Kumaraswami Sastri, J.
1. The plaintiffs who are the petitioners sued for a declaration that the consent decree in O.S. No. 442 of 1910 and the Karar dated 30th April 1912 are not valid and also for a declaration that the properties specified in the plaint are tarwad properties. They paid a court-fee stamp of Rs. 10 treating the suit as one for a mere declaration. The Subordinate Judge directed that an ad valorem fee should be paid on Rs. 18,000 the value of the properties as set out in the plaint. The fee payable would be Rs. 715 and the petitioners alleging that they had no property sufficient to pay the ad valorem fee directed to be paid, filed a petition to sue in forma pauperis.
2. When the petition came on for disposal the Subordinate Judge held that the suit was barred by limitation and dismissed it. Hence this revision petition.
3. The Subordinate Judge was of opinion that though all the plaintiffs were minors at the date of the transaction they seek to impeach; they are barred as there were two adult members who could have sued. It is contended by the petitioners' vakil (1) that the order directing payment of ad valorem fees was wrong (2) that the Subordinate Judge was wrong in going beyond the scope of the enquiry in Order 33 of the Code of Civil Procedure and (3) that on the tacts found, the suit will not necessarily be barred.
4. As regards the first point, it is argued by petitioners' vakil on the authority of Chingacham Vittil Sankaran Nair v. Chingacham Vittil Gopala Menon I.L.R. (1906) Mad. 18 that the Subordinate Judge was wrong in having required ad valorem fees to be paid as the suit was for a mere declaration. It is unnecessary to consider this question on the present petition which relates to the pauperism of the petitioners. If the order directing ad valorem fees to be paid was wrong the petitioners ought to have taken steps to have the order set aside. The application to sue in forma panperis proceeded on the basis that ad valorem fees had to be paid and that petitioners were unable to pay it.
5. As regards the other points raised, I am of opinion that the Subordinate Judge acted with material irregularity in dismissing the petition on the ground that it was barred.
6. The scope of the enquiry under Order 33 of the Code of Civil Procedure is primarily to determine the pauperism of the petitioners and in Govindaswami Pillai v. Municipal Council of Kumbakonam I.L.R. (1917) Mad 620 : 33 M.L.J. 577 it was held that upon an application to sue in forma pauperis the Court was not justified in determining complicated questions of law.
7. In the present case the question of limitation is not so clear as the Subordinate Judge imagines. If the karar and the razinamah were fraudulent and collusive as the plaintiffs allege the question as to when the persons who could set it aside had knowledge of the collusion or fraud becomes material. It is no answer to plaintiffs to say that there were members (defendants Nos. 11 and 21) who subsequently attained majority and who were inactive. Assuming that there were members who subsequently attained majority and could have sued, it must be shown that they aware of the fraud and kept quiet for three years afterwards. Having regard to the decision of the Privy Council in Nobin Chandra Barua v. Chandra Madhav Barua I.L.R. (1916) Cal.1 : 31 M.L.J. 886 the question whether there were persons who could by their assent or inaction bind the minor plaintiffs or give a valid discharge, is one not free from doubt or difficulty. The question of limitation is not one which could be decided off-hand on the scanty evidence before the Subordinate Judge.
8. It is no doubt true that Rule 5 clause d) of Order 33of the Code of Civil Procedure gives the Court power to reject the application to sue in forma pauperis if the allegations do not show a cause of action. It seems to me to be clear from the whole scope of Order 33 that the primary question to which the Court's attention ought to be directed is the fact of the petitioner's pauperism. If, in the course of the enquiry, it appears to be clear from the facts alleged in the petition or brought out in the evidence that the petitioner has no good subsisting cause of action the court can dismiss the petition but the Court ought not to treat the application for permission to sue as a pauper as calling for an adjudication of various questions which ought to be the subject of specific issues after all the pleadings have been filed.
9. In K. Ranganayakammal v. K. Venkatachellapathi Nayudu I.L.R. (1881) Mad. 323, it was held that a Court should not in an application to sue in forma paueris go into the merits of the claim. In Rathnam Pillai v. Pappa Pillai (1902) 13 M.L.J. 292, a Full Bench of this Court held following K, Ranganayakammal v. K. Venkatachellapathi Nayudu I.L.R. (1881) Mad 323, and overruling Vijendra Thirtha Swami v. Sudhindra Thirtha Swami I.L.R. (1895) Mad. 197 that in an enquiry under Section 409 of the old Code corresponding to Order 33 Rule 7 the Court ought not to go into the evidence as to the merits of the case. The Chief Justice was of opinion that the Munsif 'acted illegally in allowing evidence to be put on behalf of the defendants with reference to the merits of the claim of the party applying for leave to sue in forma pauperis and in dismissing the application on the ground that on the evidence on the record the applicant had no subsisting cause of action.' A similar view was taken in Sankara Ramier v. Subrahmania Aiyar : (1903)13MLJ425 . In Venkoba Rao v. Nalaraja Chetti (1909) 6 M.L.T. 359, it was held by Benson and Sankaran Nair, JJ., that an enquiry under Section 409 of the Code of Civil Procedure should be confined to the question of pauperism and should not be extended to matters touching the merits of the case. Kamrakh Nath v. Sunder Nath I.L.R. (1898) All. 299 and Vijendra Thirtha Swami v. Sudhindra Thirtha Swami I.L.R. (1895) Mad. 197 were dissented from and the Full Bench ruling in Rathnam Pillai v. Pappa Pillai (1902) 13 M.L.J. 292 was followed.
10. A similar view was taken in Debo Das v. Mohunt Ram Charun Dass Cheella 2 C.W.N. 474 which was followed in Gopal Chandra Neogy v. Bigoo Mistry (1903) 8 C.W.N. 70.
11. My attention has been called by Mr. Madhavan Nair to Subrahmanian Chatty v. Malayandi Chetty (1914) I.L.W. 668 where it was held by Hannay, J. that it was competent to the Court in an enquiry under Order 33 to go into the question as to whether the suit is barred by limitation. No reference is made by the learned Judge to the decisions of this Court referred to by me above. All that was held in Nawab Bahadur of Murshidabad v. Haris-chandra (1910) 11 I. Case 55, was that it was competent to the Court 'to interrogate the petitioner as regards the merits of the claim' obviously with a view to determine whether or not his allegations show a cause of action. It was held that in order to satisfy itself as to the existence of a subsisting cause of action the court can refer not only to the petition but also to statements made by the petitioner during the course of the enquiry. This decision is no authority for the proposition that the Court ought to frame an issue as to limitation which is often a question dependent on facts and require parties to go into the question which ought properly to be the subject matter of an issue after the plaint is admitted.
12. I am of opinion that the Subordinate judge acted with material irregularity in dismissing the petition on the ground that the claim was barred by limitation and set aside his order and direct him to dispose of the petition according to law.
13. Costs will abide and follow the result.