V. Ramaswami, J.
1. The second defendant in O.S. 169 of 1980 on the file of the Sub-Court Tiruchirapalli, is seeking to prefer the appeal against the judgment and decree of the Court below, in forma pauperis. He has filed C.M.P. 13385 of 1984 to permit him to file the appeal as an indigent person on the: ground that he has no means to pay the court-fee. A counter affidavit has been filed by the plaintiff respondent contending that the appellant's one-fourth share in the suit properties was not disputed even in the pleadings and that, therefore, that one-fourth share cannot be treated as the subject-matter of the suit. Accordingly, the contention is that the second defendant has the means to pay either from the income referable to his one-fourth share or by sale of mortgage of that share. The suit was f fled by the plaintiff for partition and separate possession of her one- fourth share in the plaint schedule properties. According to the plaintiff, the plaint schedule properties originally belonged to one Madurai Maniakkarar. The said person had two sons by name Pandian and Chinnaswami. The first and second defendants are the two sons of Pandian. The third defendant is one of the daughters of Chinnaswami and the plaintiff is the daughter of a pre-deceased daughter of Chinnaswami. On those pleadings the plaintiff stated that she is entitled to one- fourth share and defendants 1, 2 and 3 are each entitled to one-fourth share. The third defendant supported the case of the plaintiff. However, defendants 1 and 2 contested the suit. They contended that by a release deed, marked as Ex.B2, in the case, Meenakshi, the third defendant, and the plaintiff's mother Ramayee, released whatever right, title or interest they had in the property of Madurai Maniakkarar and that, therefore, they are entitled to a half share each and the plaintiff and the third defendant are not entitled to any, share. The defendants also contended that the first and second defendants are not divided and that the entire property is in the possession of the first defendant. There is no dispute in this case, that apart from the admitted share of one-fourth in the suit properties, the second defendant had no other properties. However, it may be mentioned that as stated earlier, the second defendant was claiming one half share though the plaintiff had conceded only one-fourth share. The question, therefore, for consideration is whether the appellant could be said to be an indigent person who is not possessed of sufficient means to pay the court-fee.
2. Prior to the amendment of the Code of Civil Procedure by Act 104 of 11976, 0. XXXIII,.R. 1 as applicable in Madras, read as follows -
'Subject to the following provisions, any suit may be instituted by a pauper,
Explanation (i) A person is pauper, -
(a) When he is not possessed of sufficient means to enable him to pay the fee prescribed by law for the plaint in such suit; or
(b) where no fee is prescribed when he is not entitled to property worth one hundred rupees other than his wearing apparel and the subject-matter of the suit.
Explanation (ii): Any part of the subject-matter of the suit which the opposite party relinquishes and places at the immediate disposal of the plaintiff shall be taken into account in considering the question of the possession of sufficient means by the plaintiff.'
Explanation (iii) is not relevant for the purposes of this case and therefore it is omitted.
After the amendment in 1976, the Explanations read as follows -
Explanation 1: A person is an indigent person -
(a) if he is not possessed of sufficient means (other than property exempt from attachment in execution of a decree and the subject-matter of the suit) to enable him to pay the fee prescribed by law for the plaint in such suit; or
(b) where no such fee is prescribed, if he is not entitled to property worth one thousand rupees other than the property exempt from attachment in execution of a decree, and the subject-matter the suit.'
