MT. JANKIBAI Vs. MT. BHIKAI

JUDGEMENT

(1.) 1. This is an application for revision of the order of the Additional District Judge, Nimar, substituting the non-applicant Mt. Bhikai as the plaintiff in Civil Suit No. 1 of 1930 in place of her deceased husband Kaluram. Kaluram had obtained leave to sue in forma pauperis and his widow Bhikai made an application on 21st June 1902 through the pleader Mr. Hifazat Ali, who had previously represented Kaluram, to be substituted in place of her deceased husband as plaintiff in the suit. The application was opposed and two preliminary issues were framed as follows : " (1) Whether the right to sue as a pauper is a personal right and does not survive the deceased's death, (2) If so, whether the applicant can be brought on the record."

(2.) ON these issues the Additional District Judge found that a legal representative of a deceased pauper plaintiff can continue a suit and that therefore the widow Bhikai was entitled to be substituted in place of her deceased husband Kaluram. It is clear, I think, that the Additional District Judge has missed what is really the important point in the case, namely, whether a legal representative of a deceased pauper plaintiff can be substituted and continue the suit as a pauper, if he himself is not a pauper. That a legal representative can be substituted in place of a deceased pauper plaintiff has been held in several decisions and there is no decision, as far as I know, to the contrary. I would refer to the cases in Manaji Rajuji v. Khandoo Baloo (1912) 36 Bom 279, In re Bill (1884) 7 Mad 390 and Sivagami Ammal v. Gopalaswami Odayar AIR 1925 Mad 765. The question however is whether a legal representative can continue the suit as a pauper, if he is not him-self a pauper. This question was not considered in the earlier Madras case, In re Bill (1884) 7 Mad 390, because it was admitted that the executrix Mrs. Bill was herself a pauper. In the Bombay case Davar, J., has clearly held that a legal representative of a pauper plaintiff, who is not himself a pauper, cannot be allowed to continue the suit as a pauper, though he may be allowed to be substituted as the legal representative of the deceased pauper plaintiff and continue the suit upon payment of court-fees. This case has been dissented from by Srinivasa Aiyangar, J., in Sivagami Ammal v. Gopalaswami Odayar AIR 1925 Mad 765, and that learned Judge has held that a legal representative can continue the suit of a deceased pauper plaintiff as a pauper, even though he himself is not a pauper. With all due respect, I am unable to agree with the view expressed by the learned Judge and I am of opinion that his reasoning at p. 394, that the fact that leave to sue in forma pauperis is a personal right is no reason for holding that the legal personal representative loses that right, is, I think, unsound. I agree that leave to sue in forma pauperis is a personal right, and this has been held in the case cited by the learned Judge. Mohammad Zaki v. Municipal Board, Mainpuri AIR 1918 All 177 and has also been held in Lalit Mohan v. Satish Chandra (1906) 33 Cal 1163 and in Kaveri Sulbiah v. Sundara Bovamma AIR 1928 Mad 278. Both these latter cases have been cited by the Additional District Judge, but he has, I think, misunderstood them. It is true that both the cases were concerned with applications for leave to sue in forma pauperis in which the appellant had died before leave had been granted, and the legal representative was applying to continue the application and not the suit, as the application had not yet been registered as a suit. At the same time, the principle that the application or the leave to sue is a personal right is the same in both cases.

(3.) I therefore set aside the order of the Additional District Judge and, while holding that the non-applicant Bhikai can be substituted as a plaintiff in place of her deceased husband Kaluram, direct that a fresh inquiry be made with regard to her being a pauper. If she is found to be a pauper, she can maintain the suit as a pauper, if, on the other hand, it is found that she is not a pauper, she can only maintain the suit upon payment of court-fees. Costs of this application will be borne by the non-applicant Bhikai. I fix pleader's fees at Rs. 25.