1. The first question is whether the appeal to the Lower Appellate Court should have been dismissed as out of time. It was undoubtedly first filed with proper stamp after the period allowed by the Limitation Act had expired. But appellant, having failed on 31-12-1914 in his application for leave to appeal as a pauper, on 4-1-1915 obtained three weeks' time for payment of court-fee and paid it within that period. The delay from 31-12-14 to 4-1-15 may be disregarded, because the court was closed on the days in question and the failure during them must be regarded as condoned by the subsequent order. The question is whether that order was legitimate.
2. I think that it was and with reference to more direct considerations than those afforded by Section 5, Limitation Act on which the Lower Appellate Court has to some extent relied. It has further followed the reasoning of Farran C.J. in Bai Ful v. Desai Manorbhai I.L.R. (1897) B. 880 to the effect that the decision on the appellant's pauperism disposes of his application for leave to appeal as pauper and leaves undisposed of the memorandum of appeal, which must accompany that application. The memorandum, though unstamped, is not a nullity and can be validated with effect from the date of presentation by the supply of the requisite stamp within a time fixed by the court with reference to O. VII Rule II (c). I would respectfully adopt this reasoning since it is consistent with the decisions of the Privy Council and this Court in Skinner v. William Orde I.L.R. (1897) A. 241 and Patcha Sahib v. Sub-Collector of North Arcot I.L.R. (1891) M. 78. It is of course open to the objection that Appeal memoranda in pauper cases are not usually dismissed by any order distinct from that passed on the pauperism application and not in practice returned for payment of deficient duty, as ordinary memoranda would be. But there is nothing in the ordinary practice to prevent such return where, as in this case, the appellant asks for it; and the anomaly, if any, is less than that involved in the alternative view of the law, that O. VII Rule II (c) is inapplicable and the dismissal of the pauper application in effect entails dismissal of the appeal, since time would hardly ever be left for its presentation after the dismissal proceedings.
3. His Lordship next deals with the merits.
Sadasiva Aiyar, J.
4. (After dealing with the merits) Mr. Govindaragava Aiyar rightly brought to our notice what I consider to be a serious error made by the learned District Judge. The District Munsif stated in his judgment that, it is admitted that the plaint properties did not form' the subject-matter of the division between the plaintiff's father and the 1st defendant in 1910. It is clear to my mind that the District Munsif referred to an admission made in the course of the arguments before him. The District Judge says in his judgment that 'the conclusion of the Munsif' (about the 1st defendant's right by survivorship) ' appears to be vitiated by the fact that there is no admission by the plaintiff in the plaint' (italics are mine) ' that the property claimed did not form the subject matter of the division between the father of the plaintiff and the 1st defendant in 1910.' The District Munsif did not state that the admission was made in the plaint and it is clear from subsequent statements of the plaintiff himself in answer to interrogatories that the property did not form the subject matter of the division referred to. A statement in a judgment as to an admission made before the Court of First Instance should not be doubted lightly by the Appellate Court, especially in the absence of an affidavit by the vakil who appeared in the Court of First Instance. But this error of the District Court does not affect the legal validity of its order of remand.
5. I shall now briefly consider the final weapon of attack employed by Mr. Govindaragava Aiyar against the Lower Appellate Court's judgment, namely, that the appeal to that court ought to have been dismissed by that court as barred by limitation. The appeal memorandum was filed by the plaintiff in the District Court on the 8th September 1914 with the 30 days granted by Article 152 of the Limitation Act, (excluding the time required for obtaining copies of judgment and decree). But he wished to appeal as a pauper and hence, he, in accordance with Order 44 Rule 1, presented a separate application on the same date to be allowed to appeal as a pauper. His application was rejected on 31st December 1914 during the Christmas holidays. (I must here deprecate the practice of pronouncing decisions during the Christmas holidays for the purpose of swelling the statistics of disposal). On the re-opening day (4-1-1915), the plaintiff wanted time to pay the necessary court-fees on the appeal memorandum and he was given time till 25th January '15 and he complied with that order. Mr. Govindaragava Aiyar argued that when the application to appeal as a pauper was rejected on 31-12-1914, the unstamped appeal memorandum also must be deemed to have been rejected and there was no jurisdiction in the District Court to pass any orders relating to it on 4-1-1915. The chain of argument was somewhat as follows:--' Order 44 Rule 1 states that the provisions relating to suits by paupers shall be applied as far as possible to applications to appeal as pauper. Order 33 Rule 15 provides that when an order is passed refusing to allow an applicant to sue as a pauper, he cannot file another application of the same nature and he can only bring a suit in the ordinary manner, (which should of course, on the date of its institution fall within the limitation period prescribed for the suit). Hence, when the application to appeal as a pauper was rejected, the only remedy of the appellant was to file a fresh memorandum of appeal on the proper stamp subject to the law of limitation. 