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PETITIONER: VIJAY PRATAP SINGH

       Vs.

RESPONDENT: DUKH HARAN NATH SINGH AND ANOTHER (And ConnectedAppeal)

DATE OF JUDGMENT: 19/01/1962

BENCH: SHAH, J.C. BENCH: SHAH, J.C. DAS, S.K. HIDAYATULLAH, M.

CITATION:  1962 AIR  941            1962 SCR  Supl. (2) 675  CITATOR INFO :  F          1972 SC2379  (4)  E          1973 SC2508  (10,13)

ACT:      Suit-Application to  sue in  forma  pauperis- Courts    jurisdiction-Application    for    being transposed as  plaintiff-If could  be rejected  on the  ground   that  the  claim  made  in  original petition  is  personal-Code  of  Civil  Procedure, 1908: (V of 1908) O. 1 rr. 1, 10, 0, 35, r. 5(a).

HEADNOTE:      The Estate  of Maharaja  Man Singh of Ayodhya Raj devolved  on his death successively on his two widows  and   thereafter,  according   to  V   the plaintiff a  minor on  his grandfather G, who died in 1942.  Respondent claimed the estate as adopted son of the junior widow of the Maharaja. V filed a petition for  leave to  sue in  forma pauperis for declaration of  title to  the  estate  making  his father R  a party.  The plaintiff’s  petition  was rejected by  the Subordinate  Judge, on the ground that  it   disclosed  no   cause  of  action.  R’s application to  be transposed  as  petitioner  was also  rejected.   V  and   R  preferred   revision applications to  the High  Court of Allahabad. The plaintiff’s application  was rejected  by the High Court holding inter alia that there was nothing in the petition  to show that succeeded to the estate as the  nearest male  reversioner of the last male holder. R’s  application was  rejected by the High Court on  the ground that relief in an application to sue  in  forma  pauperis  is  personal  to  the applicant and  nobody  else  can  be  made  a  co- applicant, because  1, R.  10 of the Code of Civil Procedure does  not  apply  to  a  proceeding  for permission to sue as a pauper. ^      Held, that  O. XXXIII  of the  Code of  Civil Procedure lays  down the procedure for institution of a  suit by  pauper. By  cl. 5  (d) the court is

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required to  ascertain whether the allegation made in the  petition show  a cause  of action,  but it does  not   enter  upon  a  trial  of  the  issues affecting the  merits of  the claim  made  by  the petitioner. By  the statute,  the jurisdiction  of the Court is restricted to ascertaining whether on the allegations  a cause  of action  is shown: the jurisdiction does  not extended to trial of issues which must  fairly be  left for  decision  at  the hearing of the suit.      An application  to sue  in forma pauperis, is but  a   method  prescribed   by  the   Code   for institution of  a suit by a pauper without payment of Court  fee; and  there is  nothing personal  in such an application. The suit commences from the 676 moment an  application for  permission to  sue  in forma pauperis as required by O. 33 of the Code is presented, and  O. 1  r. of  the Code  would be as much applicable  in such  a suit  as in  a suit in which court  fee had  been duly paid. A person who claims to  join a  petitioner praying for leave to sue in  forma pauperis  must himself  be a pauper. Claim to  join by  transposition as  an  applicant must be  investigated; it  is  not  liable  to  be rejected on  the ground that the claim made by the original applicant is personal to himself.

JUDGMENT: CIVIL APPELLATE  JURISDICTION: Civil  Appeals Nos. 253 and 254 of 1961.      Appeals by  special leave  from the  judgment and order  dated May 2,1955, of the Allahabad High Court in Civil Revision Nos. 881 and 882 of 1952.      S. F. Andley, Rameshwar Nath and P. L. Vohra, for the  appellant in  C. A.  No. 253  of 1961 and respondent No. 2 in C. A. No. 254 of 1961.      S. P.  Varma, for  the appellant  in C.A. No. 254 of  61 and respondent No. 2 in C.A. No. 253 of 1961.      C. B.  Aggarwala  and  C.  P.  Lal,  for  the respondent No. 1 in both the appeals.      1962. January  19. The  Judgment of the Court was delivered by      SHAH,   J.-Vijay   Pratap   Singh(hereinafter called the  plaintiff) a  minor-by his next friend Pandit Brij  Mohan Misir  filed a  petition in the Court of the Subordinate Judge, Faizabad for leave to sue  in forma pauperis for declaration of title to the  Ajodhya Raj and accretions thereto and for possession and mesne profits for three years prior to the  suit. The  petition was  rejected  by  the Subordinate  Judge   because,  in   his  view,  it disclosed no  cause of  action. An  application by Ramjiwan Misir  father of  the plaintiff  who  was impleaded  as   the  second   defendant,   to   be transposed as  a petitioner  was also  rejected by the Subordinate  Judge. The plaintiff and Ramjiwan Misir applied  to the  High Court of Judicature at Allahabad  in   the  exercise  of  its  revisional jurisdiction against the orders rejecting 677 their respective  petitions but  without  success.

