Oldfield, J.
1. The first question is whether the appeal to the Lower Appellate Court should have been dismissed as out of time. It was undoubtedly first filed with a proper stamp after the period allowed by the Limitation Act had expired. But appellant having failed on 31st December 1914 in his application for leave to appeal as a pauper, on 4th January 1915 obtained three weeks' time for payment of court-fee and paid. it within that period. The delay from 31st December 1914 to 4th January 1915 may be disregarded, because the Court was closed on the days in question and the failure during them must be regarded as condoned by the subsequent order. The question is whether that order was legitimate.
2. I think that it was, and with reference to more direct considerations than those afforded by Section 5, Limitation Act, the Lower Appellate Court has to some extent relied (sic) the reasoning of Farran, C.J., in Bai Ful v. Desai Manorbhai I.L.R. (1898) Bom. 849 to the effect that the decision on the appellant's pauperism disposes Only of his application for leave to appeal as a pauper and leaves undisposed of the memo randum of appeal, which must accompany that application. The memorandum, though unstamped, is not a nullity and can be validated with effect from the date of presentation by the supply of the requisite stamp within a time fixed by the Court with reference to Order VII, Rule 11(c). I would respectfully adopt this reasoning, since it is consistent with the decisions of the Privy Council and this Court in Skinner v. William Orde I.L.R. (1879) All. 241 and Patcha Sahib v. Sub-Collector of North Arcot I.L.R. (1892) Mad. 78. It is of course open to the objection that appeal memoranda in pauper cases, are not usually dismissed by any order distinct from that passed on the pauperism application and are not in practice returned for payment of deficient duty, as ordinary memoranda would be. But there is nothing in the ordinary practice to prevent such return, where, as in this case, the appellant asks for it; and the anomaly, if any, is less than that involved in the alternative view of the law, that Order VII, Rule 11(c) is inapplicable and the dismissal of the pauper application in effect entails dismissal of the appeal, since time would hardly ever be left for its presentation after the dismissal proceedings.
3. Next, as to the merits, the Court of First Instance dismissed plaintiff's suit on the pleadings, and the Lower Appellate Court remanded it for trial in the order under appeal. In doing so, it, no doubt, made one mistake. For, it referred to the absence from the plaint, of any admission regarding the exclusion of the suit properties from the partition of 1910 as conclusive, although the Court of First Instance stated explicitly that such an admission had been made before it. As such an admission was contained in the subsequent answers to second defendant's interrogatories, we have no difficulty in assuming that one was made at the hearing. That mistake had however very little influence on the decision. Plaintiff, as appears from his affidavit in connection with the revision of the issues, tacitly abandoned his objections to the partition of 1876 at the hearing. Suing as divided from his father and first defendant, he could be entitled only by inheritance from the former to a half share in his separate property. If, notwithstanding that the suit property was in second defendant's name, it had not really been conveyed to her., before the father's death, the alternative is not, as the Court of First Instance held, only that it was the joint family property of the father and Second defendant, which had been left undivided in 1910. It might, as matter of law, be argued in accordance with the principle implied in Appovier v. Rama Subba Aiyan (1866) 11 M.I.A. 75 that, a separation in status having been intended, undivided items were held by the father and second defendant as tenants-in-common j or again that the suit items were in fact the father's separate property throughout. And, if either of these cases were established, plaintiff would be entitled by inheritance to a share, in the former case to half of the father's undivided half share, in the latter to half of the whole. The Lower Appellate Court's decision was correct on this point and must be confirmed.
4. There remains a minor matter, referred to in appeal ground 7, regarding which there is no dispute. It is admitted that the Lower Appellate Court should have allowed only Rs. 15, the amount certified by the pleader, not Rs. 43, for the plaintiff's costs before it. The Lower Appellate Court's decree must be amended accordingly. It is in other respects confirmed. The 'appeal has succeeded in respect only of an insignificant matter, which the Lower Appellate Court would probably have corrected, if application had been made to it. Second defendant will pay plaintiff's costs in this Court.
Sadasiva Ayyar, J.
5. The second defendant is the appellant before us, this being an appeal against an order of remand passed by the District Judge of Tinnevelly, the District Munsif having dismissed the plaintiff's suit on the ground that the plain tiff's claim was legally unsupportable.
