The subject-matter of the suit is not to be excluded from consideration in determining whether the petitioner is a pauper, unless no court-fee is prescribed and the petitioner is not entitled to property worth Rs.100/- other than his wearing-apparel.

Judgement

PANIGRAHI, J. :- This is a petition under S.115, Civil P.C. seeking to have an order of the learned Subordinate Judge, Cuttack in Misc. Case No.133 of 1951, set aside. The petitioner filed a suit against her sister for setting aside a partition deed brought about on 19-7-51 dividing the properties left by their father who had died sometime prior to that date leaving his widow, the mother of the present parties, as his then surviving heir. The plaintiffs mother died in June 1950 and the partition deed which is impugned in the suit was executed on 19-7-51 at the house of the plaintiffs father where defendant 1 is said to be living with her husband. According to the deed of partition the plaintiff has been given one acre and odd of land in village Mantripada and 14 acres and odd of land in Mayurbhanj district, whereas opposite party 1 gets 61 acres and odd of lands at Mantripada. The plaintiff filed a petition to allow her sue in forma pauperis on the ground that she was not "possessed of sufficient means" other than the property in dispute, within the meaning of O.33, R.1, Civil P.C. The learned subordinate Judge held that the plaintiffs share in the suit property would be worth at least Rs.3500/- and as the court-fee payable was Rs.1967/-she should have made an attempt to raise funds for paying court-fee by alienating the lands. He further held that the plaintiffs husband, who was examined as P.W.1 said that he was not going to alienate the lands allotted to the plaintiff under the deed of partition, and it was clear, therefore, that the petitioner could have raised money from the lands in which she claimed her share and that she was unwilling to raise money by alienating those properties. On this view, the learned Subordinate Judge declined to treat her as a pauper, within the meaning of O.33, R.1, Civil P.C.

2. The Explanation to O.33, R.1, Civil P.C., reads as follows :

"A person is a pauper when he is not possessed of sufficient means to enable him to pay the fee prescribed by law for the plaint in such suit, or, where no such fee is prescribed, when he is not entitled to property worth one hundred rupees other than his necessary wearing-apparel and the subject-matter of the suit.

The Explanation consists of two parts. The first part says that if a person is not possessed of sufficient means to enable him to pay the fee prescribed by law he is to be regarded as a pauper. The second part says that if no such fee is prescribed and the petitioner has not property worth Rs.100/- other than the subject-matter of the suit, then he will be deemed to be a pauper. It will be noticed that the subject-matter of the suit is to be excluded from consideration, in determining whether the person is a pauper or not, only in the second case, namely where no court-fee is proscribed and where the petitioner is not entitled to property worth Rs.100/- other than his wearing-apparel. The first part of the Explanation does not expressly exclude the value of the subject-matter of the dispute being taken into consideration in determining whether the man is possessed of sufficient means. That this is the proper interpretation to be put upon the first part of the Explanation is clear from the reported cases placed before us: see for instance - Mithailal v. Jagan, AIR 1937 All 740. In that case Their Lordships observed as follows :

"It is, therefore, not possible to hold that in cases coming under the first category the subject-matter of the suit must always and of necessity be excluded from consideration. Whether it should or should not be excluded is a matter for the consideration of the Court which has to decide the question whether the plaintiff is or is not possessed of sufficient means to enable him to pay the fee."

This view has been uniformly followed by the Patna High Court. Our attention was drawn to the cases reported in: - Mst. Zainatul Nissa Bibi v. Mst. Indrakunnissa, 7 Cut LT 28: - Dhananjoi v. Rajkeshwar, AIR 1947 Pat 34 and - Bibi