2 S.C.R.

SUPREME COURT REPORTS 675

VIJAY PRATAP SINGH

DUKH HARAN NATH SINGH AND ANOTHER

(And Connected Appeal) (S. K. DAs, M. HIDAYATULLAH and J. C. SHAH, JJ.)

Suit-Application to sue in forma pauperia-Courts jurisdiction-Application for bei"9 tranaposed as plaintiff-If could be rejected on the ground that the claim made in original petition ia perBOnal-Oodt of Civil Procedure, 1908: (V of 1908) 0. J. rr. 1, JO, 0, SS, r. S(a).

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 rtjected 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 G 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 a11 application to sue in Jorma fl'.lupt, ria is personal to the applicant and nobody else can be made a co-applicant, because I, R. JO of the Code of Civil Procedure does. not apply to a proceeding for permisoion to sue as a pauper.

Ht Id, that 0. 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 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 th.e 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.

n application to sue in forma pauperis, is but a method prescribed by the Code for institution of a suit by a pauper

ithout payment o~ C'!t fee ; and there is nothing personal m such an application. The suit commences from the

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moment an application for permission to sue in forma pauper is as required by 0. 33 of the Code is presented, and 0. I r. 10. 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 Ly 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.

Crvu, APPELLATE JURISDICTION : Civil Appeals Noe. 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, R<l'fM.Yhtcar Nath and P. L. Jl'ohra, for the appellant in C. A. No. 253 of 1961 and

respondent No. 2 in C. A. No. 254 of 1961.

8. 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. Aggarwal<I and C. P. Lal,, for the respon dent No. I in both the appeals.

19!i2. January 19. The Judgment of the Court was delivered by

Sa.ur, J.-Vijay PratapSingh(hereinafter ealled the plaintiff) a minor-by his next friend Pandit Brij Mohan llfisir filed a petition in the Court of the

Subordinate Judge. Fa.izabad for leave to sue in for111a pauperi8 for declaration of title to the Ajodhya. Raj and accretions thereto and for p011868sion and mesne profits for three yea.rs prior to the suit. The petition was rejected by the Subordinate Judge because, in his view, it disclosed no ca.me of action. An application by Ramjiwa.n Misir father of the plaintiff who was impeaded as the second defendant, to be transposed as a petitiouer was also rejected by the Subordinate Judge. The plaintiff and Ra.mjiwan Misir applied to the High Court of Judicature at Allahabad in the exercise of it.I revisiona.1 jurisdiction against the orders rejecting

28.C.R.

SUPREME COURT REPGRTS 677

their respective petitions but without success. 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 pet.ition was briefly this. Maharaja Sir Man Singh bolder 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 M:iharaja Pratap Narain Singh, who died on Novemhrr \J, 1!106, leaving him surviving two widows Suraj Kumari and Jagdamba Devi and no line111 desc"udant. A will alleged to be executed by Maharaja Pratap Narain Singh on July 20, 1891, was set up but. it was void and ineffective bPcause, firstly, it was procnn>d by undue influence, coercion and frau<l practised upon the tes'tater, and, secondly it created a line of successi.; m contrary to law.

Accordingly on the death ot M:iharaja Pratap Narain tlingh th<< Raj devolved upon Maharani Suraj Kumari the senior widow aud on her death in

19:!7 upon ,\!nharani Jugdamba Devi, and on the death of the latter on June 18, 1928 upon Ganga Dutt Misir, rand 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 Mabaraja 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 propertyin suit with a life estate therein, and on her death on , June 18, 1938, the entire property in suit v11sted in Ganga Dlltt on whose death the plaintiff and defendant No. 2 became owners of the entire property in suit aR their joint ancestral property". Defendant No.I 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

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Raj was in the wrongful possession of the firdt 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 finit defendant Dukh Haran Singh resisted the petition inter alia contending that it did not discloee a caUBe 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 ;!l, 1951, prayod that he be transposed as a ptitioner submitting that his previous statement was procured by coercion and co?ll, aincd avermenta which were untrue. Ramjiwan was directed to pay the court fee payable on the phint within ten days and in default or payment, his application wa.a to stand tlismilllle<l.

Ramjiwan did not pay the oourt fee as directed hut 011 July 23, 1051, he again applied for being transposed n.s a petitioner in the petition for leave to sue in fornui pauperis filed by tne plaintiff.

Holding that it di,! not disclose a cause of action the Subordinate Judge rejccte<i the petition of the plaintiff.