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They have  with special  leave  appealed  to  this Court against the orders passed by the High Court.      The case  set up  by  the  plaintiff  in  his petition was  briefly this. Maharaja Sir Man Singh holder of  the Ajodhya Raj was a Taluqdar in lists I, II  and V  of the Oudh states set I of 1869. He died  in  1870  and  the  Raj  devolved  upon  his daughter’s son  Maharaja Pratap  Narain Singh, who died on  November 9,  1906, leaving  him surviving two widows  Suraj Kumari  and Jagdamba Devi and no lineal descendant.  A will  alleged to be executed by Maharaja  Pratap Narain Singh on July 20, 1891, was  set  up  but  it  was  void  and  ineffective because,  firstly,   it  was   procured  by  undue influence, coercion  and fraud  practised upon the testater, and,  secondly  it  created  a  line  of succession contrary  to law.  Accordingly  on  the death of  Maharaja Pratap  Narain  Singh  the  Raj devolved upon  Maharani Suraj  Kumari  the  senior widow and  on her  death  in  1927  upon  Maharani Jugdamba Devi,  and on  the death of the latter on June 18,  1928 upon Ganga Dutt Misir, grand father of the plaintiff Ganga Dutt Misir died in 1942 and the estate  devolved upon his son Ramjiwan and his grandson, the plaintiff as co-parceners in a Hindu joint family.  Even if  the  will  was  valid  and effective "the  terms thereof  alongwith  Maharaja Pratap Singh’s  other acts  and declarations"  had the effect of taking the estate out of the purview of Act  I of  1869 with  the result  that Maharani Jagdama Devi  enjoyed the  property in suit with a life estate  therein, and on her death on June 18, 1938, the  entire property in suit vested in Ganga Dutt on  whose death  the plaintiff  and defendant No. 2 became owners of the entire property in suit as their joint ancestral property". Defendant No.1 Dukh Haran Singh Claimed to be adopted as a son by Jagdamba Devi  on February  12, 1909 but the claim was "utterly false, fictitious and untrue" for the reasons set out in the partition, and the 678 Raj was  in the  wrongful possession  of the first defendant Dukh Haran Singh.      The  plaintiff   alleged  that   his   father Ramjiwan Misir  was "detained and confined" by the first  defendant   and  was  unable  to  join  the plaintiff in the petition.      The first defendant Dukh Haran Singh resisted the petition inter alia contending that it did not disclose a cause of action and that, in any event, the claim  made by the plaintiff was barred by law of limitation.      Initially Ram  Jiwan Misir supported the will and the  plea of  adoption set  up  by  the  first defendant, but  by an  application dated April 21, 1951, prayed that he be transposed as a petitioner submitting  that   his  previous   statement   was procured by coercion and contained averments which were untrue.  Ramjiwan was  directed  to  pay  the court fee  payable on  the plaint  within ten days and in  default of payment, his application was to stand dismissed.  Ramjiwan did  not pay  the court fee as  directed but  on July  23, 1951,  he again applied for  being transposed  as a  petitioner in the petition  for leave  to sue  in forma pauperis

