The main legal point established in the judgment is that the omission to disclose an asset in the schedule for suing in forma pauperis must be deliberate and mala fide to warrant dismissal of the application. Additionally, the means of the petitioner to pay the court fee must be considered by the Court.

1. The Subordinate Judge of Kasaragod dismissed the application filed by the petitioner for leave to continue the suit in forma pan-peris which he originally filed paying court fee. A few facts may be stated.

2. The petitioner is one of three brothers constituting a joint family with the mother also alive. He filed a suit for partition and separate possession of his share paying the requisite court fee of Rs. 2,000/-. The plaint was filed on 22nd August 1958; and the defendants, who are the brothers and the mother filed their written statement on 23rd October 1958, wherein they alleged that there were several other items, which should also have been included in the plaint. Thereupon the petitioner included those items as well in the plaint and he had then to pay a further court fee of over Rs. 4,000/-. At that stage, he filed the application for leave to continue the suit in forma pauperis and this was dismissed by the lower Court.

3. It has come out in evidence that the plaintiff had a deposit of over Rs. 5,000/- in the Canara Bank Ltd. at the time of filing the suit. He appears to have withdrawn amounts therefrom for paying the court fee. Subsequent to the filing of the suit, he appears to have withdrawn further amounts also from the Bank on 6th September 1958. It may be noted in this connection that the written statement containing the allegation, that there were other items as well to be partitioned, came in only subsequent to that withdrawal, i. e., the written statement was filed only on 23rd October 1958. Therefore, it cannot be said that when he withdrew the amount on 6th September, 1958, he had any mala fides or any fraudulent intent. His case is that he spent the amount in connection with the case.

4. The learned Subordinate Judge has relied mainly on the decision in Chellammal v. Muthulakshmi Ammal (AIR. 1945 Madras 296) for dismissing the petition and he has quoted the following passage therefrom:

"Under O.33 R.2 read with O.33, R.5 (a) and O.44, R.1 it is the bounden duty of the petitioner applying for leave to sue or appeal as a pauper to make a full and accurate verified statement of his or her properties. The utmost good faith is required of the petitioner in the matter of the disclosure of his or her assets and any intentional departure from good faith, whatever the motive may be, must result in the dismissal of the petition."

This passage, relied on by the learned Subordinate Judge, itself indicates that the departare from good faith must be intentional. Moreover, this decision has been subsequently considered by the same Court in other decisions. One of them is D. Ramakrishna Chetti v. Govindammal (1954 (1) M. L. J. 26), wherein Venkatarama Ayyar, J., has considered the aforesaid decision & has observed that a person who applies for leave to institute a suit or file an appeal in forma pauperis must act with the utmost good faith and if it turns out that there was an intentional non-disclosure of assets belonging to the petitioner, that would be a ground for dismissing the petition; but when the petitioner omitted to disclose in his application his provident fund under the impression that it did not belong to him, his conduct could not be said to be wanting in bona fides. In the next case, Murugan v. Sivaraman (1955 (2) MLJ. 638), Rajamannar, G J. has again considered Chellammal v. Muthulakshmi Ammal and also the later decision of Venkatarama Ayyar J. in D. Ramakrishna Chetty v. Govindammal. The learned Chief Justice has observed that it is not correct to say that an omission to mention even the most insignificant items of movable properties must by itself lead to a dismissal of an application for leave to sue in forma pauper is under 0.33, Civil Procedure Code; and the rule as to dismissal of such an application on the ground of suppression of assets must be confined to cases where the suppression is deliberate and not bona fide. The learned Chief Justice has also observed that to find out whether an