Pakenham Walsh, J.
1. The petitioners before me are the two widows of one Sundaram Asari, who died in 1922.
2. By a will he left instructions that the widows should pay off the debts in E Schedule to the will by the outstandings due in D Schedule. In this matter the two sons of his two elder brothers were to assist them. Receipts were to be granted in the names of both the widows and the surplus invested in their names. He also contemplated that with this surplus lands should be purchased in the names of both the widows in which they should have a life-interest in equal shares.
3. The house and ground shown in A Schedule was similarly to be enjoyed by them in equal shares as a life-interest.
4. Widow No. 1 was to have B Schedule vessels and jewels, and widow No. 2 C Schedule vessels and jewels but again without power of alienation.
5. Till the immovable properties proposed to be purchased by the balance of outstandings were purchased, the widows were to realise in equal shares the interest from the surplus and use it for their maintenance.
6. The will in fact put the widows in no better position than they would have been in without it. They simply got a life-interest in the deceased's property and nothing more.
7. They sought permission to file a suit in forma pauperis on a mortgage executed in 1916 to their deceased husband.
8. An enquiry into their pauperism was held. The Crown did not oppose but the Defendants objected and the claim was disallowed. Against the order the widows have preferred this revision petition.
9. The 1st Petitioner was the only witness examined on either side.
10. As regards the collection of outstandings the will mentions; outstandings of Rs. 3,650 (Schedule D) and debts of Rs. 1,215 (Schedule E).
11. Assuming that both were collected and paid out in full, the surplus would be Rs. 2,435.
12. The only immovable property purchased after the death of Sundaram Asari is a portion of a house under Ex. I for Rs. 1,000.
13. The 1st Petitioner has explained this purchase thus. There was a partition between her husband and his brothers and her husband had also purchased the share of his elder brother so that he was entitled to two shares. At the time of his death, however, he was in possession of only one share, the other share having been sold for a debt under a Court auction sale and being in the possession of third parties. On his death the widows resided in the share still possessed by their husband at his death, and subsequently they re-purchased the other share of the house under Ex. I.
14. The learned District Munsif found that the two shares are worth Rs. 2,000 on 1st Petitioner's own evidence.
15. I have perused the sale deed Ex. I and it is clear that the whole purchase price consists of two debts due directly to the deceased Sundaram Asari so that none of it represents savings from the income of the estate made by the widows.
16. As regards utensils and jewels the 1st Petitioner was left such articles to the value of Rs. 345 and 2nd Petitioner to the value of Rs. 424, but 1st Petitioner has sworn that they have had to sell those articles to maintain themselves and are now paupers. There is no evidence contra. It will be noticed that even the sale of these jewels and utensils was beyond the power of the widows under the will.
17. The learned District Munsif refused to allow the pauper application, (1) because the Petitioners are in possession of sufficiently valuable estate left by Sundaram Asari; (2) the suit is filed on behalf of the estate and the estate is not a pauper.
18. With regard to ground (1) the possession is only that of persons with a life-interest on which it would be almost impossible to borrow any money. It is argued for Respondents that to save the estate necessary expenses may be incurred even by selling part of the property. I feel doubtful if any purchaser could be found to buy property under a title of this sort which the reversioners would be sure to attack. Rajagopala Gramani v. Baggiammal I.L.R. (1932) 56 Mad. 508 : 64 M.L.J. 235 is quoted for Respondents in this connection, but that was a question whether the Court could not sanction an advance out of an estate for the benefit of the minor under its extraordinary powers. That is a very different matter from widows alienating immovable property in which they have only a life-interest in order to raise funds to recover a debt due to their deceased husband's estate.
19. It is not, to my mind, so much a question whether they have this power in the abstract, but whether in the concrete circumstances of this case they could succeed in raising anything substantial by exercising it.
20. On the second point that they represent the estate which is not a pauper, In re Mary Ann Bills I.L.R. (1884) 7 Mad. 390 is quoted for the Petitioners.
21. It was there held that the administrator of the estate of a deceased person can apply to sue in forma pauperis under the provision of Chap. XXVI of the Civil Procedure Code, 1882. It was held that the English rule in the matter did not apply in India and that the Procedure Code does not exclude persons holding a fiduciary character from suing in forma pauperis. No later decision to the contrary has been shown me and I must follow this ruling, so that the Lower Court's second ground for refusal is wrong.
22. Although the finding of pauperism is one of fact, I think the Lower Court had no real evidence to come to the conclusion it did. The uncontradicted evidence of 1st Petitioner shows that the widows are paupers and they can plead this even if they sue as trustees of an estate which is not a pauper.
23. It was urged in the alternative before me that the Lower Court should at least have given them time to pay the Court-fees. Stuart Skinner alias Nawab Mirza v. William Orde and Thangathammal v. Iravatheswara Iyer 1915 M.W.N. 228 are quoted in this connection. Neither of these decisions seems to go as far as saying that time must be granted, but it does appear from them that though the pauper application be dismissed, the plaint is still pending until it is actually dismissed and that if the Court fees are paid, limitation will count from the date of the presentation of the petition which will be regarded as the date of the plaint.
24. It is certainly customary to allow some time to pay the Court-fees when a pauper application is dismissed. However the matter does not really arise in the view which I take of the main question.
25. In the result I allow the petition with costs and the Petitioners will be allowed to file the suit in forma pauperis.