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filed by  the plaintiff.  Holding that  it did not disclose a  cause of  action the Subordinate Judge rejected  the   petition  of  the  plaintiff.  The Subordinate Judge  observed that there was nothing in the  petition to  show how  the disputed estate came to  be governed  by the  rule of  inheritance under the  Hindu Law  and, in any event, there was nothing in  the petition  to support the plea that the estate  had lost its impartible character, and that even  if in view of the allegations contained in para  12 of  the petition  it be  held that the estate came  to be  governed by the ordinary Hindu Law, it did not become a partible estate which the plaintiff could  inherit, so  long at  his  father Ramjiwan was alive. The petition filed by Ramjiwan Misir was then taken up for 679 hearing and was also rejected because, in the view of the  learned Judge, "no useful purpose would be served" by  transposing Ram  Jiwan  Misir  as  co- plaintiff  when   the  application  filed  by  the plaintiff was  held to  be defective and liable to be rejected  under O.  33, r. 5(d), of the Code of Civil Procedure.      Against  the   two  orders   passed  by   the subordinate Judge the plaintiff preferred Revision Application  No.   881  of   1952  and  Ram  Jiwan preferred Revision  Petition 882 of 1952. The High Court  rejected  the  petition  of  the  plaintiff holding that  on the  death of  Ganga Dutt in 1942 the estate  would devolve  upon  Ram  Jiwan  Misir alone according to the rule of impartibility which governed the  devolution of  the estate.  The High Court also  observed that there was nothing in the petition to  show that Ganga Dutt succeeded to the estate "on the basis of his being the nearest male reversioner under  the Ordinary  Hindu  Law",  and that it  was unnecessary  to consider  whether the will by Maharaja Pratap Narain took out the estate from  the  operation  of  the  Act,  "because  the plaintiff did  not rely upon the will and whatever the  plaintiff  had  stated  in  the  petition  in connection with  the will  was simply  by  way  of answer to what might be contended by the defendant in the  suit." Dealing  with the  petition of  Ram Jiwan Misir  the High  Court observed  that "By an application to sue in forma pauperis the applicant prays  for   a  relief  personal  to  himself  and therefore nobody  else can  be properly made a co- applicant. There  is  no  direct  provision  which provides that  a court  should transpose  a  party from one  side to the other. Order 1, r. 10, gives the power  to the  court to  strike out or add the names of  parties when it appears that he has been improperly joined  or that  he ought  to have been joined or  his presence  before the court would be necessary in order to enable the court effectively and completely  to adjudicate  upon and settle all the questions involved in the suit. The provisions of 680 this rule  will not apply to the proceedings on an application for permission to sue as a pauper".      We are  unable to  agree with the view of the High  Court   that  the   petition  filed  by  the

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plaintiff did  not disclose  a cause of action, or that O.  1, r.  10 of  the Code of Civil Procedure cannot properly  be resorted  to for transposing a party in  a petition  for leave  to sue  in  forma pauperis. The  plaintiff had  by his plaint set up an alternative  case. In  the  first  instance  he pleaded that  the will  alleged to  be executed by Maharaja Pratap Narain on July 20, 1891, was "void and ineffective"  and the estate devolved upon Ram Jiwan and  the  plaintiff  as  members  of  a  co- parcenary: alternatively,  he pleaded that even if the will  was valid,  by the  terms thereof and by the other  acts and declaration of Maharaja Pratap Narain Singh,  the estate  was taken  out "of  the purview of  Act I  of 1869"  and on  the death  of Maharani Jagdamba  Devi the property devolved upon Ganga Dutt,  the  nearest  reversioner  under  the Hindu law  and on  his death  it devolved upon the plaintiff and upon his father Ram Jiwan Misir.      Order XXXIII  of the  Code of Civil Procedure prescribes the  procedure for institution of suits by paupers.  Rule 2  provides that  particulars  a petition for  permission to  sue in forma pauperis shall  contain  and  r.3  sets  out  the  mode  of presentation of  the petition.  Rule 4  authorises the Court  to examine  the applicant  or his agent regarding the  merits of the case and the property of the applicant. Rule 5 provides:           "The Court  shall reject  an application      for permission to sue as a pauper-                (a) where  it  is  not  framed  and           presented in  the manner  prescribed  by           rules 2 and 3, or                (b) where  the applicant  is not  a      pauper, or 681                (c) where he has, within two months           next  before  the  presentation  of  the           application, disposed  of  any  property           fraudulently or  in order  to be able to           apply for permission to sue as a pauper,           or                (d) where  his allegations  do  not           show a cause of action, or                (e) where  he has  entered into any           agreement with  reference to the subject           matter of  the proposed suit under which           any  other   person  has   obtained   an           interest in such subject matter." Where the  application  is  not  rejected  on  the grounds set out in r. 5, the Court has under r. 6, to proceed,  after giving  notice to  the opposite party  and  the  Government  pleader,  to  receive evidence as  the applicant  may adduce in proof of his pauperiam.  By r. 7 the Court is authorised to consider where the applicant is not subject to any of the  prohibitions specified  in r. 5. The Court is  enjoined   to  reject  a  petition  where  the prohibitions mentioned in cls. (a) to (e) of r. 5. exist. Even  if the petition is not so rejected at the hearing  of the  petition,  if  the  court  is satisfied   as   to   the   existence   of   these prohibitions it may be dismissed under r. 7.      It does  not appear  that any  objection  was raised as to the existence of prohibitions (c) and