The earliest decisions of this Court rendered with reference to these provisions as they existed prior to 1976, considered the question as to when the subject-matter of the suit shall be excluded from consideration of the question whether the person is possessed of sufficient means to enable him to pay the fee prescribed by law for the plaint. The leading judgment on this question is that of Horwill,J. reported in Pappammal v. Seethammal, AIR 1940 Mad 754. The learned Judge held that the expression 'other than his wearing apparel and the subject-matter of the suit' in clause (b) of explanation (i) qualified only the second part, of the Explanation, namely, Explanation (i)(b) and not Explanation (i)(a). That is to say, it will apply only to a case where no fee is prescribed. However, if it is a case falling under Explanation (i)(a), in considering the question whether the person is possessed of sufficient means to enable him to pay the fee prescribed by law, the subject-matter of the suit is not excluded. However, while actually determining the question of permitting the plaintiff to sue as an indigent person, the question will have to be approached subjectively so that, though the entire subject-matter of the suit is not to be excluded in considering the question, only that property which could be disposed of by him or against which he could reasonably raise money should be taken into account in deciding whether to permit a person to sue in as an indigent person or not. Accordingly, any property in respect of which the share of the person is not disputed shall be taken into account. While so, dealing with it, whether the person is in possession of the property referable to that share and whether he is deriving any income there from and whether he can reasonably expect a market rate if he wanted to dispose of the same shall be taken into account before deciding whether he had the means to pay. These principles have been followed by Ramanujam J. in Manjini Mudaliar v. Karunanidhi, : AIR1973Mad399 ; by the Andhra Pradesh High Court in S.Z. Zare v. P. V. Muralidhar, : AIR1979AP107 and by a Division Bench of the Orissa High Court in Mala Devi v. Priyamoni Devi, : AIR1953Ori87 . Learned counsel for the petitioner also cited certain other judgments, which do not take us any further. However, by the amendment of 1976, even in respect of a case failing under clause (a) of Explanation 1, the subject-matter of the suit shall be excluded from consideration. The question, therefore, for consideration is, what is the subject-matter of a suit in the case of a partition suit. Learned counsel for the respondent strenuously contended that that share which is not disputed could not be considered to be the subject-matter of the suit. In other words, according to the learned counsel, the words 'subject-matter of the suit' in Explanation should be read as or equated to 'a subject-matter of dispute'. We could not accede this contention of the learned counsel for more than one reason. Firstly, we have to give a meaning to the words 'subject-matter of the suit' which is applicable uniformly in regard to all the suits and appeals preferred irrespective of the question whether the point to be considered is the plaintiffs means to pay the court-fee or the defendant's means to pay the court fee when he files an appeal. In the case of a plaintiff, since the question of court fee will have to be decided at the time of filing of the suit even before the written statement is filed and the right is disputed or accepted, if the suit is one for partition and separate possession of the plaintiffs share, irrespective of the allegation in the plaint whether the share is admitted or not, the subject-matter of the suit being the entirety of the property, that share of the plaintiff cannot be taken into account for the purpose of considering whether the plaintiff has the means to pay the court fee. Otherwise, in every case, irrespective of the fact whether the defendant is going to dispute the right or not, he will be liable to pay court fee in all partition suits. Secondly, in a partition suit though the share of the plaintiff or the defendant may be admitted, it could not be predicted with certainty as to which item of property belongs to that share. Until the partition is effected with reference to good and bad qualities of the soil and a share is allotted to any individual and possession is given to him, there is no certainty of the property and therefore it is not possible to say that the person is possessed of means to pay the court fee. It is true that even as an undivided share, it may be possible to dispose of a property and raise money. However, as we have stated, since explanation 1(a) definitely excludes the entire subject-matter of the suit from consideration, the admitted share also has to be excluded from consideration as that also forms the subject-matter of the suit Thirdly, we are also of the view that the words 'subject-matter of the suit' should receive a wider interpretation in the case of a partition suit so as to include the entirety of the property, and not to a case alone where the share is disputed. A similar view was expressed by a single Judge of the Andhra Pradesh High Court in G. Sreeramulu v. M. Adinarayana Rao, : AIR1985AP62 . The learne4 Judge referred to Art. 39A of the Constitution and the statutory provision and held that in order to make the constitutional and statutory benefits meaningful and the legal remedy effectual, the words 'subject-matter of the suit' shall receive extended meaning and a liberal construction has to be adopted in construing those words. The argument of the learned counsel that the first and second defendants are in, possession of the property, which is the subject-matter of the suit, that they are in receipt of the income are all irrelevant considerations, because they will have to account for their possession and income ultimately in the suit and that could not be treated as their exclusive property or right.
As already stated, if the subject-matter in a partition suit is the entirety of the property and not the disputed share alone, the possession of the property by one or other of the persons or the receipt of the income, will have no bearing on the decision as to whether the person has sufficient means or not. We are therefore of the view that the second defendant-appellant is not possessed of sufficient means to pay the court fee in the appeal and therefore he shall be pe6itted to file the appeal as an indigent person and we accordingly permit him to file the same. There will be no order as to costs in this petition.
3. Order accordingly.