Vijay Pratap Singh vs Dukh Haran Nath Singh And Another

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeals Nos. 253 and 254 of 1961

Decision Date: 19 January 1962

Coram: J.C. Shah, S.K. Das, M. Hidayatullah

In this case the Supreme Court of India heard the petition of Vijay Pratap Singh against Dukh Haran Nath Singh and another. The judgment was delivered on 19 January 1962. The Bench consisted of Justice J.C. Shah, Justice S.K. Das and Justice M. Hidayatullah, and the report was authored by Justice J.C. Shah. The citation of the decision is 1962 AIR 941 and 1962 SCR Supplement (2) 675. The matters raised concerned an application to sue in forma pauperis, the jurisdiction of the courts to entertain such an application, and the question whether a person other than the original applicant could be transposed as plaintiff on the ground that the claim in the original petition was personal. The factual backdrop involved the estate of Maharaja Man Singh of Ayodhya Raj. Upon the Maharaja’s death the estate passed successively to his two widows and, according to the plaintiff, thereafter to the plaintiff as a minor through his grandfather who died in 1942. The respondent claimed that he was the adopted son of the junior widow of the Maharaja and therefore the rightful heir. Vijay Pratap Singh filed a petition seeking leave to sue in forma pauperis for a declaration of title to the estate and sought to make his father, identified as R, a party to the suit. The Subordinate Judge rejected the plaintiff’s petition on the ground that it disclosed no cause of action, and also rejected R’s application to be transposed as petitioner. Both Vijay Pratap Singh and R appealed the decisions by filing revision applications before the Allahabad High Court. The Allahabad High Court upheld the rejection of the plaintiff’s application, holding that the petition did not contain any material showing that the plaintiff succeeded to the estate as the nearest male reversioner of the last male holder. The High Court also dismissed R’s application, reasoning that relief in an application to sue in forma pauperis is personal to the applicant and that no other person could be made a co‑applicant because Order 1 Rule 10 of the Code of Civil Procedure does not apply to a proceeding for permission to sue as a pauper. The Supreme Court held that Order XXXIII of the Code of Civil Procedure prescribes the procedure for instituting a suit by a pauper. Under clause 5(d) of that Order the court must determine whether the allegations in the petition disclose a cause of action, but it is not required to try the merits of the claim at that stage. The Court explained that the jurisdiction conferred by the statute is limited to ascertaining the existence of a cause of action on the basis of the allegations; it does not extend to adjudicating the substantive issues, which must be decided at the hearing of the suit itself. The Court further observed that an application to sue in forma pauperis is merely a method sanctioned by the Code for instituting a suit without payment of court fees and that no personal element attaches to such an application.

The Court explained that the proceeding begins at the moment an application for permission to sue in forma pauperis, as prescribed by Order 33 of the Code of Civil Procedure, is filed. At that stage the provisions of Order 1, rule 1 of the Code apply with the same force as they would in a suit where the court fee has been duly paid. The Court further observed that any person who wishes to be joined to a petitioner who is seeking leave to sue in forma pauperis must himself be a pauper. The request to join by transposition as an applicant must therefore be examined on its own merits and cannot be dismissed merely because the original applicant’s claim is personal to him.

These principles were applied to the appeals under consideration. The matter concerned Civil Appeals Nos 253 and 254 of 1961, which were taken to this Court by special leave from the judgment and order dated 2 May 1955 of the Allahabad High Court in Civil Revision Nos 881 and 882 of 1952. Counsel for the appellant in Appeal 253 of 1961 and for respondent No 2 in Appeal 254 of 1961 were instructed by senior advocates, as were counsel for the appellant in Appeal 254 of 1961 and for respondent No 2 in Appeal 253 of 1961. Counsel for respondent No 1 in both appeals also appeared. The judgment was delivered on 19 January 1962 by Justice Shah.