6. Mr. Govindaraghava Ayyar for the appellant employed much dialectical skill in the analysis of the plaint allegations. He argued that the plaint in the suit [which was one for partition of the plaint properties between the plaintiff and his step brother (the first defendant)] contained expressly or impliedly the following statements:
(1) that the plaintiff and his father Vadivel Arumugam Pillai had become divided in 1876 and continued divided from each other till the plaintiff's father's death (in 1910);
(2) that [the plaintiff's step-brother (the first defendant and the plaintiff's father were joint owners of the plaint proper ties at the plaintiff's father's death in 1910, though they had divided other properties a few months before the father's death and though the first defendant got for his share some of those other properties at that partition; and
(3) that notwithstanding the admission in statement above, the prayer in the plaint was one for the partition of the plaint family properties on the basis that they were undivided joint family properties of the plaintiff and the first defendant.
7. Mr. Grovindaraghava Ayyar thereupon argued that the plaintiff who became divided off in 1876 from his father, cannot become an undivided coparcener of his step-brother in 1910 in respect of the properties which belonged to the plaintiff's father and to the first defendant alone as members of a joint Hindu family; he further argued that even if the plaint properties did not belong to his client (the plaintiff's step-mother and the first defendant's mother who is the second defendant in the case) as contended by her, the first defendant (her son) became the sole owner by survivorship on the death of the father and the plaintiff had no share therein.
8. Mr. Guruswami Ayyar for the plaintiff (the contesting respondent) contended on the other side:
(1) that one of the allegations on which the plaintiff based his claim was the plaintiff's continued status as a joint and undivided member of his father's family as the partition proceedings of 1876 under which the plaintiff was supposed to have come divided off from his father, were wholly futile as vitiated by fraud and illegality;
(2) that an alternative title was also disclosed in the plaint, namely, that the plaintiff and the first defendant as sons of Vadivelu were the only heirs of their said father to whom the plaint properties belonged as his (the father's) separate proper ties at his death;
(3) that neither the first defendant nor the second defendant having in their respective written statements, set up even in the alternative that the plaint properties belonged to the plaintiff's father and to the first defendant as coparceners till the division of 1910 or afterwards till the father's death, the argument based upon such a plea is not now open to the appellant (the second defendant); and
(4) that the plaint contains neither expressly nor impliedly, any admission that the plaintiff's father and the first defendant were joint owners of the plaint properties at any time.
9. Mr. Guruswami Ayyar then argued that the plaintiff is entitled to a half share in the plaint properties on the alternative basis of (1) or (2) above;
10. And that the admission made in the written statements of defendants Nos. 1 and 2, that 15 cents of land belonging to the father were divided between the plaintiff and the first defendant after their father's death, precluded the first and the second defendants from denying to the plaintiff a like share in the plaint properties.
11. He further argued that when the first defendant became divided off in 1910 from his father, the plaint properties should be deemed to have fallen to the plaintiff's father's share alone and to have so become his separate property, even granting that the defendants Nos. 1 and 2 were entitled to argue against their written statements that the properties belonged before partition to the father and to the first defendant jointly.
12. Another argument of Mr. Guruswami Ayyar was that even if the properties be treated as having been left over for future division between the first defendant and the father, the status between the father and the first defendant having become a divided status by the partition of the other properties, the father's half share was held by him in common with the first defendant at the father's death and the plaintiff was entitled to half of that half as one of his two heirs and hence the Order of Remand by the District Judge was in any event right.
13. Then Mr. Kumaraswami Ayyar (the junior of Mr. Govinda raghava Ayyar) argued in his reply that the first defendant's written statement did contain some words from which the alternative case set up before us on behalf of the second defendant,' namely, the joint right of the first defendant and his father in the plaint properties, the plaint properties having been left undivided at the partition of 1910, the properties having continued to be joint properties and not merely properties held in common after such partition, and the sole right of the first defendant by survivorship could be gathered. He also contended that the plaint contained no statements from which it could be inferred that the plaintiff intended to set up an alternative case that the plaint properties were the father's separate properties & at his death and were inherited 'by the plaintiff and the-first defendant as his heirs.