The Subordinate Judge observed that there wa~ nothing in the petition to show how the disputed estate came to be governed

by the rule of inheritance under tho Hindu Law and, in any event, there was nothing in the petition to support the pica that the estate had lost its irn ·

prtible character, and that even if in view of the allegations contained in para 12 of the petition it be hold that the estato came to be governed by the ordinary Hindu Law, it did not become a pnr

tible eBtatc which tho plantiff could inherit, so long at his father Ra.mjiwan we.s alive. The petition filed hy Hamjiwan Misir was then taken np for

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 coplantiff when the application filed by the plantift' was held to be defective and liable to be rejected under 0. 3-3, r. 5( d), of the Code of Civil Procedure.

Against the two orders pa.sed 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 Ji wan ; Misir alone according to the rule of impartibility whi'oh governed the devolution of the estate. The High Covrt also observed that there was nothing in the petition to show that Ganga Dutt succeeded to the estate "on the basis of his being th9 nearest male reversioner under the Ordinary Hindu Law", and that it was unnecessary to consider whether the will by Maha.ra.ja Pratap .\a.rain 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 BUe in forrrw. pauperis the applicant prays for a relief personal to himself and therefore nobody else ean

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 I, 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 j'lined or that he ought to have been joined or his presence beore the court would be neoelll!ary in order to enfl.ble , the court effectively and completely to adjudicate upon and settle all the questions involved in the suit, The provisions of

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this rule will not apply to the procet1dings 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 plaintiff did not disclose a cause of action, or that 0. I, r. IO of the Codo of Civil Procedure cannot properly be resorted Lo for transposing a party in a petition for leave to sue in forma pauperis. The plaintiff had by his plaint set up an alternative C&Be. 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 mombers of a copareenary: alternatively, he ploaded that Aven 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 uf Act I of 1869" and on the death of Maharani JagJnmha Devi the property devolved upon Ganga Dut.t, the nearest reversioner under tho Hindu lnw and on his death it devolved upon the plaintiff and upon his father Ram Jiwan Misir.

Order XXXIII of the Code of Civil Pro<'A>elure prescribcH thtJ procedure for indtitutio11 of •Uitri by paupers. ltule 2 provides that particulal's a petition for permission to sue infvrmc1pauperi-<I shall contain aud r.3 sets out the mode of presentation of, the petition. Rule 4 authorises the Court to examine the applicant or his agcnt regarding the merits of the case and the property oft.he applicant. ltulc 5 provides:

"Thc Court he.II rejeet an appli1atio11 for pnmission to siw ns a pauper-

(a) where it is not. framt'<l ancl prcsentcd in the ruannn 111•H•'ril1rd hy rulos and :i, or

(b) whcro the applirant iH nut a pauper, or

~ i'.l.C.R.

SUPREME COURT REPORTS 681

( e) 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 1mch subject matter." Where the appli('ation is not rejected on the grounds set out in r. :i, the Court has under r. 6, to proceed, after giving notire to the c•pposite 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 subjcct to any of the prohibitions specified in r. 5. The Court is enjoined to reject a

petition wht're the prohibitions mentioned in els. (a) to ( e) of r. 5. exist. Even if the petition is not so rejrcted ttt the hearing of the petition, if the court is satisfied as to the existence of these prohibitions it m1iy be dismissed under r. 7.

It does not appear that any objection was raised as to the existence of prohibitions (c) and (d) set out in r. 5, and the Subordinate Judge disallowed the oujection that the petition was not framed and presented as prescribed by r. 2 and 3.

He did not consider the question whether the plaintiff was a pauper.. He rejectd the application only on the ground that it did not show a cause of action, and the High Court onfirmed the order also on that ground. By the express terms of r. 5 cl. ( d), the court is concerned to ascertain whether the allc•gntions made in the petition show a cause of action.

Tho court has not to see whether the claim made by the petitioner is likely to

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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 &coepting 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 aaoertaining 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 courJ; 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 or 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 estrictcd to ascertaining whether on the allegations a cause of action is shown: the jurisdiction doPJJ not extend to trial of issues which must fairly he left for decision at the boa.ring of the suit.

We do not propose to expr088 any opinion on the question whether on the doath of Jagdamba Devi the estate devolved under H. 22( I 0) of Act I of 18G9 upon Ramjiwan Misir and the plaintiff as members of a coparcena.ry.

Even if that claim is inconsist,.nt with the words of s. 22(101 of Act I of 18G9 on which the plaintiff himcolf rrlics, the plaintiff bad an altcrnativ" claim that the estate had become nontalnq<lari by virtue of the will and "the

acts and declaration" nf !\faharnja Pratap Narain.

