Norman Macleod, Kt., C.J.
1. The applicant presented a petition to the Court to be allowed to file her suit in forma pauperis. Objection was taken by the respondent that the applicant was a minor. If she was a minor, then she could not make any application, and the question whether she was a pauper or not could not arise. Unfortunately the Judge having come to the conclusion that the applicant was a minor, also went on to deal with the question whether she was a pauper. Although we think that part of the order which directs that the applicant might bring a suit by her next friend was perfectly correct, we think that the Judge ought not to have directed that proper Court-fees must be paid on such suit and thereby determined the question of pauperism. It is, therefore, necessary for us to express an opinion on the question whether in that decision the Judge was wrong. Under the Explanation to Order XXXIII, rule 1, a person is a 'pauper' when he is not possessed of sufficient means to enable him to pay the fee prescribed by law for the plaint, or, where no such fee is prescribed, when he is not entitled to property worth Rs. 100 other than his necessary wearing apparel and the subject-matter of the suit. In this case a fee was prescribed for the plaint. The defendant in order to get rid of the contention of the applicant that she was a pauper, produced certain ornaments and cash which he admitted belonged to the applicant worth about Rs. 600, and said that he was willing to give them to the applicant, and therefore, she was possessed of sufficient means to pay the fees. The applicant intended to claim in her suit a much larger amount than what was admitted to be due by the defendant. I do not think it can be said that owing to the defendant's offer the plaintiff was possessed of sufficient means to pay the prescribed fee. In a suit where no fee is prescribed by law for the plaint, no admission or even payment into Court by the defendant can be taken into consideration.
2. In Dwarkanath Narayan v. Madhavrav Vishvanath I.L.R. (1886) 10 Bom. 207 the defendant produced in Court, on an application by the plaintiff' to sue as a pauper, certain of the articles which were claimed, and the learned Judge seemed to be of opinion that it made no difference whether a fee was prescribed for the plaint or not. If any part of the subject-matter of the suit was paid into or deposited in Court it ceased to belong to the subject-matter of the suit and became the property of the plaintiff.
3. In Fatmabai v. Dossabhoy Rustomji Umrigar I.L.R. (1909) 34 Bom. 638 : 12 Bom. L.R. 102 while sitting on the Original Side, I declined, with all due respect, to follow that decision. To this extent I can agree with the learned Judge that whether a fee is prescribed or not the subject-matter of the suit cannot be taken into consideration in calculating the plaintiff's means. But in my opinion that protection continues during the whole course of the proceedings, so that an application to sue as a pauper in either case cannot be rejected merely because the opponent pays in or deposits in Court part of the claim. The applicant is not obliged to take out of Court what is deposited or paid in, and cannot, therefore, if he chooses to allow the deposit or payment made in Court to remain there, be said to be possessed of means to pay the Court fees as if the deposit or payment were actually in his possession. The time when the application is made to institute a suit as a pauper, is the point of time which the Court has to consider when the application comes to be dealt with, and the subject-matter of the suit is in no case at the disposal of the applicant for payment of fees. If, however, at any point of time afterwards it is alleged that the applicant has become possessed of sufficient means to pay the fees, then no doubt when that fact is brought to the notice of the Court, the question of pauperism would be reconsidered, and the party once held to be a pauper might be directed to pay the Court-fees. In this case, therefore, we direct that it is open now to the applicant, through her next friend, to make an application to tile a suit as a pauper, and that application must be dealt with on the lines we have now laid down. If no further application is made, the applicant must pay the costs of this application. If the application is filed through her next friend, and if the application is admitted, then the costs will be costs in the suit.
4. I concur.