15. It is unnecessary to deal in detail with all these numerous contentions advanced on both sides.
16. It is to be regretted that the Court of First Instance did not, at the time of the first framing of issues or subsequently when the first issue was modified at the plaintiff's instance, obtain and record definite allegations from both sides on some of the statements made in their pleadings. Those pleadings disclosed much ill-directed ingenuity on both sides and they left several matters vague and equivocal, evidently with an intention to future developments. We think, however, that, assuming that the plaint discloses two alternative claims, the plaintiff must be deemed to have given up the claim that he continued to be undivided till the death of the father notwithstanding the partition of 1876 and that at the time of the subsequent framing of the altered first issue by the District Munsif, the plaintiff restricted himself to the claim based on his being one of the two heirs to the property which belonged to his father as his separate property at his death.' I am also not disposed to strictly confine the defendants to the allegations in their written statements so as to prevent them from raising legal defences which arise on the facts as admitted by the plaintiff or even as proved in the course of the trial. The questions again--(1) whether the plaint properties should be presumed to have been left undivided between the first defendant and his father at the partition of 1910 or they should be presumed to have fallen to the father's share and become his separate property at that division and (2) whether in the former alternative, the properties were held by them after the partition as joint tenants or tenants-in-common--are questions which should and could Only be decided by the Court of First Instance on remand after taking the necessary evidence and cannot be dealt with by us at this stage: see Kundum Venkatasami v. Baligadu (1916) 3 L.W. 74 and the Full Bench decision in Pothu Naickan v. Naganna Naicker (1916) 3 L.W. 115
17. I am clearly of opinion that the plaint does contain statements indicating that the plaintiff (at least alternatively) claimed a share in the plaint properties as one of the two heirs of his father to whom they are alleged to have belonged at his death.
18. I do not take the judgment of the District Judge to have decided finally that the plaintiff would legally be entitled to a half share on the statements in the plaint and not to a lesser share. He has not, in my opinion, decided that the properties, on those statements, belonged solely to the father at his death and not to the father and to the first defendant as tenants-in-common. Nor do I take the District Judge's judgment to have finally expressed any opinion adverse to the first and second defendants on the question whether the first defendant could claim full rights in the properties by survivorship on the death father, assuming that the properties were reserved for future division in the partition of 1910. Mr. Govindaraghava Ayyar rightly brought to our notice what I consider to be a serious error made by the learned District Judge. The District Munsif stated in his judgment:
It is admitted that the plaint properties did not form] the subject-matter of the division between the plaintiff's father and the first defendant in 1910.
19. It is clear to my mind that the District Munsif referred to an admission made in the course of the arguments before him. The District Judge says in his judgment:
The conclusion of the Munsif '(about the first defendant's right by survivorship)' appears to be vitiated by the fact that there is no admission by the plaintiff in the plaint '(italics mine)' that the property claimed did not form the subject-matter of the division between the father of the plaintiff and the first defendant in 1910.
20. The District Munsif did not state that the admission was made in the plaint and it is clear from subsequent statements of the plaintiff himself in answer to interrogatories, that the property did not form the subject-matter of the division referred to. A statement in a judgment as to an admission made before the Court of First Instance should not be doubted lightly by the Appellate Court, especially in the absence of an affidavit by the vakil who appeared in the Court of First Instance. But this error of the District Court does not affect the legal validity of its Order of Remand.
