1. The plaintiff in Suit No. 458 of 1905 filed this petition praying that she may be allowed to continue this suit in forma pauperis. The matter was fully heard by the Prothonotary who, after recording evidence, delivered judgment on the 5th of February last, refusing to give leave to the plaintiff to continue the suit in forma pauperis. On the 19th of February the petitioner's attorney applied to me in chambers under Rule 80A1 to have the matter adjourned to me. I directed notice of this application to be given to the defendant's attorneys. On the 23rd of February last I heard the defendant's attorney and then made an order adjourning the matter to the Judge in chambers. The matter was fully argued before me on the 4th of March 1907 by Mr. Thakordas for the petitioner and Mr. Jamietram for the respondents. When adjourning the matter into chambers I gave directions at the request of the defendant's attorney to the plaintiff's attorney to file in the Prothonotary's office the grounds on which the application was based. This has been done.
2. Rule 80A1 is of recent introduction and I believe this is the first application under the Rule to the Chamber Judge. I was in doubt as to what was the extent of the powers conferred on the Judge in chambers by this Rule and as to whether the proceedings before me were in the nature of an appeal, review, or revision. I find that this Rule is framed from the practice followed in England under Order 55. Rule 15 under this Order provides for the delegation of some of the duties of the Judges of the Chancery Division to their Chief Clerks and Section 69 provides for the taking of the opinion of the Judge. In Upton v. Brown (1882) 20 Ch. D. 731 the Master of the Rolls expressly recognises the right of the party to have every item in an account in the course of being taken by the Chief Clerk adjourned to the Chamber Judge if the party is dissatisfied with the decision of the Chief Clerk. Then again in the case of Smith v. Watts (1882) 22 Ch. D. 5, in discussing the question of adjournment to the Judge, Sir George Jessel, Master of the Rolls, says: '-The Chief Clerk decided against them and they took the case to the Judge. This is not an appeal. They were entitled to have the opinion of the Judge. ' And Lord Justice Cotton follows up by the observation that the losing party has a right to require that the matter should be decided by the Judge himself.
3. Formerly all pauper investigations used to be put on the Board of a Judge hearing short causes and they were dealt with by the Judge. This duty is now under the Rules delegated to the Prothonotary and this has worked most satisfactorily and has saved a great deal of the Court's time. On the authorities however and under Rule 80 A1 it seems to be the right of a party dissatisfied with the Prothonotary's decision to apply to the Judge to have the matter adjourned to him and I take it that the Judge in chambers is bound to take up the matter and decide the matter for himself.
4. I find that the Prothonotary has given much care and attention to this matter and after considering the evidence recorded by him he has delivered a considered judgment. I was not prepared to treat this decision of his lightly, and, although I formed certain impressions when I heard arguments in chambers, I took time to consider my judgment. I have now gone 'through the evidence recorded before the Prothonotary-the Exhibits put in at the hearing and the judgment. I found that the plaintiff was refused leave to continue the suit in forma pauperis on two grounds. The first ground urged against her was that she had certain ornaments which were alleged by her to be pledged for Rs. 1000 and that the value of the ornaments must be in excess of the amount advanced on them. Ordinarily it would be correct to assume that the value of ornaments pledged would exceed the amount advanced on the pledge of them back. What are the circumstances here. The plaintiff is ordered by the Court to deposit a thousand rupees as security for the defendant's costs of the suit. She goes to her sister's husband Lakhmsey Bhimsey and asks him to advance to her the thousand rupees required by her. She has no security to offer except two ornaments. These she and her witness say were worth only Rs. 800. Lakhmsey accepted them as security and gave to her sister-in-law the thousand rupees she required. There is nothing improbable in this. To my mind it is more than likely that this is the correct version of the transaction. The only argument urged against the acceptance of this story is that the ornaments were not produced and Ldkhmsey was not called. It seems to me that the production of ornaments and calling of Lakhmsey could not have helped the defendant's case against the plaintiff at all, It has not been suggested that Lakhmsey Bhimsey is not friendly to the plaintiff. The suggestion on the other hand appears to be that he is very friendly to and well inclined towards the plaintiff. If the plaintiff wished to mislead and deceive the Prothonotary nothing could have been easier than to have called Lakhmsey and produced two ornaments answering to the description of the ornaments stated to be pledged to him of the value of about Rs. 800. It would not have been at all difficult to borrow a sankli and googri of the value of Rs. 800 or thereabout and produce before the Prothonotary as the ornaments pledged by Meghbai and there was no one to disprove this, however false the statement may have been. I do not think therefore that it is by any means a safe inference to draw that the ornaments must have been worth more than Rs. 1000 from the fact that they were not produced before the Court or because Lakhmsey was not called.