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(d) set  out in  r. 5,  and the  Subordinate Judge disallowed the objection that the petition was not framed and  presented as prescribed by r. 2 and 3. He did  not  consider  the  question  whether  the plaintff was a pauper. He rejected the application only on the ground that it did not show a cause of action, and  the High  Court confirmed  the  order also on  that ground. By the express terms of r. 5 cl. (d),  the  court  is  concerned  to  ascertain whether the  allegations made in the petition show a cause  of action.  The  court  has  not  to  see whether the claim made by the petitioner is likely to 682 succeed: it  has merely to satisfy itself that the allegations made  in the  petition, if accepted as true, would  entitle the  petitioner to the relief he claims.  If accepting those allegations as true no case  is made  out for granting relief no cause of action  would be shown and the petition must be rejected. But in ascertaining whether the petition shows a  cause of  action the court does not enter upon a trial of the issues affecting the merits of the claim  made by  the petitioner. It cannot take into  consideration   the   defences   which   the defendant may  raise upon  the merits;  nor is the court competent  to make an elaborate enquiry into doubtful or  complicated questions of law or fact. If the  allegations in  the petition, prima facie, show a  cause of  action, the  court cannot embark upon an  enquiry whether  the allegations are true in fact, or whether the petitioner will succeed in the claims  made  by  him.  By  the  Statute,  the jurisdiction  of   the  Court   is  restricted  to ascertaining whether on the allegations a cause of action is  shown: the jurisdiction does not extend to trial  of issues  which must fairly be left for decision at the hearing of the suit      We do  not propose  to express any opinion on the question whether on the death of Jagdamba Devi the estate  devolved under  s. 22(10)  of Act I of 1869 upon  Ramjiwan Misir  and  the  plaintiff  as members of  a co-parcenary.  Even if that claim is inconsistent with  the words of s. 22(10) of Act I of 1869 on which the plaintiff himself relies, the plaintiff had an alternative claim that the estate had become non-taluqdari by virtue of the will and "the acts  and  declaration"  of  Maharaja  Pratap Narain. In  support of  this claim, s. 15 of Act I of 1869, before it was amended by U. P. Act III of 1910, is  relied upon.  At the  time when Maharaja Pratap Narain  died, s.  15 of  the Act  stood  as follows:-           "If  any   taluqdar  or   grantee  shall      hereto-before have transferred or bequeathed,      or if 683      any  taluqdar  or  grantee  or  his  heir  or      legatee shall hereafter transfer or bequeath,      to any person not being a taluqdar or grantee      the whole  or any  portion of his estate, and      such  person   would   not   have   succeeded      according to  the provisions  of this  Act to      the estate  or to  a portion  thereof if  the      transferor  or   testator  had  died  without

