Lawrence Jenkins, K.C.I.E., C.J.
1. This is an application to us under Section 622 of the Civil Procedure Code on the ground that the applicant has been improperly denied the right she claims to sue as a pauper under Chapter XXVI of the Code of Civil Procedure.
2. The case made by her is that after the death of her husband her husband's brother possessed himself of her property including the ornaments that she ordinarily was accustomed to wear, and that he retains them and refuses to return them to her.
3. She applied for leave to sue as a pauper to recover, among other things, these particular ornaments, alleging that she was not possessed of sufficient means to enable her to pay the fees prescribed by law for the plaint.
4. The Subordinate Judge has rejected her application on the ground that she must have had, at the times mentioned in his judgment, these ornaments which she had been accustomed to wear.
5. Before us it is urged that the Subordinate Judge was not entitled to take those ornaments into consideration : for that even if they had been in her possession they should have been treated as excluded by the concluding words of the Explanation to Section 401 of the Civil Procedure Code, 'other than his necessary wearing apparel and the subject-matter of the suit.'
6. In our opinion, however, those words do not apply here. We do not think that they qualify that part of the explanation which requires that the person should not be possessed of sufficient means to enable him to pay the fee prescribed by law, but only the condition that the applicant is not entitled to property worth Rs. 100.
7. Still we think that the words of the earlier condition may in many cases operate to exclude the subject-matter of the suit from consideration, and so we find it decided in Vedanta Desikacharyulu v. Perindevamma ILR (1881) Mad. 249 that a man cannot be expected to raise money on a claim which is in litigation, and if that is his only asset he cannot be described as a per-son possessed of sufficient means to enable him to pay the fee prescribed by law.
8. In our opinion the Subordinate Judge has failed to perceive that the point he had to consider was whether the applicant at the time at which the application was made, was possessed of sufficient means to enable her to pay the fees prescribed by law for the plaint, and thus his investigation is vitiated by an irregularity in the exercise of his jurisdiction, entitling us to interfere under Section 622.
9. Where it is sought to make out that what the plaintiff claims in the suit as being in the possession of the defendant, is really in the plaintiff's possession, the clearest evidence should be adduced, and ordinarily it would not be sufficient to rely on presumptions of the somewhat vague character which have found favour with the Subordinate Judge in this case.
10. If it be found that a part of the subject-matter of the suit is in the applicant's possession, then it should be distinctly determined how far the possession of that part of the subject-matter can be regarded as possession of sufficient means to enable the applicant to pay the fees prescribed by law for the plaint.
11. The result then is that we make the rule absolute and send back the case in order that it may be determined by the Judge in the light of these remarks.
12. Costs must be reserved to be dealt with on the final determination of the pauper application.