5. Besides this it must be remembered that there is the sworn testimony of the plaintiff and her witness and absolutely no evidence to contradict this. Having regard to all the circumstances of the case the conviction carried to my mind is that the plaintiff when she was ordered to deposit security was driven to resort to her last resource-her remaining ornaments and that although they were not sufficient security for the loan Lakhmsey accepted them and advanced more than their value in order to help his wife's widowed sister.
6. I find on the evidence that the first ground on which leave was refused fails as I hold that there will be no margin whatever in the plaintiff's favour when Lakhmsey Bhimsey sells her ornaments and realises his debt.
7. The second ground urged against the plaintiff's application is that she is entitled to property worth considerably more than Rs. 100. For the purpose of showing that the plaintiff is entitled to property reliance in the first place is put on the statements made by the plaintiff in her petition for letters of administration to her husband's estate and the schedule of property annexed to that petition. In that schedule she sets out certain houses and fields situated at Pipri and Parola and alleges that these properties worth about 1800 rupees belonged to her husband. Reliance is also placed in the statement of the plaintiff Meghbai made in her affidavit affirmed on the 9th of August 1906. In the 8th paragraph of that affidavit she says ' I am entitled to five houses and five fields of the value of Rs. 1800 or thereabouts which are not the subject matter of this suit.'
8. The Court investigating the pauperism of the applicant is not I think justified in saying to the applicant ' you have made a claim to property worth more than Rs. 100 and therefore you must be held to be entitled to that property.' In my opinion the Court is bound to find out whether the applicant is as a matter of fact entitled to property worth Rs. 100. It is interesting to see how the defendant has met the claim of the plaintiff to these properties. On the 23rd of July 1906,. she obtained a Judge's summons wherein amongst other things the plaintiff was required to show cause why she should not deposit a sum of Rs. 2000 or such other sum as the Court may direct as security for the costs of the defendant. This application for security for costs was made under the provisions of the 2nd paragraph of Section 380 of the Civil Procedure Code. The Court could make such an order only ' if satisfied ' that the woman plaintiff' does not possess any sufficient immoveable property within British India independent of the property in the suit. ' In support of this summons the defendant Poonjabai made an affidavit which is affirmed by her on the 20th of July 1906. In the 14th paragraph of that affidavit she says:-'The plaintiff is not possessed of any moveable property in British India.' In paragraph 15 referring to the schedule annexed to the plaintiffs petition for letters of administration to her husband's estate, she says....The said schedule is misleading and incorrect. The said houses and fields are not the property of her deceased husband. The same were purchased by her husband out of the assets of the Parola business....The same belonged to the Parola firm of which firm she secks accounts. These properties are in my possession and are transferred to the name of my grandson Tokersey by a release dated the 3rd of August 1903. The plaintiff has inserted these properties in her schedule to her petition...with a view to put forward a false claim to the said properties. '
9. In para 16 of the same petition it is stated that the defendant is a person of no means,' and that the deponent has no hopes of recovering the costs already awarded against her.