The appellant, Vijay Pratap Singh, a minor represented by his next friend Pandit Brij Mohan Misir, had filed a petition in the Court of the Subordinate Judge at Faizabad seeking leave to sue in forma pauperis. The relief claimed was a declaration of title to the Ajodhya Raj and its accretions, together with possession and mesne profits for the three years preceding the suit. The Subordinate Judge dismissed the petition on the ground that it did not disclose a cause of action. An accompanying application by Ramjiwan Misir, the father of the plaintiff and second defendant, to be transposed as a petitioner was likewise rejected. Both the plaintiff and Ramjiwan Misir then approached the Allahabad High Court, invoking its revisional jurisdiction against the orders of the Subordinate Judge, but their challenge was unsuccessful. By special leave they appealed to this Court against the High Court’s orders.

The factual backdrop presented by the plaintiff was that Maharaja Sir Man Singh, holder of the Ajodhya Raj, was a taluqdar listed in the Oudh States’ records of 1869. He died in 1870, and the estate passed to his daughter’s son, Maharaja Pratap Narain Singh, who died on 9 November 1906 leaving two widows, Suraj Kumari and Jagdamba Devi, but no direct descendant. A will dated 20 July 1891, allegedly executed by Maharaja Pratap Narain Singh, was produced. The plaintiff contended that the will was void and ineffective because it had been obtained through undue influence, coercion and fraud, and because it created a line of succession that violated the applicable law. The plaintiff sought to establish his right to the estate on this basis.

In this case the Court explained that when Maharaja Pratap Narain Singh died, the estate passed first to his senior widow Maharani Suraj Kumari, then on her death in 1927 to the second widow Maharani Jagdamba Devi, and subsequently on 18 June 1928 to Ganga Dutt Misir, the grandfather of the plaintiff. Ganga Dutt died in 1942 and the estate devolved upon his son Ram Jiwan and the plaintiff as co‑parceners in a Hindu joint family. The Court further noted that even assuming the alleged 1891 will of Maharaja Pratap Narain Singh were valid, its terms together with the Maharaja’s other acts removed the estate from the operation of Act I of 1869, thereby granting Maharani Jagdamba Devi a life estate in the property. Upon her death on 18 June 1938 the entire estate vested in Ganga Dutt; after his death the plaintiff and the second defendant became owners of the whole property as their joint ancestral property. Defendant No 1, Dukh Haran Singh, asserted that he had been adopted by Maharani Jagdamba Devi on 12 February 1909, but the Court found this claim to be wholly false, fictitious and untrue, and held that the Raj was in wrongful possession of Defendant No 1. The plaintiff alleged that his father, Ram Jiwan Misir, had been detained and confined by Defendant No 1, which prevented him from joining the plaintiff’s petition. Defendant No 1 opposed the petition, contending that it disclosed no cause of action and that, even if a cause existed, the plaintiff’s claim was barred by limitation. Initially Ram Jiwan supported the will and the alleged adoption, but by an application dated 21 April 1951 he requested to be transposed as a petitioner, claiming that his earlier statement had been obtained by coercion and contained untrue averments. The Court directed Ram Jiwan to pay the court fee payable on the plaint within ten days, warning that failure to do so would result in dismissal of his application. He did not pay the fee, but on 23 July 1951 he again applied to be transposed as a petitioner in the plaintiff’s in forma pauperis petition. The Subordinate Judge held that the petition did not disclose a cause of action and consequently rejected it. The Judge observed that the petition contained no evidence showing how the disputed estate came to be governed by the rule of inheritance under Hindu law, nor any support for the plea that the estate had lost its impartible character. Even assuming the estate had become subject to ordinary Hindu law, the Judge concluded that it did not become a partible estate that the plaintiff could inherit while his father Ram Jiwan was alive.

