Case: Vijay Pratap Singh &amp; Another Vs. Dukh Haran Nath Singh &amp; Another

propose to express any opinion on the question whether on the death of Jagdamba Devi the estate devolved under S. 22 (10) of Act 1 of 1869 upon Ramjiwan Misir and the plaintiff as members of a coparcenary. 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 declarations" 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 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 having made the transfer and intestate, the transfer of and succession to the properly 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."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 legatees, 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 ant of the classes specified in S. 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 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.11. Mr. Agarwalla, appearing on behalf of the first defendant 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 estate is destroyed has no force and he has invited our attention to two decisions of the Oudh Chief Court in Nageshar Sahai v. Shiam Bahadur, AIR 1922 Oudh 231 and Mohammad Ali Khan v. Nisar Ali Khan, AIR 1928 Oudh 67. 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 S. 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.12. The High Court, in our judgment, was in error 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, and not in deciding whether the plaintiff should be permitted to sue in forma pauperis.13. 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 established 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 applicant is personal to himself.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]7. We are unable to agree with the view of the High Court that the petition filed by the 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 coparcenary: alternatively he pleaded that even if the will was valid, by the terms thereof and by the other acts and declarations 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.It does not appear that any objection was raised as to the existence of prohibitions (c) and (d) set out in. 5, and the Subordinate Judge disallowed the objection that the petition was not framed and presented as prescribed by rules 2 and 3. He did not consider the question whether the plaintiff 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 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.10. 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 1 of 1869 upon Ramjiwan Misir and the plaintiff as members of a coparcenary. 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 declarations" 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 reliedwe 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 S. 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.12. The High Court, in our judgment, was in error 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, and not in deciding whether the plaintiff should be permitted to sue in forma pauperis.13. 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 established 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 theCode of Civil Procedure is presented and O. 1, R. 10 of theCode 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 applicant is personal to himself.