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    having made  the transfer  and intestate, the      transfer of and succession to the property so      transferred or  bequeathed shall be regulated      by the  rules which  would have  governed the      transfer of  and succession  to such property      if the  transferee or legatee had brought the      same from  a person  not being  a taluqdar or      grantee." It is  true that  by s.  8 of Act III of 1910, the section has  been substantially modified and reads as follows:-           "If any taluqdar or grantee, or his heir      or legatee, shall heretofore have transferred      or bequeathed, or if any taluqdar or grantee,      or  his  heir  or  legatee,  shall  hereafter      transfer or bequeath the whole or any portion      of his  estate to  any person  who did not at      the time  when the  transfer or  bequest took      effect belong to any of the classes specified      in section 14, the transfer of and succession      to the  property so transferred or bequeathed      shall be  regulated by  the rules which would      have governed  the transfer of and succession      to such property if the transferee or legatee      had bought the same from a person not being a      taluqdar or grantee, heir or legatee." By s. 21 of the Amending Act III of 1910 a partial retrospective operation  was given  to the amended section. The  retrospective operation  was limited by  the   proviso  which   enacted  that   nothing contained in  the amending  section  shall  affect suits pending at the commencement of the amending 684 Act, or  shall be deemed to vest in or confer upon any person  any right  or title  to any estate, or any portion  thereof,  or  any  interest  therein, which is, at the commencement of the Amending Act, vested in  any other  person who  would have  been entitled to  retain the  same if  the amending Act had not  been passed,  and the  right or  title of such  other   person  shall  not  be  affected  by anything contained in the said section.      Mr. Agarwalla,  appearing on  behalf  of  the first defendent  Dukh Haran  Singh, has  contended that in  view of the retrospective operation given to s.  15, as  amended, the claim of the plaintiff that the  taluqdari  character  of  the  state  is destroyed has  no force  and he  has  invited  our attention to two decisions of the Oudh Chief Court in Kaur  Nageshar Sahai  v. Shiam  Bahadur (1) and Mohammad Ali  Khan v.  Nisar Ali  Khan(2). But  we need express  no opinion  on  the  correctness  or otherwise of  these decisions.  An enquiry whether by virtue  of certain provisions of the statute on which the  first defendant  relies, the  plaintiff may not  be entitled  to the estate is, as already observed,  not   contemplated  to   be   made   in considering a  petition for  leave to sue in forma pauperis. The  true effect  of the amended section 15 of  the  Oudh  Estates  Act  I  of  1869  is  a complicated question  of law  which the Court will not proceed  to determine  in ascertaining whether the petition for leave to sue discloses a cause of action.      The High Court, in our judgment, was in error

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in observing  that there was nothing in the plaint to show  that Ganga  Dutt succeeded  to the estate because he  was the nearest male reversioner under the  ordinary   Hindu  law.   The  plaintiff   has emphatically  made  that  assertion:  whether  the claim to relief on the basis of that assertion was justified must  be adjudicated at the trial of the suit, 685 and not  in deciding  whether the plaintiff should be permitted to sue in forma pauperis.      We are  also of  the view that the High Court was in  error in holding that by an application to sue in  forma pauperis,  the applicant  prays  for relief personal  to himself. An application to sue in forma  pauperis, is  but a method prescribed by the Code  for institution  of a  suit by  a pauper without payment  of fee  prescribed by  the  Court Fees Act.  If the claim made by the applicant that he is  a pauper  is not  establish the application may fail. But there is nothing personal in such an application. The suit commences from the moment an application  for   permission  to   sue  in  forma pauperis as required by O. 33 of the Code of Civil Procedure is  presented, and  O. 1,  r. 10, of the Code  of   Civil  Procedure   would  be   as  much applicable in  such a  suit as  in a suit in which court fee  had been  duly paid.  It is true that a person who claims to join a petitioner praying for leave to  sue in  forma pauperis must himself be a pauper. But  his claim to join by transposition as an applicant  must  be  investigated;  it  is  not liable to be rejected on the ground that the claim made by  the original  applicable is  personal  to himself. In  our view,  the orders  passed by  the High Court  in both the revision applications must be set aside.      Before parting  with the  case, we  must take notice  of   the  unsatisfactory   progress   this litigation had made since it was instituted nearly twelve years  ago. We  regret to  observe that the petition filed  in July  1950 for  leave to sue in forma  pauperis   was  not   disposed  of  by  the Subordinate Judge  for two  years and  it took the High Court  three years to dispose of the revision petitions against  the orders  of the  Subordinate Judge. The  proceedings were  further held up even after special  leave was  granted by this Court in March, 1957  for  nearly  five  years  before  the appeal could be heard. This 686 Court had  ordered that the hearing of the appeals be expedited  and heard  on cyclostyled record but the record  was not made ready for a long time. We also find  that a  large number  of documents were included in  the books  prepared for  use  of  the court to  which no  reference was  made at the Bar during the  course of  the hearing.  We trust that the case  will be  taken up  for hearing  with the least practicable  delay and disposed of according to law.      The appellants  in the  two appeals  will  be entitled to their costs both in this Court and the High Court.  The costs  of the trial court will be the cost in the cause.

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                 Appeals allowed. Cases remitted.