After the plaintiff’s application for leave to sue in forma pauperis was rejected, the petition filed by Ram Jiwan Misir was taken up for hearing. The learned judge dismissed Ram Jiwan’s petition as well, holding that transposing Ram Jiwan Misir to the position of co‑plaintiff would serve no useful purpose because the plaintiff’s earlier application had already been found defective and was liable to be rejected under Order 33, rule 5(d) of the Code of Civil Procedure. In response to the two orders issued by the Subordinate Judge, the plaintiff filed Revision Application No. 881 of 1952 and Ram Jiwan filed Revision Petition 882 of 1952.

The High Court examined the plaintiff’s petition and held that, following the death of Ganga Dutt in 1942, the estate would devolve upon Ram Jiwan Misir alone in accordance with the rule of impartibility that governed the estate’s devolution. The High Court further observed that the petition contained no allegation showing that Ganga Dutt had succeeded to the estate on the basis of being the nearest male reversioner under the ordinary Hindu law. Consequently, the Court found it unnecessary to consider whether the will executed by Maharaja Pratap Narain might have removed the estate from the operation of the Act, because the plaintiff did not rely upon that will; any reference to the will in the petition was merely a response to a possible contention by the defendant.

Turning to the petition of Ram Jiwan Misir, the High Court noted that a request to sue in forma pauperis seeks relief personal to the applicant and therefore no other person could be properly made a co‑applicant. The Court explained that there is no direct statutory provision authorising the transposition of a party from one side of a proceeding to the other. While Order 1, rule 10 of the Code of Civil Procedure empowers a court to strike out or add parties when a party has been improperly joined, omitted, or is necessary for the complete adjudication of the suit, the High Court held that those provisions did not extend to proceedings concerning an application for permission to sue as a pauper.

The Court, however, was unable to agree with the High Court’s conclusion that the plaintiff’s petition failed to disclose a cause of action or that Order 1, rule 10 could not be invoked to transpose a party in a petition for leave to sue in forma pauperis. The plaintiff, by his plaint, had articulated an alternative case. Firstly, he contended that the will allegedly executed by Maharaja Pratap Narain on 20 July 1891 was void and ineffective, resulting in the estate devolving upon Ram Jiwan Misir and the plaintiff as members of a co‑parcenary.

In the pleading, the plaintiff first claimed that the will alleged to have been executed by Maharaja Pratap Narain on 20 July 1891 was void and ineffective, and that the estate therefore vested in Ram Jiwan and the plaintiff as members of a co‑parcenary. He further pleaded an alternative argument: even if the will were valid, the terms of the will together with other acts and declarations of Maharaja Pratap Narain Singh removed the estate from the scope of Act I of 1869. According to that alternative claim, on the death of Maharani Jagdamba Devi the property passed to Ganga Dutt, who was the nearest reversioner under Hindu law, and on Ganga Dutt’s death the estate devolved upon the plaintiff and his father Ram Jiwan Misir.

Order XXXIII of the Code of Civil Procedure governed the procedure for instituting suits by paupers. Rule 2 required that a petition for permission to sue in forma pauperis contain particular particulars, while Rule 3 prescribed the mode of presentation of the petition. Rule 4 authorised the Court to examine the applicant or his agent regarding both the merits of the case and the applicant’s property. Rule 5 stipulated that the Court must reject an application for permission to sue as a pauper

“(a) where it is not framed and presented in the manner prescribed by rules 2 and 3, or (b) where the applicant is not a pauper, or (c) where he has, within two months next before the presentation of the application, disposed of any property fraudulently or in order to be able to apply for permission to sue as a pauper, or (d) where his allegations do not show a cause of action, or (e) where he has entered into any agreement with reference to the subject matter of the proposed suit under which any other person has obtained an interest in such subject matter.”

