CHIMANLAL BHOGILAL PANCHANI Vs. CHANDANBEN MANCHAND SHAH

JUDGEMENT

(1.) This revision petition raises an interesting question as to whether a trustee who has got no trust property in his hands could sue as a pauper on behalf of the trust even if he is possessed of sufficient means in his individual capacity.

(2.) One Mohanlal Nihalchand the deceased had made a will on 16 March 1949 by which he had given the life interest to one Chanchalben and after her death the estate was to go over to the various trusts. Chanchalben died on 8th September 1958. There were three executors of the said will one of whom was Laherchand who expired on 22nd April 1958 Therefore the present two executors have filed a suit in forma pauperis as plaintiffs Nos. 1 and 2 as the trustees under the will against the main defendants 1 and 2. Defendant No. 1 is the testators sisters daughter and defendant No. 2 is her husband. The suit is for recovery of the properties of the trust in possession of the opponents worth about Rs. 36 0 Opponents Nos. 1 and 2 and other opponents and the Government having taken up a preliminary objection as to the maintainability of this application the learned Civil Judge had come to the conclusion that such trustees who were admittedly not paupers having got sufficient means in their individual capacity for payment of the court fees they could not sue as paupers on behalf of the trust. He also came to the conclusion that plaintiff No. 2 was not present at the time of the presentation of the application and therefore the application was not properly presented as required under Rule 2 of 0.33 of the Civil Procedure Code hereinafter referred to as the Code. Accordingly he has rejected the application of the trustees and has directed them to pay the requisite court fees on the suit. The said trustees have therefore filed the present revision application.

(3.) Order 33 of the Code prescribes the procedure for institution of a suit by a pauper. Rule 1 provides that subject to the following provisions any suit may be instituted by a pauper. The explanation provides 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 such suit or where no such fee is prescribed when he is not entitled to property worth one hundred rupees other than his necessary wearing apparel and the subject matter of the suit. Rule 2 provides that every application for permission to sue as a pauper shall contain the particulars required in regard to plaints in suits and Rule 3 sets out the mode of presentation of the application and it provides that the application shall be presented to the Court by the applicant in person unless he is exempted from appearing in Court in which case the application may be presented by an authorized agent who can answer all material questions relating to the application and who may be examined in the same manner as the party represented by him might have been examined had such party attended in person. Rule 4 provides for the examination of the applicant or his agent as aforesaid regarding the merits of the claim and the property of the applicant. Rule 5 directs the Court to reject the application if any of the prohibitions mentioned in clauses (a) to (e) exists. Thus Order 33 prescribes the method for institution of a suit by a pauper without payment of the institution fees as prescribed in the Court Fees Act. It is a provision intended to facilitate the institution of suits so that justice is not denied to any person merely because he has no means to pay even the institution fees. Some other provisions of the Code may also be noted at the outset. Order 7 Rule 4 provides that where the plaintiff sues in a representative character the plaintiff shall show not only that he has an actual existing interest in the subject matter but that he has taken steps necessary to enable him to institute a suit concerning it. Order 2 Rule 5 also provides that no claim by or against an executor administrator or heir shall be joined with claims by or against him personally unless the last mentioned claims are alleged to arise with reference to the estate in respect of which the plaintiff or defendant sues or is sued as executor administrator or heir or are such as he was entitled to or liable for jointly with the deceased person whom he represents. These provisions in the Code clearly indicate as rightly observed by Shrinivasa Aiyangar J. in Sivagami Ammal and another v. T. 5. Gopalaswami Odayar and others A. I. R. 1925 Mad. 765 that the person contemplated even by the law of procedure is the juridical person. It would be possible for an individual human being to his possessing a number of juridical personalities by reason of his possessing separate juridical capacities. Salmond on Jurisprudence Eighth edition at pages 325-335 observes that persons are the substances of which rights and duties are the attributes. A natural person is capable of having a double personality. A trustee is for many purposes two persons in the eye of law. In the right of the beneficiary he is one person and in his own right he is another. That is a natural person could have different personalities according to the character of his rights and duties. The provision in the Code for minors and lunatics would also show that such persons being under disabilities the acts required under the Code to be performed on their behalf are to be done not by them in person but through others. Order 31 similarly provides for representation of beneficiaries in suits concerning property vested in trustees. In all suits concerning property vested in a trustee executor or administrator where the contention is between the person beneficially interested in such property and a third person the trustee executor or administrator shall represent the persons so interested and it shall not ordinarily be necessary to make them parties to the suit. Thus a suit in a representative capacity is well known to the Code. Even under the General Clauses Act 1897 under section 3(39) unless there is something repugnant to the subject or context the word person would include any company association or a body of individuals whether incorporated or not. We must therefore consider what is the meaning of the word person intended in the explanation to Rule 1 of Order 33 whether it means only the natural person or also embraces a juridical or artificial person.