EBRAHIM SHERKHAN PATHAN Vs. HAJRATKHAN MOHIDDINKHAN

JUDGEMENT

(1.) THIS is a Letters Patent appeal from a decision of Mr. Justice Divatia. The facts material for the purpose of this appeal are briefly these: The appellant was defendant No.5 in a suit of 1924 which was instituted by one Abdul Aziz to recover possession by partition of his share in the assets of a partnership business which he maintained was a business in which one of the partners was his deceased father through whom he claimed. It was alleged that the partnership had already been dissolved and that its entire assets had come into the hands of defendant No.1 in the suit, namely, Haji Hajaratkhan. The trial Court dismissed the claim on various grounds, particularly on the ground that the plaintiff's father was not interested in the partnership business. An appeal was taken to this Court by the plaintiff Abdul Aziz against that order. But after the appeal was filed Abdul Aziz applied for withdrawing from the appeal. Before that application was granted one Manjrekar, claiming to be an assignee under an agreement dated September 10, 1931, from the said Abdul Aziz and the respondent defendant No.5, of a specific share in the subject-matter of the suit, applied for permission to continue the appeal. That permission was granted, and Manjrekar was brought on the record as an appellant in addition to Abdul Aziz. The latter's application for withdrawal was thereafter allowed. After some time Manjrekar himself applied for withdrawal from the appeal. If that withdrawal were permitted there would be no person competent to prosecute it. Consequently defendant No.5, Ebrahim Sherkhan, Manjrekar's other assignor who is now the appellant, applied for permission to be transposed as appellant. That permission was granted, and upon his application for permission to prosecute the appeal in forma pauperis an inquiry was ordered through the Court below as to his pauperism. The trial Court reported that the appellant was a pauper; and when that report was being considered in this Court, upon objection taken by defendant No.1 respondent that, in view of the assignment of the appellant's interest in the subject-matter of the appeal, the application for permission to appeal in forma pauperis was not competent under Order XXXIII, Rule 5 (e), of the Civil Procedure Code, Mr. Justice Divatia refused leave to appeal as a pauper. The appellant was given two months' time to pay the requisite Court fees. Against that order defendant No.5 has now filed this Letters Patent appeal.

(2.) THE principal contention of the appellant is that the objection of the opponent respondent No.1 could not be sustained inasmuch as the prohibition under Order XXXIII, Rule 5 (e), of the Civil Procedure Code, applies to a subsisting agreement and the assignment in question could not be regarded as subsisting at the date of the application owing to the conduct of the assignee in the appeal and that at any rate the assignment did not affect the claim in the appeal. That is not a pure question of law and involves ascertainment of facts. It is material to observe that the question was not raised in that form before Divatia J.

(3.) IT seems to me that the subject-matter in a suit or appeal, in which a share is claimed on partition in the assets of a partnership business carried on by the deceased ancestor of an appellant and his other partners, would consist of the entire assets of the partnership in which an aliquot share is claimed for until partition his interest is inchoate and unascertained. A party claiming such interest is unable to predicate with certainty the identical property either immoveable or moveable that would be allotted to him upon the eventual determination of his interest in the common property. The subject-matter of the appeal, in my opinion, is one thing and the value of a party's claim in that subject-matter is entirely another thing, and that claim cannot be regarded as the subject-matter of the suit merely because ha is liable to pay an ad valorem duty assessed on the market value of the claim. I am, therefore, of the opinion that if by agreement the appellant has assigned his interest or part thereof in the entire assets to a third party to finance the litigation at any stage of the proceedings or even before the suit, his act comes within the ambit of the rule, and he cannot claim exemption on the ground that he has reduced his claim to the unassigned share in the property.