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Mt. Kanizum Hani Vs. Syed Mohammad and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1933All556
AppellantMt. Kanizum Hani
RespondentSyed Mohammad and ors.
Excerpt:
- - the learned subordinate judge held that the applicant had failed to prove that she was a pauper, and therefore dismissed the application. the learned subordinate judge considered that mohammad muttaqi, the grandfather of the applicant, was a fairly well-to-do man and could pay the court-fee of rs. a per- son may have rich relations, and yet he or she herself may not be in a position to pay the court-fee. the learned subordinate judge should have directed his attention to this matter only and should not have gone into the question whether or not the alleged rich relations of the applicant were in a position to pay the court-fee which the applicant would have to pay......one mohammad muttaqi, who is the grandfather of the applicant, was also examined as a witness. the learned subordinate judge held that the applicant had failed to prove that she was a pauper, and therefore dismissed the application. the applicant has preferred' the present application for revision.2. we have heard the learned counsel: on both sides and are of opinion that the order passed by the learned subordinate judge is not correct. the point which he had to decide was whether or not the applicant had been able to-establish that she was a pauper. but. the learned subordinate judge instead of dealing with this point on the evidence produced before him, went into the question of the status and income of the various relations of the minor applicant. when mohammad muttaqi was in the.....
Judgment:

Rachhpal Singh, J.

1. This is an application in revision against the order by the Court below dismissing an application of Mt. Kuniz Umi Hani praying for permission to sue as a pauper. One Mirza Abid Ali Beg made a wakf under a registered deed on 3rd November 1887. After the creation of the-wakf certain transfers were made by some of the 'mutawallis.' The applicant, who is about seven months old,, claiming to be a beneficiary under the wakf asked permission to sue as a pauper in order to have the alienations made by the mutawallis set aside The application was opposed by the Government and also by the opposite party. The mother of the applicant was examined by the Court after the application had been presented. One Mohammad Muttaqi, who is the grandfather of the applicant, was also examined as a witness. The learned Subordinate Judge held that the applicant had failed to prove that she was a pauper, and therefore dismissed the application. The applicant has preferred' the present application for revision.

2. We have heard the learned Counsel: on both sides and are of opinion that the order passed by the learned Subordinate Judge is not correct. The point which he had to decide was whether or not the applicant had been able to-establish that she was a pauper. But. the learned Subordinate Judge instead of dealing with this point on the evidence produced before him, went into the question of the status and income of the various relations of the minor applicant. When Mohammad Muttaqi was in the witness-box, questions were put to him by the opposite party in order to show that he had sufficient means and that he could pay the court-fee. The learned Subordinate Judge considered that Mohammad Muttaqi, the grandfather of the applicant, was a fairly well-to-do man and could pay the court-fee of Rs. 1,165. He remarks in his order about the admission made by Mohammad Muttaqi that he was interested in applicant's case. The fact that Mohammad Muttaqi is interested in the case of the applicant-does not, in any way, affect the application made by the applicant. A per- son may have rich relations, and yet he or she herself may not be in a position to pay the court-fee. The learned Subordinate Judge should have directed his attention to this matter only and should not have gone into the question whether or not the alleged rich relations of the applicant were in a position to pay the court-fee which the applicant would have to pay. There was no suggestion on behalf of the opposite-party that the applicant was possessed of any means, whatsoever. The property, in respect of which she wants to sue, is wakf property which cannot be taken into consideration in. deciding the question of pauperism or otherwise of the applicant. The learned Subordinate Judge, in our opinion, acted illegally in the exercise of his jurisdiction within the meaning of Section 115(c), Civil P.C.

3. We therefore allow this application, set aside the order passed by the Court below, and permit the applicant to sue as a pauper. The costs of this application will be paid by the opposite-party.


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