When an application was not rejected on any of the grounds enumerated in Rule 5, Rule 6 required the Court to give notice to the opposite party and to the Government pleader and then to receive evidence that the applicant might adduce in proof of his pauperism. Rule 7 authorised the Court to consider the application where the applicant was not subject to any of the prohibitions specified in Rule 5. The Court was obligated to reject a petition whenever any of the prohibitions listed in clauses (a) to (e) of Rule 5 existed. Even if the petition was not rejected at the hearing, the Court could still dismiss it under Rule 7 if it later became satisfied that such prohibitions applied.

The record indicated that no objection was raised concerning the prohibitions in clauses (c) and (d) of Rule 5. The Subordinate Judge dismissed the objection that the petition had not been framed and presented in accordance with Rules 2 and 3, but he did not address whether the plaintiff was actually a pauper. He rejected the application solely on the ground that the pleadings did not disclose a cause of action, and the High Court affirmed that order on the same basis. By the explicit language of clause (d) of Rule 5, the Court’s concern was to determine whether the allegations contained in the petition nonetheless showed a cause of action.

In this case, the Court explained that the purpose of the rule was merely to determine whether the allegations contained in the petition, if taken as true, would give the petitioner a legal right to the relief he sought. The Court emphasized that it was not required to assess the likelihood of the petitioner’s claim succeeding; instead, it only had to be satisfied that the factual assertions, when presumed true, would constitute a cause of action. If, after accepting those allegations as true, no case for granting relief could be established, then no cause of action existed and the petition had to be dismissed. The Court further clarified that while making this determination, it could not conduct a full trial of the matters that would affect the merits of the petitioner's claim. It was not permitted to consider any defenses that the defendant might raise on the merits, nor was it authorized to embark on an extensive inquiry into complex or doubtful questions of law or fact. Consequently, when the allegations, on their face, demonstrated a cause of action, the Court was not authorized to investigate whether those allegations were factually correct or whether the petitioner would ultimately succeed in his claim. By statute, the Court’s jurisdiction was limited to ascertaining whether the petition, on its stated allegations, disclosed a cause of action; it did not extend to trying issues that were properly reserved for determination at the hearing of the suit. The Court also declined to opine on whether, upon the death of Jagdamba Devi, the estate had devolved under section 22(10) of Act I of 1869 upon Ramjiwan Misir and the plaintiff as members of a co‑parcenary. Even if that contention conflicted with the wording of section 22(10) of Act I of 1869, which the plaintiff himself relied upon, the plaintiff possessed an alternative claim that the estate had become non‑taluqdari by virtue of the will and the “acts and declaration” of Maharaja Pratap Narain. To support this alternative claim, the plaintiff relied on section 15 of Act I of 1869, as it stood before amendment by the Uttar Pradesh Act III of 1910. At the time of Maharaja Pratap Narain’s death, section 15 provided that if any taluqdar or grantee, or his heir or legatee, transferred or bequeathed all or part of his estate to a person who was not a taluqdar or grantee, and that person would not have succeeded under the provisions of the Act as an heir of an intestate estate, then the transfer and succession would be governed by the rules applicable as if the transferee or legatee had acquired the property from a non‑taluqdar. The Court noted that section 8 of Act III of 1910 later substantially modified this provision, and that section 21 of the amending Act III of 1910 gave the amended section a limited retrospective effect, subject to a proviso that the amendment would not affect suits pending at the commencement of the amending Act.

