Reuben, J.:— This is a petition in revision against an order of the Subordinate Judge, first court, Arrah, rejecting an application for permission to sue as a pauper.

The applicant petitioner is a minor aged about 8 or 9 years. He seeks to sue as the adopted son of defendant no. 1, to set aside a deed of gift executed by defendant no. 1 and his wife defendant no. 2 on the 31st January, 1943, in favour of their daughters, defendants nos. 3 to 5. There is a prayer for confirmation of possession, and in the alternative, for recovery of possession over the properties covered by the deed of gift. The application has been rejected on two grounds, firstly, that according to the allegations in the petitioner's proposed plaint, the petitioner is in possession, of the suit property, and the value of his share in it is considerably more than the court-fee payable on the plaint, and, secondly, that the petitioner's stepbrother and natural, father are helping him in the litigation, and are well able to pay the necessary sum.

The second ground given, by the Subordinate Judge for rejecting the application is clearly wrong and no attempt has been made before us to support it. The case is not covered by clause (e) of rule 5 of Order XXXIII of the Code of Civil Procedure, but the Subordinate Judge has relied upon Mahanth Jaikishun Dass… v. Ram Narain Das…Opposite Party. in support of the order passed by him. That was a case of an application for leave to appeal in forma pauperis, where there was a clear finding, by the court of first instance that the suit had really been promoted by certain persons who were using the plaintiff as a mere tool. Their Lordships held that the machinery of leave to sue or, to appeal in forma pauperis is not given for the purpose of promoting the interest of champertors and that one of the circumstances which should prevent the Court from granting permission is the fact, if brought to the notice of the Court, that the suit has been throughout and will, if the application is rejected, be financed by a person who is behind the scene. In the present case, all that the Subordinate Judge found is that in previous litigation in the Land Registration Department relating to this property, the petitioner was financed by his step-brother. Regarding the motives of the step-brother and the natural father in helping the petitioner, he says:

“Now the question is whether the applicant's step-brother and, natural father are helping him out of generous motives or with some object of self interest. Though it is difficult to state by which of the two motives the applicant's natural father and step-brother were actuated to help him in the land registration cases 27 in number, I am sure, these persons will not leave the applicant in mid stream even if the application be rejected.”

Clearly, on this finding, the case of Mahanth Jaikishun Dass… v. Ram Narain Das…Opposite Party. has no application.

I now come to the other ground upon which the Subordinate Judge has rested his order. The case is one within the first portion of the explanation to Order XXXIII, rule 1, Code of Civil Procedure, namely, that a person is a pauper when he is not possessed of sufficient means to enable him to pay the fee prescribed by law for the plaint in the suit. It is now Well settled that unlike the second portion of this explanation the first portion permits the subject-matter of the suit being taken into consideration in determining whether the applicant is a pauper. It does not follow, however, that the subject-matter of the suit must be taken into account in all such cases. Two serious objections to this course have been pointed out very lucidly, if I may say so with great respect, by Meredith, J. in Mt. Ramnandi Kuer v. Rup Narain Singh. Firstly, where the plaintiff's interest in the property is in dispute, the Court, in order to come to a finding as to its present value, would have first to determine the claim upon the merits, in other words, to try the suit. Secondly, the effect of allowing the value of the claim in all cases to be included in the petitioner's means would be, in practice, that no one having a bona fide claim could ever be allowed at all to sue in forma pauperis, since whatever the value of the subject-matter of the suit the court-fees must only be a small proportion of that value.

The case with which Meredith, J., was dealing was one of a suit on the foot of a simple mortgage bond, and his Lordship held that this was a mere chose-in-action the value of which the Court was not entitled to consider in determining whether the applicant was a pauper.

Several other cases were cited before us at the Bar. In Ram Prasad Singh v. Jagdamba Prasad Singh the applicants were minor sons suing to set aside an alienation by their father of joint family property. There was a share of the joint family property which was not affected by the transfer in question, and their Lordships held that the applicants' interest in this share was rightly considered in determining that they were not paupers. This was not a case in which the subject-matter of the suit was taken into account in determining the question.

