RAO SAHEB MANAJI RAJUJI KALEWAR Vs. KHANDOO BALOO

JUDGEMENT

(1.) Maloobai, widow of Rajanna Mahadavji, originally petitioned to this Court to be allowed to institute this suit in forma pauperis against Khandoo Baloo, the present defendant, praying for certain reliefs in connection with a document which she alleged the defendant had fraudulently got her to execute. She was granted leave to sue in forma pauperis and her petition became a suit. In that suit she claimed that the defendant may be ordered to deliver up to be cancelled a certain deed of gift which she alleged he had obtained fraudulently from her and she prayed that the title-deeds of her property may be ordered to be returned to her.

(2.) Pending the hearing of the suit she died, but she was a woman who was either herself very astute or was in very astute hands, and before her death she made a will whereby she appointed Rao Saheb Manaji Rajuji Kalewar the executor thereof and she disposed of the property which she was claiming in the suit in certain ways in that will. The defendant was one of her nephews. She had three other nephews, and I am told that the will is in favour of the other three nephews. Rao Saheb Manaji Rajuji, on the 16th of June 1910, made an affidavit setting out the circumstances under which he became executor of Maloobai s will and he prayed that this Honourable Court may be pleased to allow his name to be brought on the record as plaintiff in place of the deceased Maloobai and that he may also be allowed to continue the suit in forma pauperis. On the 17th of June 1910, an order was made by the Prothonotary, which, amongst other things, directed that the said Rao Saheb Manaji Rajuji Kalewar be at liberty to continue this suit in forma pauperis.

(3.) The suit came on for hearing before me on the 1st of April 1911. Mr. Talyarkhan, for the defendant, asked me to try as a preliminary issue the following question, namely, whether the plaintiff can maintain or continue this suit in forma pauperis. The order of the Prothonotary of the 17th of June 1910 seems to me to be very unusual. At all events that is the first time I came across an instance where a well-to-do and a titled citizen of Bombay was allowed to continue a suit as a pauper and I allowed the arguments on that issue to stand adjourned and directed the Prothonotary to give notice to the Government solicitor and inform him that the Court would hear counsel on behalf of Government, if they wished to be heard. I have no doubt the Prothonotary in making the order was influenced by certain arguments, such as Mr. Vakil has addressed to the Court on the argument of this question at present. But it seems to me a most anomalous thing to permit the present plaintiff to continue the suit against the defendant as a pauper. All the provisions of Order XXXIII of the Civil Procedure Code seem to negative the idea of anybody but an actual pauper, a real pauper, a man without means, being permitted to maintain or defend a suit in forma pauperis. Mr. Vakil admits that if his client had come before the Court and asked to institute this suit in forma pauperis, the application would necessarily have to be refused. But he contends that permission once being given to Maloobai, her