1. This Rule arises out of an order of the Subordinate Judge of Burdwan refusing the application of the petitioner to sue as a pauper under Order 33, Civil Procedure Code. The petitioner proposed to sue the opposite party as mutwalli with regard to certain wakf property. The learned Subordinate Judge presumably after taking the preliminary stepa laid down in Rr. 3, 4 and 5, did not reject the application. He issued notices to the opposite party and the Government Pleader and received evidence as to the proof of the pauperism of the applicant. The Government Pleader did not raise any objection as to the pauperism of the applicant. But the application was opposed by the opposite party. The value of the property sued for is over Rs. 9,000 and the ad valorem Court-fee payable on the plaint is said by the Subordinate Judge to amount to Rs. 735. The learned Subordinate Judge has held that the applicant has no property in her possession as mutwalli, but he considers that she has personal property out of which she could pay the Court-fee payable on the plaint and that she should not be allowed to sue as a pauper.
2. With regard to the question as to whether she has got any personal property the Subordinate Judge has held that she is entitled to prompt dower from her husband which she has not realized. He considers that her husband is a person capable of paying the dower debt as he has some properties and is in receipt of an allowance of Rs. 41 per month from the Government for looking after preserved monuments. The Subordinate Judge has not come to any finding as to what the amount of the prompt dower is. The Subordinate Judge was, however, of opinion that the amount of the dower, whatever it may be, should be taken into account as part of the means of plaintiff.
3. The Subordinate Judge next observes that the ornaments, belonging to the petitioner, have been under-valued. During her examination on commission at her husband's house she was asked to show her ornaments but she would not produce them saying that they were with her husband. Under the circumstances the Subordinate Judge held that the applicant had sufficient means to pay Court-fees on the plaint.
4. Taking the last point first it seems strange that without taking evidence as to the value of the ornaments of the applicant the Subordinate Judge should think that the value of the ornaments would in any way enable her to pay the Court-fee. She was not asked to produce the ornaments in a proper way and she certainly could refuse to produce her ornaments at the time of her examination. Besides if the ornaments were such as are ordinarily worn by women of her class, these ornaments could not have been taken as means enabling her to pay the prescribed fee. Ornaments which a woman ordinarily wears are of the same class of personal property as her wearing apparel. Without any finding that the ornaments were something beyond and more valuable then what a woman of her class ordinarily uses the Subordinate Judge's conclusion cannot be accepted as correct.
5. Nor can we accept his conclusion as to the dower. The explanation to Rule 1, Order 33, runs thus:
A person is a pauper when he is not possessed of sufficient means to enable him to pay the fee prescribed by law for the plaint in such suit...
6. Can a debt which is due from a third person be said to be means of which the applicant is possessed? We do not think that it can be said to be so. The words 'is not possessed of' must mean that the applicant has not actual control over it. I Whether the husband has sufficient means to pay the debt is another question. But the plaintiff is not possessed of the dower. On this ground we hold that the Subordinate Judge's conclusion that the applicant was possessed of sufficient means of her own so as to enable her to pay the prescribed fee is not correct.
7. With regard to the first point we are of opinion that when a plaintiff sues in a representative character, such as a mutwalli, trustee or a shebait, unless it is shown that the plaintiff has in his possession property belonging to the wakf estate or trust or the idol for whom he sues, sufficient to enable him to pay the requisite Court-fee prescribed by law he may be allowed to sue as a pauper even if it is shown that he has sufficient personal property of his own. The capacity of a person suing in a representative character must be kept distinct from his personal capacity. If a person sues as executor with regard to the estate of a deceased person without having been in possession of any of the assets of the deceased he cannot be said not to be a pauper even if he has got sufficient private means of his own, but is not possessed of anything appertaining to the estate.
8. The decision of the Subordinate Judge on both the points cannot, in our opinion, be upheld. The Rule must therefore be made absolute and the petitioner should be allowed to sue as a pauper.
9. The petitioner is entitled to her costs as against the opposite party. Hearing-fee three gold mohurs.