10. It was in reply to this affidavit that the plaintiff made her affidavit of the 9th of August 1906 and referred to above, wherein she reiterated the claim made by her to these properties in her petition. On this summons Thakarsey Lukhmsey the Moonim of the plaintiff has made an affidavit which is affirmed on the loth of August 1906. This to my mind is a very important affidavit. Before discussing the contents of the affidavit it is as well to state here one of the principal points of contest between the plaintiff and the defendant. The plaintiff's husband has left a step son named Meghji. The defendant contends that Meghji on behalf of himself and his step-mother the plaintiff has settled and adjusted the partnership accounts which the plaintiff seeks to have taken in the suit. A letter purporting to be signed by the plaintiff is produced as evidence of Meghji's authority to act on the plaintiffs behalf Meghbai denies the genuineness of the signature to that letter and says she never signed the letter and never authorized Meghji to act on her behalf. Purporting to act under the authority of this letter not only has Meghji adjusted the accounts but passed an acknowledgment which says that Rs. 3900 were due by the estate of plaintiffs husband to the estate of the defendant's son and he has also executed a release dated the 3rd of August 1903 whereby amongst other things the immoveable properties of the firm were transferred to the name of the defendants grandson Tokersey. This is specifically pleaded by the defendant Meghbai in support of her Judge's summons as appears from the 3rd paragraph of her affidavit of the 20th of July 1903. It appears further that on the strength of this letter of authority put forward by the defendant Mr. Justice Tyabji refused the plaintiffs application for a Receiver and dismissed it with costs. Having regard to these various contentions now let us turn to the affidavit of the defendant's Moonim, Thakersey Lukhmsey. In para 7 of his affidavit he says:-'I have examined the account books of the Parola firm and have traced the history of the said houses and fields which is given hereunder.' He then goes into the whole history of these properties taking each one separately. He adds to the history of these properties a description of the litigation in respect of some of the properties. He ends up by saying in the 18th paragraph of his affidavit that none of the ten properties mentioned in the schedule to the plaintiff's petition for letters ever belonged to the plaintiff's husband Ruttonsey Natha as his separate property, that they were all purchased out of the firm's assets and belonged to the partnership and have been conveyed to the defendant's grandson by Meghji Ruttonsey. On the face of these affidavits and the facts and circumstances disclosed in them I find it impossible to hold that the plaintiff is entitled to these properties. It is one thing to say that she claims to be entitled to these properties but it is quite another thing to say that she is entitled to the properties. It will depend on the result of the suit as to whether she gets any interest in the properties at all. The defendant says they are partnership properties bought out of partnership assets, that they now belong to her grandson validly conveyed to him by the plaintiff's agent duly authorised to act on her behalf. Why should it be assumed that these contentions are false 1 Why hold the plaintiff to her claim to these properties and argue that she is now estopped from denying that she is entitled to these properties and leave the defendant to blow hot and cold at the same time through her solicitor. I asked Mr. Jamietram whether his client was prepared to say that these properties are the plaintiffs or that her claim to be entitled to those properties was admitted by his client and he seemed very much surprised that it should be ever contemplated that his client would admit the plaintiffs claim to these properties.
11. But there is another point of view from which the question could be regarded and it seems to me that that view is equally conclusive against the defendant's contention.
12. The plaintiff was called upon to give security for costs on the assumption that though she was a resident in British India, she was a woman who had not sufficient immoveable property in British India independent of property in the suit. The affidavits I have discussed above were put in on the summons and on the question of security for costs the only issue was 'was the defendant possessed of the immoveable properties which she said belonged to her husband and which she now claimed to be entitled to.' Mr. Justice Scott's order of the 18th of August 190(5 directing the plaintiff to deposit Rs. 1000 is a distinct finding on the issue in the negative. How can the defendant be now allowed to go behind the order and say that although Mr. Justice Scott found that the plaintiff had no property in British India still I say she must be hold to be entitled to the properties she claimed simply because she once claimed them although the Court has held that her claim was not correct and that she was not possessed of any property in British India. When I pointed out this view of the question to the defendant's Solicitor he said the section of the Code required that the plaintiff should be possessed of sufficient immoveablo property. Mr. Jamietram must remember that the question of sufficiency is nowhere raised in the affidavit and did not form the subject of discussion before Mr. Justice Scott. The security the learned Judge ordered was Rs. 1000. These properties are valued at Rs. 1800 and if there was merely a question of sufficiency I have no doubt the learned Judge if he had found that the plaintiff was entitled to or possessed of the properties in question he would have considered them quite sufficient.
13. Because a party claims or has at one time claimed to be entitled to property it does not follow that she is entitled to such property more particularly when that property is in the hands of another party who on fairly arguable grounds denies her claim to those properties. In this case it is the defendant herself who has all along stoutly maintained that the plaintiff is not entitled to the properties claimed by her in her petition and affidavit. Although she instructs her solicitor to oppose this aplication on the ground of the plaintiff's claim to these properties she is not even now prepared to take a somersault and say that the plaintiff's claim is good, that she really is entitled to these properties and it is therefore that she ought not to be allowed to sue in forma pauperis.
14. The position taken up by the defendant is in my opinion quite untenable.
15. I find that the applicant is not entitled to property worth Rs. 100 and I grant her application for leave to continue the suit in forma pauperis.
16. I make the costs both of the petitioner and the respondent of the proceedings before the Prothonotary and before me in Chambers costs in the cause, i.e. in Suit No. 458 of 1905.