DULHIN SURAJ MUKHI DEVI Vs. JOKHU RAJ

JUDGEMENT

(1.) The three plaintiff-petitioners in this civil revision application are full sisters. They are daughters of Awadh Behari Singh, from his first wife. They filed a suit, in respect of some properties of their maternal-grand-father, and sought permission to sue in forma pauperis. The learned Subordinate Judge, by his order dated the 27th September, 1969, has rejected their application for permission to sue in forma pauperis. They have come up in revision.

(2.) It has not been found by the court below that the petitioners were possessed of any property or had means to pay the requisite court-fee on the date of their application, which was filed in the year 1968. What happened, however, at the time of the hearing of the application was that the petitioners' father Awadh Behari Singh was dead. He died a few days before the commencement of the hearing. According to the evidence. Awadh Behari Singh left a few bighas of land, in which the petitioners also would have some share. The learned Subordinate Judge did not go into the disputed question of the share of the petitioners in the land left by their father, but, on their admission, he came to take the view that all the three daughters would get at least 15 Kathas. And, since, according to the evidence of A.W. 4, a cousin of the petitioners, the value of the land would be between Rs. 2,000/- to Rs. 6,000/- per Bigha, the learned Subordinate Judge came to hold that on the date when he was making the order, "the applicants are certainly possessed of property which they have inherited from their father and by no stretch of imagination they can be called paupers."

(3.) I am of the view that the property to which the petitioners became entitled on the death of their father, at the time of the hearing of the pauper application, could be taken into consideration. To that extent the learned Subordinate Judge is right. But, he has committed a sad mistake of another kind and that makes his order an order in which there is obviously an error of jurisdiction. It has been repeatedly pointed out that when the case comes under the first part of the explanation appended to Rule 1 of Order XXXIII of the Code of Civil Procedure then what is necessary to find out is whether the applicant is possessed of sufficient means to enable him to pay the fee prescribed by law for the plaint, and, not whether he is possessed of sufficient property. On the surface of the evidence of A.W. 4, the learned Subordinate Judge took the view that the value of the property, which must be deemed to be in possession of the applicants on the date when the application for permission to sue in forma pauperis was being disposed of, could not be less than Rs. 1,500/-. The court-fee payable in this case was of an amount less than that. But, in my opinion, the learned Subordinate Judge has missed the other piece of evidence of A.W. 4 in this connection.