In support of this claim, s. Hi. of Act I of 1869, before it wa.11 nm<'nclNl by U. P. Act ITI of l!l!O, is relied upon. At the timewhen l\Taharaja Pratap Narain died, s. 15 of the Act stood ; is follows:-

"If nnv taluqdar or grantee Hhall heretobefore ha.ve 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 property so transferred or bequeathed shall be regulated by the rules which would have governed the transfer of and succession to such property ifthe transferree or legatee had brought the same from a person not being a taluqdar or grantee." It is true that bys. 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 trarn1ferred or bequeathP.d 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 tho amending section hall affect suits pending 11t the commencement of the amending

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Act, or shall bo deemed to vest in or confer upon any yorsun any right or title to any rstate. or an:i; P.ort1on thereof, or any intcrrst therein, which 1s, at the commencement of the Amending Act, vest<id in any other person who would have been entitled to rntain 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 tho first dcfendrnt Oukh Haran Ringh, has contended that in vit1w of the retrospective oporation given to s. lei, as amende1l, the claim of the plaintiff that the taluqdari character of the 8tate is 1lestroyed

has no force and he ha.H invit<'d our attention to two decisions of tho Oudh Chief Court in Kmu Nage.•har Salwi v.

Shiam Rrilw/"Ur (') and .l1o/u1mmud Ali /\/urn v . .\'i.mr Ali /\/um(').

But we m•Pd express no opinion on tho correetnesH or otherwiHo of these decisionH.

An enquiry whothor by virtue of certain

provision~ of the statute on which th<' first defendant rolies, tlw plaintiff mll.y not. be entitled to t.ho estate i~. ,., already observed, not cont<'m.J?latcd to be mach in considering >\ petition for !Pave to sue

in fnr111a 1ifmpcri.•.

The trne cffect. of thn amrnded section Iii of the Oudh Estat.<'S Aet I of l 869 is a complioatcd question of law which the Court will not proceed to determine in ascertaining whether the petition for leavt' tu sue discloses 11. cause of action.

The High Court, in our judgment, was in error in observing that t.h<'re WM nothing in the

plaint to show that Oanga Dutt succcec!Nl to the estate bec,'l.use he was th<' nell.rcst malo revnrsioncr under the or<iinary Hin<iu law. Thr plaintiff has emphntically mnde that assertion: whether the claim to relief on the• b1iois of that :\ssertion was justified must be adjudicated at the trial of tho suit,

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and not in deciding whether the plaintiff should be permitted to sue in fomw pauperis.

We are also of the view that the High Court was in error in holding that by an application to sue in Jorrn11 pauper-is, the applicant prays for relief personal to himself. An application to sue in Jorrnn 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 pa'l), peris as required by 0. 33 of the Code of Civil Procedure is presented, and O. l, r. 10, of the Code of Civil Procedure would be as much applicable in such a suit as in a suit in which oourt 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 has made since it was instituted nearly twelve years ago. We regret to observe that the petition filed in July 1950 for leave to sue informa 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 wore further heYd up even after special leave was granted by this Court in March, 1957 for nearly five yea.rs before the appeal could be heard.

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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 ueo of tJrn court to \vhich no reference was ma.de at the Bar during the course of the hearing. Wo trust that the oaee will bo taken up for hearing with the least practicable delay a.nd 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 tho trial court will be the cost in the cause.

Appeals allowed. Cases remitted.

THE LODNA COLLIERY CO. LTD. v.

BHOLA.NATH ROY (B. P. SINH.4, c. J., P. B. GAJENDRA.GA.D.KA.R

and RAGilUJIAR DAYAL, JJ.) Lalthraj lan&--Permanently selt/., J,-Owmra' rigll lo ,<Ub-soil mintrai..

The question arising for decision was whether a pcnon with whom a re1umed invalid Lakhraj (revenue free) land was permanently 11ttfled had rights in the sub-soil minerals or not.

Held, that the right of property of the persons with whom resumed invalid Lakhraj land had been settled, being the same as of the Zamindars, extended to the sub-soil min era ls of the land held by them.

Ranjit Singlo v. Kali DMi Dt.bi (1917) L.R.44 I.A. 117, referred to.

Bari Narain Singh v. Sri Ram Chakrabarli (1910) L. R. 37 I.A. 136, DurgaPrasad Singh v. Braja Nath Boae (1912) L.R. 39 I.A. 133. Sashi Bhuaan Mwa v. Jyoti Prasad Singlo Deo, (1916)L.R.44 I.A.46 and Raghtmath Roy Marwari v. Raja of Jhms, (1919) L.R. 46 I.A. 158, held not applicable.

CrvIL APPELLATE JURISDICTION: Civil Appeal No. 405 of 1966.