The possession of financial resources, not the extent of property owned, is the material criteria for judging whether a person is an indigent person.

1. This revision is directed against the judgment passed by the District Judge, Mandi, Kullu and Lahaul-Spiti District at Mandi in Civil Misc. Appeal Nos. 41 of 1995/2 of 1993, dated 18-9-1996. By means of impugned judgment, deceased Smt. Kasturu was held to be an indigent person and after her death, her legal representatives (present respondents 1 and 2) were also held to be indigent persons and consequently leave to file the suit in their capacity as such, was granted.

2. Brief facts giving rise to this case are that initially an application under Order 33, CPC was filed by Smt. Kasturu as an indigent person seeking leave of the Court to institute the suit as such. This matter came up before the trial Court who vide its judgment date 18-6-1990 held that Smt. Kasturu is not an indigent peron as such her prayer was declined. This order of the trial Court was questioned by Smt. Kasturu in an appeal, and by means of judgment, the appeal was allowed and the case was remanded back to the trial Court for decision afresh. Again vide its judgment dated 27-11-1992 trial Court rejected the claim of Smt. Kasturu and dismissed the application filed by her. Being dissatisfied with the said judgment of the trial Court, Smt. Kasturu preferred an appeal before the appellate Court below, who by means of impugned order has allowed the same as noted hereinabove, hence this revision by the respondents. It may be appropriate to notice here that when the appeal was pending before the appellate Court below, Kasturu died and respondent Nos. 1 and 2 were ordered to be brought on record as her legal representatives in the case.

3. So far the matter relating for judging whether a person is an indigent person or not, possession of financial resources is the material criteria and not the property which a party is possessed of. In the instant case, what appears to have weighed with the trial Court was that late Smt. Kasturu was possessed of enough immovable properties and, therefore, it was of the view that she was in a position to pay the Court-fee. What is required to ascertain the fact whether the applicant is possessed of sufficient means for payment of Court-fee and not the extent of property owned and/or possessed by the applicant. That being so, the findings recorded by the lower appellate Court regarding Kasturu being an indigent person do not call for any interference and accordingly those are upheld in view of the evidence on the file.

4. Now there remains the question as to whether respondents Nos. 1 and 2 have to be taken as indigent persons or not after the death of Smt. Kasturu. They being legal representatives of the original applicant, Kasturu since deceased, can certainly continue with the proceedings in their own right. Only safeguard that has to be taken care of is that either they should prove themselves to be indigent persons or in the alternative they are made to pay the requisite Court-fees on the plaint. For the purpose of ascertaining whether legal representatives of the deceased are intact indigent persons or not, Court has got to make enquiry about the capacity of such persons to pay the Court-fees afresh. In support of this position, a reference can be made to a Full Bench decision rendered in case Mst. Latif-un-Nissa v. Mst. Khair-un-Nissa, AIR 1955 All 53, and in case Saraswatewwa v. Shivarudrappa Channappa Kinnala, AIR 1981 Kant 8.

5. In the present case lower appellate Court while holding Smt. Kasturu to be indigent person has fallen into error by further holding that after her death her legal representatives are also indigent persons. Such findings cannot be supported in law. Though Shri B.K. Malhotra made an attempt to support this finding of the lower appellate Court also but in vain.

6. In view of the aforesaid discussion, this revision is partly allowed thereby upholding the findings of the lower appellate Court that Smt. Kasturu was an indigent person, however, the findings that her legal representatives respondents N