MOHAR RAUT Vs. SHEOLOCHAN SINGH

JUDGEMENT

(1.) This is an application on behalf of the plaintiff, who is a minor, against an order of the learned Subordinate Judge of Chapra, dated 18 February 1946, by which order the learned Subordinate Judge has rejected an application of the petitioner to sue in forma pauperis. The petitioner is a minor represented by his mother. The petitioner tiled an application to sue in forma pauperis for the purpose of setting aside certain alienations stated to have been made by his father.

(2.) The learned Subordinate Judge has expressed his finding as follows: It appears that the joint family of which the applicant is a member deals in buffalos and cows both at Chapra and Calcutta. The applicant is Ahir by caste. This is also a circumstance that supports the version of the opposite party. Besides the khatisn shows that the joint family owns? landed property. Thus taking all these facts and circumstances, I am of opinion that the applicant is in a position to pay court-fees.

(3.) It is contended before me that the learned Subordinate Judge has misdirected himself and acted with material irregularity in failing to investigate the real point which arose for decision. The mere fact that the joint family of which the petitioner was a member owned some property and dealt in cattle did not by itself: show that the petitioner was possessed of sufficient means to pay the court-fees. As has been observed in a recent decision of this Court in Dhananjai V/s. Rajkeshwar A.I.R. 1947 Pat. 34 the possession that is spoken of in the explanation to Rule 1 of Order 33, Civil P.C., is not possession of property but of sufficient means and what the Court is concerned to enquire into is not actual possession of property, but capacity to raise the money necessary to pay the court-fee. There are many other decisions to the same effect, and it is not necessary to refer to all the decisions which have been cited before me.