G. Ramanujam, J.
1. This appeal is directed against the order of the lower Court rejecting the appellant's petition for leave to institute the suit as an indigent person.
2. The appellant has filed a suit for cancellation of two settlement deeds executed by him in favour of his wife and son. The court-fee payable on the plaint comes to Rs. 3,001. The appellant, in his application for permission to institute the suit as an indigent person, claimed that he has no property other than the proper ties covered by the suit and therefore be should be permitted to sue as an indigent person.
3. However, the application for permission to sue as an indigent person was opposed by the first respondent herein, who is no other than the son of the appellant. His case was that the appellant is in possession of the house and other landed properties covered by the two settlement deeds, deriving much income therefrom and that apart from this, he is also doing money-lending business. It was also alleged by him that immediately after retirement, the appellant got about Rs. 18,000 as Provident Fund and Gratuity from the B. &. C. Mills and therefore the appellant cannot be given leave to institute the suit as an indigent person.
4. The Court below, relying on the decision of the Allahabad High Court in Fakruddin v. Iqbal Ahamed A.I.R. 1957 All. 680 : : AIR1957All680 . held that the subject-matter of the suit can also be taken into consideration in ascertaining the means of the petitioner if it is in his possession and yielding income. It has been held in the said decision that when the Court has to consider whether the plaintiff is not entitled to property worth Rs. 100 the subject-matter of the suit is to be ignored, but it does not follow that it has got to be ignored, in other cases in which the Court has to consider whether the plaintiff has sufficient means to enable him to pay he fee, and that if he is in possession of the suit property or a part of it, it must certainly be taken into consideration in ascertaining his means, because the property is part of his 'means,' but the Court cannot go further and insist upon taking into consideration the subject-matter of the suit even when the plaintiff is not in possession of it. The Court has also taken the view than the word 'means' is by no means identical with 'property' and that it would not have been quite appropriate to exclude the subject-matter of the suit from the scope of the 'means' and the court-fee is payable in cash, but it is not essential for a plaintiff to be in possession of so much of cash in order to be able to pay the fee, and that if he has sufficient means, he can raise the necessary cash for payment of the fee, in which case he cannot be declared as a pauper. Thus, the Court below after having held that the appellant has no property other than the properties covered by the suit intended to be filed, held that the subject-matter of the suit being a vast extent of property, the appellant cannot be allowed to sue as an indigent person. In this appeal, the learned Counsel for the appellant relies on Explanation 1 introduced in Rule 1 of Order 33 of the Code of Civil Procedure, Central Act CIV of 1976, in support of his submission that the subject matter of the suit cannot be taken into account at all. That Explanation is as follows-
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 of the suit.
According to Explanation 1(a) while deciding the question whether the petitioner who seeks to institute a suit as an indigent person has sufficient means or not, the subject-matter of the suit is to be excluded. In view of this specific provision, the decision in Fakruddin v. Iqbal Ahamed A.I.R. 1957 All. 680 : : AIR1957All680 . which is directly opposed to the statutory provision above referred to, cannot be followed. That was a decision rendered in 1957, long before the amendment to Order 33, Rule 1, Civil Procedure Code, which now specifically provides that the subject-matter of the suit has to be excluded from consideration while determining the question as to whether the petitioner seeking leave to institute the suit as an indigent person has sufficient means or not.
5. In this case, it has not been shown by the first respondent that apart from the suit properties there is any other immovable, property owned or possessed by the appellant Though an allegation has been made that the appellant, at the time of the retirement from B. & C. Mills, got a sum of Rs. 18,000 the appellant's case is that the said sum was utilised substantially for the purchase of some of the items of properties covered by the suit and therefore he has no cash on hand as at present. As the appellant has not been, shown to own or possess any other property other than the properties covered by the suit, which are to be excluded the appellant has to be granted leave for instituting the suit as an indigent person.
6. The appeal is therefore allowed and O.P. No. 139 of 1977 on the file of Sub-Court, Vellore, filed by the appellant for leave to file the suit as an indigent person will stand allowed. There will be no order as to costs.