'When the plaintiff paid the proper stamp duty in January '15, the old memorandum of appeal should be treated as a fresh memorandum presented in proper form on that day. But on that day, the appeal was barred by limitation ', I am unable to accept the validity of the above argument. In the first place, the provisions relating to pauper suits are to be applied to pauper appeals only ' so far as those provisions are applicable' (Order 44 Rule 1). While the plaint in a pauper suit forms an integral portion of the pauper application itself (see Order 33 Rule 2), the memorandum of appeal presented by an alleged pauper is a different paper in the Court's record from the application for permission to appeal as a pauper though the two are to be presented together. (See Order 44, Rule 1). While it might therefore be legitimately argued that the rejection of the application to sue as a pauper carries with it the rejection of the plaint contained in that application and hence Order 33 Rule 15 leaves to the applicant as sole remedy the bringing of a fresh suit in the ordinary form, the rejection of the application to appeal as a pauper leaves the separate memorandum of appeal intact. It was, no doubt, unstamped and the duty of the Court is fas pointed out in Achut Ramachandra v. Nagappa Bal Badrya I.L.R. (1918) B. 41, to direct the appellant to pay the proper stamp duty within the time fixed by the Court (see also Order 7 Rule 11 Clause (e) and Section 149 of the Civil Procedure Code corresponding to but much wider in its terms as regards the discretion given to the Court than the old Section 582 A.). As pointed out by my learned brother during the course of the argument, if the rejection of the application to appeal as a pauper ipso facto carried with it the rejection of the memorandum of appeal, the right conceded as reserved to him to file a fresh memorandum of appeal on the proper stamp would be almost wholly illusory as the 30 days fixed for the filing of an appeal would have expired before the application is disposed in the usual course after notice to the other side and to the Collector (where the suit itself was not brought by the plaintiff as a pauper). (See also observations in page 929 and 930 of Durgacharan Naskar v. Dookhiram Naskar I.L.R. (1899) B. 856 and Bai Ful v. Desai Manor Bhai I.L.R. (1897) C. 925. The limitation periods for suits scale up to 60 years and a person who wishes to sue as a pauper might be expected by the legislature to file his paper containing his plaint allegations and the application for leave to sue as a pauper) in sufficient time before the expiry of the limitation period to permit his bringing a fresh suit within the limitation period if his application is finally rejected. This cannot be reasonably expected of a person who wishes to appeal as a pauper. I am therefore prepared to follow the opinion of Farran, C.J. in Bai Ful v. Desa Manor Bhai I.L.R. (1897) C. 925, that ' the District Judge was under no legal obligation to dismiss the appeal presented by the appellant when he refused leave to the appellant to appeal as a pauper.' This Court in Marea Thangathammal v. Iravatheeswara Aiyar (1915) M.W.N. 228, seems to have gone so far as to decide that even in the case of an application to sue as pauper, the amendment of the plaint contained in the application to sue as a pauper does not prevent the court from treating the unstamped amended plaint forming part of the application as a plaint filed on the original date of the presentation of the application and does not prevent the granting of time to pay the necessary court fees thereon so as to make the amended plaint become a validly stamped plaint presented on the original date. The distinction between the filing of the application for leave to appeal as a pauper and the filing of the appeal memorandum is further indicated by two separate articles of the Limitation Act (152 and 170) dealing with them. I would, in this connection suggest that there might be a rule framed that when-ever an application to appeal as a pauper is rejected, the court should at once pass an order granting reasonable time to the appellant to pay the stamp duty due on the memorandum of appeal. I have no doubt that the District Judge would have passed such an order in this case on the date of the order rejecting the application if the matter had been brought to his notice.
6. The District Munsif ought to have taken evidence and come to a conclusion on the evidence (and on the law applicable) as to the extent and nature of the rights, if any, which the plaintiff's father owned in his plaint properties at his death and the plains tiff's right to inherit a share therein.
7. In the result I would dismiss the appeal except on the minor question of the Vakil's fees to be allowed in the Lower Appellate Court. The Appellant who has substantially failed must pay the respondents' costs.