In Provash Chandra Lahiri v. Municipal Commissioners of Howrah the applicant was a Sanitary Inspector under the Howrah Municipality, seeking permission to sue the Chairman and the Commissioners of the Howrah Municipality, claiming damages for wrongful dismissal. The defendants admitted liability to a portion of the claim on account of the: provident fund, and stated that the sum was available to the plaintiff at any time that he would ask for it. Their Lordships drew a distinction between the first and the second portion of the explanation to rule 1 of Order XXXIII that the former speaks of

“possession”

of sufficient means whereas the latter speaks of being

“entitled to”

property, and pointed out that in the case before them the petitioner was not in possession of the money. Secondly, they were of the opinion that, in considering the question of pauperism, the matter must be looked at as it stood at the date when the application was made, and that this money could not be taken into account because it became available to the petitioner only after the application in question had been filed. With great respect I am unable to agree with either of these grounds. 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 to enquire into is not actual possession of property, but capacity to raise the money necessary to pay the court-fee. I would agree with Sulaiman, C.J, and Hamilton, J., in Mithai Lal v. Jagan where, with reference to Bai Balagauri v. Moti Lal, they say: “The words used are not that the plaintiff should not be possessed of sufficient property to enable him to pay the fee. If such words had occurred, it might well have been argued that it must be established that the plaintiff was in actual physical possession of some property which would yield the necessary amount. But the words used are ‘possessed of sufficient means to enable him to pay the fee’, which in our opinion merely mean that he is able to pay the fee. 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 case of Balagauri, it may be noted, was a case in which the property in question was made available to the applicant after her application for permission to sue as a pauper had been filed.

In Bhagwat Sahay v. Krishna Sahay the applicant sought to institute a suit for the partition of joint family property worth about sixty thousand rupees, and the share of the applicant in that property was four annas. James, J. refused to interfere with the order of the Subordinate Judge taking the value of this share into account for rejecting the application. It does not appear from the record that the applicant's right to this share in the joint family property was disputed. Mithai Lal v. Jagan was a similar case.

In Mt. Jainatun Nissa Bibi v. Mt. Idrakun Nissa the applicant was a Muhammadan lady, and the opposite-party relied upon two items of property as justifying the rejection of her application. One of these items was the dower due to the applicant from her second husband. This was deferred dower and it was held by Dhavle, J. to have been rightly excluded from consideration. The other item was the lady's share in the inheritance from her first husband. This was left out of account by the Subordinate Judge on the view that, the applicant 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. His Lordship held that this was not the correct mode of approach, and that the applicant could not succeed unless she showed that she was not possessed of sufficient means. In other words, his Lordship did not regard actual possession of the property as essential; the question for enquiry being not the possession at property but the possession of sufficient means for the payment of the necessary court-fee, the Court has to apply its mind to the consideration of whether the applicant's right to the particular property is such as to enable him to raise money thereon. In this case, as in the previous two cases, it does not appear that there was any dispute regarding the applicant's right to the share of her husband's inheritance.

From a consideration of the above decisions it is clear that, in an inquiry of this kind falling within the first portion of the explanation to rule 1 of Order XXXIII, the subject-matter of the proposed suit may, in proper cases, be taken into consideration, but the inquiry should in all cases be directed to the ascertainment of the applicant's capacity to raise the necessary court-fee. In the present case, the Subordinate Judge, after mentioning the cases of Ramnandi Kuer and Bhagwat Sahay, deals with the question as follows:

“As there is a clear allegation in the application that the applicant is in joint possession over the properties mentioned in the application—a tact which has been affirmed by his step-brother, it is clear that the applicant is in possession over properties which can be converted into cash.”

He has taken the alleged possession of property to be equivalent to the possession of the means necessary for paying court-fee, and has thus missed the only question which arose for investigation in the case. In support of this he has cited the case of Mithai Lal, but that was a case where there was apparently no dispute about the applicant's right to a share in the property. On the contrary, in the present case, the applicant's right to a share in the property in suit depends upon the truth and otherwise of his statement that he is the adopted son of defendant no. 1, an allegation, which it is clear from the record, is denied by the defendants, and the taking of the, share into consideration is open to both of the objections noted by Meredith, J.

On the above grounds I am of the opinion that the Subordinate Judge has entirely misdirected himself and has acted with material irregularity by failing to investigate the only point which arose for decision in the case. I would, therefore, allow this petition, and set aside the order of the Subordinate Judge. The only item of property on which reliance is placed in opposing the pauper application is the share claimed by the petitioner in the suit property. On the grounds mentioned above, this property cannot be taken into consideration in deciding the question of pauperism. The pauper application must, therefore, be allowed. In the circumstances of the case, the parties should bear their own costs.

Imam, J.:— I agree.

Rule made absolute.

K.D