The provision that was originally contained in the Act has been substantially altered, and the amended wording now reads as follows: “If any taluqdar or grantee, or his heir or legatee, shall heretofore have transferred or bequeathed, or if any taluqdar or grantee, or his heir or legatee, shall hereafter transfer or bequeath the whole or any portion of his estate to any person who did not at the time when the transfer or bequest took effect belong to any of the classes specified in section 14, the transfer of and succession to the property so transferred or bequeathed shall be regulated by the rules which would have governed the transfer of and succession to such property if the transferee or legatee had bought the same from a person not being a taluqdar or grantee, heir or legatee.” By virtue of section 21 of the Amending Act III of 1910, this revised section was given a limited retrospective effect. The retrospective operation, however, was expressly qualified by a proviso. The proviso declares that nothing contained in the amending section shall affect any suit that was pending at the commencement of the Amending Act, nor shall it be deemed to vest in or confer upon any person any right or title to any estate, any portion thereof, or any interest therein which, at the commencement of the Amending Act, was already vested in another person who would have been entitled to retain such right or title if the amending legislation had not been enacted. Moreover, the right or title of that other person shall remain unaffected by any provision of the amended section. Counsel appearing for the first defendant, Dukh Haran Singh, argued that because the amendment operates retrospectively, the plaintiff’s contention that the taluqdari character of the state has been destroyed lacks merit. In support of this submission, counsel referred to two decisions of the Oudh Chief Court, namely Kaur Nageshar Sahai v. Shiam Bahadur and Mohammad Ali Khan v. Nisar Ali Khan. The Court, however, expressly declined to express any view on the correctness of those decisions. It was further noted that an inquiry into whether, on the basis of certain statutory provisions relied upon by the first defendant, the plaintiff might be barred from the estate is not a matter that may be entertained while considering a petition for leave to sue in forma pauperis. The true legal effect of the amended section 15 of the Oudh Estates Act I of 1869 is a complex question of law, and the Court indicated it would not resolve that question in the present stage of determining whether the petition discloses a cause of action. The Court also held that the High Court, in its earlier judgment, was in error when it observed that the plaint contained no allegation showing that Ganga Dutt succeeded to the estate because he was the nearest male reversioner under ordinary Hindu law. The plaintiff has forcefully asserted that point, and the Court noted that whether the claim to relief based on that assertion is justified must be determined at the trial of the suit, not at the stage of deciding the application to sue in forma pauperis.

In this case the Court observed that the question of whether the plaintiff’s claim to the estate should be decided at the trial stage, and not at the preliminary stage of granting leave to sue in forma pauperis, was correctly posed. The Court further held that the High Court was erroneous in concluding that an application to sue in forma pauperis necessarily sought relief personal to the applicant. An application to sue in forma pauperis is described by the Court as a procedural mechanism prescribed by the Code of Civil Procedure which permits a person who is unable to pay the fees prescribed by the Court Fees Act to institute a suit without payment of those fees. If the applicant fails to establish his status as a pauper, the application may be rejected, but the application itself contains no personal relief claim. The suit is deemed to commence at the moment the application for permission to sue in forma pauperis, as required by Order 33 of the Code of Civil Procedure, is filed, and Order 1, rule 10 of the Code applies to such a suit in the same manner as it applies to a suit in which court fees have been duly paid. The Court noted that a person who wishes to join a petitioner praying for leave to sue in forma pauperis must himself be a pauper, yet the claim to join as an applicant must be examined on its merits and cannot be dismissed merely because the claim made by the original applicant is personal to himself. Accordingly, the Court set aside both orders passed by the High Court in the revision applications.

The Court then turned to the procedural history of the litigation, noting with regret the unsatisfactory progress that had occurred over the twelve‑year period since the suit was instituted. The petition filed in July 1950 for leave to sue in forma pauperis remained undisposed by the Subordinate Judge for two years, and the High Court required three years to dispose of the revision petitions against the Subordinate Judge’s orders. After special leave was granted by this Court in March 1957, the appeal remained pending for nearly five years before being heard. Although this Court had ordered that the appeals be expedited and heard on a cyclostyled record, the record was not prepared for a long time. The Court also observed that a large number of documents were included in the books prepared for the Court’s use, yet no reference to those documents was made by counsel during the hearing. The Court expressed confidence that the case would now be taken up for hearing with the least practicable delay and disposed of in accordance with law. The Court directed that the appellants in the two appeals be awarded costs both in this Court and in the High Court, and that the costs of the trial court constitute the cost in the cause. The appeals were allowed and the matters were remitted.