(1) The question for consideration in this application by way of appeal from the Master's order is whether the applicant could be deemed to be a pauper within the meaning of Or. 33 rule 1 C. P.C. The explanation to the above rule defines a 'pauper' as a person who is not possessed of sufficient means to enable him to pay the fee prescribed by law for the plaint in the suit proposed to be instituted, or, where no fee is prescribed when such person is not entitled to property worth Rs. 100 other than his necessary wearing apparel and the subject matter of the suit.
(2) The suit proposed to be instituted in this case is for petition and possession of the plaint A, B and C schedule properties and for past mesne profits of a sum of Rs. 60,000 and future mesne profits at the rate of Rs. 2500 a month. Plaint A schedule-immovable properties are of the value of Rs. 7,15,760 and B schedule immovable properties are of the value of Rs. 1,76,760, and C schedule immovable Rs. 2,60,960-80. The C schedule comprises moveable properties of the value of Rs. 10500. In all these items, the appellant claims a half share. One of the objections raised by the respondents-defendants is that the plaint claim, particularly in respect of mesne profits has been highly exaggerated and the original figure of Rs. 20000 has been increased to Rs. 6000 without any justifiable reason to get the suit filed as a pauper. That apart, the question for consideration is whether the appellant can be deemed to be a pauper, as at this stage, we have to take the claim made by the applicant as it is and consider whether she is a person without means to pay the requisite court-fee.
(3) The applicant is the daughter of one Palani Mudaliar, son of one Thanikachala Mudaliar who was possessed of very considerable properties. Thanikachala Mudaliar has executed as many as seven settlement deeds including one in favour of the applicant. Under this settlement the applicant is given of which one yields to her a rent of Rs. 100 according to her but more according to the respondents. It is nevertheless conceded by the respondents that otherwise the applicant is not possessed of any other properties or means. while she was in the box before the Master to make out her pauperism, she was put the question in cross-examination whether she was willing to hypothecate the house in favour of the defendants for the amount of the court-fee payable by her which comes to Rs. 4,800-50. The applicant was not predated to give a fortnight answer. She explained that even bankers would not come forward to take a mortgage of the life interest, that if she borrowed, it would not be possible to repay the loan from the income which she gets and that if a mortgage is effected and rents are taken away for realisation of the mortgage amount, it would not be possible for her to maintain herself. I should mention here there is already a mortgage on the life interest of the appellant in respect of which a sum of Rs. 900 is still payable.
(4) before me, Sri Thyagarajan for the respondents offered to advance the required funds for payment of court-fee at six per cent interest, which according to him, would entail a total interest per year of Rs. 300. He urged that if the applicant has any bona fide or real claim, she should not stand raising a further mortgage on her life interest which his clients are prepared to take. I am not very sure whether, the scope of raising funds, could include or imply an offer of the nature made by the respondents to advance funds to the detriment of her maintenance and whether such an offer, has to be deemed a pauper. 'Means' certainly covers all realisable assets within a person's reach; but it is doubtful whether a right to enjoy a particular property for life by which the person entitled to enjoy the same has to eke out his livelihood from the income of such property can be considered means even if an offer is made to advance funds on such right. To my mind, it cannot be equated with the equity of redemption available to a mortgagee which certainly is an asset. The right to enjoy the property is nor normally a saleable or encumberable interest, though, as in this case, persons interested might offer to purchase or take a mortgage, not necessarily to help the vendor or mortgagor, but to place the allottee, in embarrassing circumstances.
(5) In Ponnuswami Maistry v. Venkatarama Chetti, 1961 2 MLJ 243m 'sufficient means' was explained by me to mean the capacity to raise the money necessary for payment of court-fee. But such capacity has to be considered consistent with the right which the person possesses. Where a saleable interest is available to the applicant as the son of his father, Krishnaswami Nayudu j. held in Venkatasubbu Reddi v. Kesava Reddi : AIR1950Mad297 , that he cannot be held to be a pauper without some evidence that he was not able to raise money on the security of such property. But it is a question whether she can raise money in the normal course and not under restraint.
(6) As to whether a plaintiff is a pauper or not, as pointed out by Ramesam J in Ramanuja v. Gopalan, : AIR1934Mad561 , turns upon the circumstances of each case and it cannot be laid down as an abstract proposition that in every case where the plaintiff has got a mortgage or a similar claim he cannot be regarded as a pauper. The test is not whether he has the power of raising money in the abstract, but whether in the concrete circumstances of the case he can succeed in raising anything substantial by exercising it. In Sundarathanmmal v. Paramaswami Asari. : AIR1933Mad833 where two widows of the last male owner in possession of his properties with only a life interest therein applied for leave to file a suit in forma pauperis. Walsh J. held that having regard to the practical difficulty if raising money on their life interest, the widows could plead their poverty even if they sued as trustee of an estate which was no itself a pauper.
(6-A) It seems to me that, having regard to the facts of this case, I should not take the offer of the respondents in this case to advance funds for payment of court-fee on interest which, along with the other liabilities already on the property is likely to deprive the applicant of her maintenance, as quite, bona fide; so that, despite this offer, I am inclined to consider that, as matters now stand, the applicant has to be deemed a pauper being possessed of no funds sufficient to pay the court-fee for the suit.
(7) The result is that this application has to be and is allowed and the plaint will be taken on file and numbered if it is otherwise in order as a pauper suit.
(8) Application allowed.