KUNJA BEHARI Vs. MOHIT SINGH

JUDGEMENT

(1.) This is an application on behalf of the defendants against the order of the Munsif of Dhanbad, dated 14 November 1933, allowing the plaintiffs in a suit to sue in forma pauperis. The plaintiffs as shebaits sued for recovery of possession of certain debuttar properties which were acquired by the defendants. Along with that prayer there was the prayer for realizing a sum of Rs. 100 which the plaintiffs had given to the defendants as a result of certain contractual negotiations. The learned Munsif after examining the plaintiffs sent out notices as a result of which the report which is to be found on the records of the case was made by a Sub- Deputy Collector. The Sub-Deputy Collector was not examined but unfortunately the learned Munsif has relied upon that report which is no evidence at all for the purpose of coming to his conclusions on the matter before him. That is the initial difficulty but that report is also mixed up with parts of his order on this particular question whether the plaintiffs should be allowed to sue in forma pauperis or not.

(2.) It is difficult to ignore the confusion that has arisen on account of his having taken the report as evidence. There was some discussion before the Court below as to whether non-joinder of the idol was a fatal defect or not. The Court has come to the conclusion that when the shebaits were suing in their representative capacity, it was not necessary to have the idol as a party. I entirely agree with this conclusion of the learned Munsif; but then the question that arises is--with whose properties are we concerned? Are we to look to the property of the shebaits or the property of the idol? From the order it is not clear whether he has gone into the matter with a view to find out if the idol had any property standing in his name. Being she baits the plaintiffs may not be liable to pay court-fee out of funds which do not belong to the trust property; but the question is whether or not the trust property which vested in the idol was or was not sufficient to pay the court-fee.

(3.) The next point that has to be considered is that in the suit, rightly or wrongly, the shebaits claimed a sum of Rs. 100. It is not clear from the order of the learned Munsif whether they were claiming it in their personal capacity or as shebaits. If they were claiming the amount in their personal capacity, then the observation of the learned Munsif that it has not been suggested by the defendants that they have any trust property in their hands loses much of its weight, because then we are concerned not with the trust property, but with the property which the plaintiffs possess and on that point the only evidence against their being paupers was their own statement and the report which I have held to be no evidence in the eye of the law. I would therefore set aside the order of the learned Munsif dated 4 November 1933, and send back the case to be disposed of according to law in the light of the observations which I have made above. There will be no order as to costs.