1. The petitioner's mother filed an application to sue in forma pauperis but died during the pendency of that application. Before the attention of the Court was drawn to the fact that she Was dead, the legal representative, the present petitioner, filed an application to be brought on record as her legal representative in the application to sue in forma pauperis. The lower Court held that as the application to sue in forma pauperis was a personal one, the petition abated with the death of the applicant and that the present petitioner could not continue the application of her mother. He therefore dismissed his application and also the petition of the petitioner's mother to sue in forma pauperis.
2. It is not denied by Mr. Ramamurthi for the petitioner that the right to sue in forma pauperis is a personal one. It would therefore follow from Order 22, Rules 1 and 3, Civil Procedure Code, that the petitioner could not be brought on record in her mother's petition. The petitioner' however requests that her mother's application to sue in forma pauperis may be regarded as a presentation of the plaint without court-fee and that the privilege that would have been granted to her mother under Section 149, Civil Procedure Code, to pay court-fee if she had been found not to be a pauper may be accorded to her also. There is no provision made in Order 33 for giving time to a pauper to pay court-fee after his application has been dismissed; but presumably a Court regards an application to sue in forma pauperis--with which a plaint is necessarily filed--as a presentation of the plaint without court-fee, and if the request to be given time to pay court-fee is made at the time when the application is being dismissed, then the plaint is regarded as being still on record, and time can be granted under Section 149. The difficulty of the legal representative is that some interval necessarily elapses between the death of the person who presented the application to sue in forma pauperis and the appearance of the legal representative. As soon as the original applicant dies, the application abates, and during the interval between the death of the original applicant, and the appearance of the legal representative there would be no plaint before the Court; and so it would not be possible for the Court to overlook that break and to regard the plaint as having been presented by the legal representative on the day when the original applicant filed it.
3. The right of a legal representative to continue an application to sue in forma pauperis was fully considered by Srinivasa Aiyangar, J. in Subbiah v. Sundara Boyamma (1927) 54 M.L.J. 582 : I.L.R. Mad. 697 and he held that the legal representative had no such right. Mr. Ramamurthi relies on certain observations of Srinivasa Aiyangar, J., as to the hardship that might result from this and to the learned Judge's remark that if the legal representative had there offered to pay court-fee some way out might have been found. If, however, a legal representative cannot continue an application made by the original applicant, I do not see how he can get the plaint ante-dated so as to Be effective from the date of the application by the original applicant. Mr. Ramamurthi also relies on a decision of Jackson, J., in In re Radhakrishna Iyer A.I.R. 1925 Mad. 819 in which it was suggested that a suit could be continued by a legal representative without paying further court-fee if he himself was a pauper, and he referred to certain earlier cases. But the question that was considered by Jackson, J., in that case and by Davar, J., in Manaji Rajuji (Rao Saheb) v. Khandoo Baloo I.L.R.(1911) 36 Bom. 279 one of the cases referred to by Jackson, J.--was whether a legal representative could continue the 'suit without paying court-fee if he himself was not a pauper. The question that we are considering in this petition did not arise there. On the other hand, in another case, referred to and approved of by Jackson, J., namely, Lalit Mohan Mandal v. Satischandra Das I.L.R.(1906) Cal. 1163 it was held by a Bench of the Calcutta High Court--as by Srinivasa Aiyangar, J., in Subbiah v. Sundara Boyamma (1927) 54 M.L.J. 582 : I.L.R. Mad. 697 that
Where there is only an application for leave to sue in forma pauperis, but no suit pending in Court, and the applicant died before the leave is granted, the right to sue as a pauper, being a personal right, cannot survive in the legal representative of the deceased applicant.
4. It was there pointed out that the possible alternatives were for the legal representative to file a fresh application to sue in forma pauperis or to institute a suit paying court-fee.
5. The decision of the lower Court seems therefore to have been right. The petition is dismissed with costs.