rather than by requiring actual physical control. The opinion remands for proper application of that principle but does not purport to lay down a novel general rule beyond the application to these facts.

K.S/R.K

Disposition: Application allowed.

Show full summary ...

    Mt. Jainatun Nissa Bibi And Another v. Mt. Idrakun Nissa Opposite Party.

    1. 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 R. 2 of O. 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 R. 1 of the order. As to the first of these grounds the learned Subordinate Judge referred to 11 PLT 567,1 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 R. 2 was attached to the application or not, particularly when at least the admitted case is that the applicant is not in possession of any portion of the inheritance left by her deceased husband.

    2. 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) 15 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.

    3. 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.

    4. 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 R. 5(a) of O. 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 R. 2, I am inclined to agree with Kulwant Sahay, J. who in 13 PLT 5382 considered the decision in 11 PLT 567 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 to 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 defer, red is based on one-sided evidence and can not be interfered with in revision.

    5. The learned Subordinate Judge referred to 45 CLJ 683 and AIR 1933 Mad 883,4 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 Nag 319,5 between being ‘entitled to property’ (the expression used in the latter part of the explanation to R. 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 Sub-ordinate Judge meant 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.

    6. The correct mode of approach was indicated long ago in 10 ALL 467,6 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 45 CLJ 68 that the words “is not possessed of” in the explanation to R. 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.

    7. In AIR 1925 ALL 547,7 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 AIR 1937 ALL 740,8 another Division Bench of the same High Court pointed out that the explanation to R. 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 helot 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.

    8. The proposition regarding actual control in 45 CLJ 3 68 (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 158 IC 368.9 It was ruled in this last case 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’ 15 the word used in R. 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 O. 33 and it was upon a similar ground that in 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 cases (of which 13 PLT 538 is but one example) where the High Courts have interfered in revision — doubtless under clause (c) of Section 115 of the CPC because the question of pauperism was not properly approached.

    9. The result is that this application must be allowed, the order under revision safe 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 court-fees. Mr. Rao has asked for a direction that the parties be at liberty to adduce further evidence in thedower Court. He bases his prayer on the fact that the ruling from 45 CLJ 68 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.

    K.S/R.K

    10. Application allowed.

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    Comments

    Mt. Jainatun Nissa Bibi And Another v. Mt. Idrakun Nissa Opposite Party.
    (Feb 14, 1941)