21. I shall now briefly consider the final weapon of attack employed by Mr. (Govindaraghava Ayyar against the Lower Appellate Court's judgment, namely, that the appeal to that Court ought to have been dismissed by that Court as barred by limitation. The appeal memorandum was filed by the plaintiff in the District Court on 8th September 1914 within the thirty days granted by Article 152 of the Limitation Act (excluding the time required for obtaining copies of judgment and decree). But he wished to appeal as a pauper and hence, he, in accordance with Order XLIV, Rule 1, presented a separate application on the same date to be allowed to appeal as a pauper. His application was rejected on 31st December 1914 during the Christmas holidays. (I must here deprecate the practice of pronouncing decisions during the Christmas holidays for the purpose of swelling the statistics of disposal). On the re-opening day (4th January 1915), the plaintiff wanted time to pay the necessary court fees on the appeal memorandum and he was given time till 25th January 1915 and he complied with that order. Mr. Govindaraghava Ayyar argued that when the application to appeal as a pauper was rejected on 31st December 1914, the unstamped! appeal [memorandum also roust be deemed to have been rejected, and there was no jurisdiction in the District Court to pass any orders relating to it on 4th January 1915. The chain of argument was somewhat as follows:
Order XLIV, Rule 1 states that the provisions relating to suits by paupers shall be applied, as far as possible, to applications to appeal as pauper. Order XXXIII, Rule 15 provides that when an order is passed refusing to allow an applicant to sue as a pauper, he cannot file another application of the same nature and he can only bring a suit in the ordinary manner (which should, of course, on the date of its institution, fall within the limitation period prescribed for the suit). Hence, when the application to appeal as a pauper was rejected, the only remedy of the appellant was to file a fresh memo randum of appeal on the proper stamp subject to the law of limitation. When the plaintiff paid the proper stamp duty in January 1915, the old memorandum of appeal should be treated as a fresh memorandum presented in proper form on that day. But on that day, the appeal was barred by limitation.
22. I am unable to accept the validity of the above argument. In the first place, the provisions relating to pauper suits are to be applied to pauper appeals only 'so far as those provisions are applicable' (Order XLIV, Rule 1). While the plaint in a pauper suit forms an integral portion of the pauper application itself (see Order XXXIII, Rule 2), the memorandum of appeal presented by an alleged pauper is a different paper in the Court's record from the application for permission to appeal as a pauper, though the two are to be presented together (see Order XLIV, Rule 1). While it might therefore be legitimately argued that the rejection of the application to sue as pauper carries with it the rejection of the plaint contained in that application and hence Order XXXIII, Rule 15 leaves to the applicant as sole remedy, the bringing of a fresh suit in the ordinary form, the rejection of the application to appeal as a pauper leaves the separate memo randum of appeal intact. It was, no doubt, unstamped and the duty of the Court is as pointed out in Achul Ramachandra v. Nagappa Bal Bolgya I.L.R. (1914) Bom. 41 to direct the appellant to pay the proper stamp duty within the time fixed by the Court [see also Order VII, Rule 11, Clause (c) and Section 149 of the Civil Procedure Code corresponding to, but much wider in its terms as regards the discretion given to the Court than, the old Section 582-A]. As pointed out by my learned brother during the course of the argument, if the rejection of the application to appeal as a pauper ipso facto carried with it the rejection of the memorandum of appeal, the right conceded as reserved to him to file a fresh memorandum of appeal on the proper stamp would be almost wholly illusory as the thirty days fixed for the filing of an appeal would have expired before the application is disposed of in the usual course after notice to the other side and to the Collector (where the suit itself was not brought by plaintiff as a pauper): see also observations in pages 929 and 930 of Durgacharan Naikar v. Dookheram Naikar I.L.R. (1899) Calc. 925 and Bai Ful v. Desai Manor bhai I.L.R. (1898) Bom. 849 The limitation periods for suits scale up to sixty years and a person who wishes to sue as a pauper, might be expected by the legislature to file his paper (containing the plaint allegations and the application for leave to sue as a pauper) in sufficient time before the expiry of the limitation period to permit his bringing a fresh suit within the limitation period if his application is finally rejected. This cannot be reasonably expected of a person who wishes to appeal as a pauper. I am therefore prepared to follow the opinion of Farran, C.J., in Bai Ful v. Desai Manorbhai I.L.R. (1898) Bom. 849 that:
the District Judge was under no legal obligation to dismiss the appeal presented by the appellant when he refused the appellant leave to appeal as a pauper.
23. This Court in Marca Thangathammal v. Iravatheeswara Aiyar (1915) M.W.N.228 seems to have gone so far as to decide that even in the case of an application to sue as a pauper, the amendment of the plaint contained in the application to sue as a pauper does not prevent the Court from treating the unstamped amended plaint forming part of the application as a plaint filed on the original date of the presentation of the application and does not prevent the granting of time to pay the necessary court fees there of so as to make the amended plaint become a validly stamped plaint presented on the original date. The distinction between the filing of the application for leave to appeal as a |pauper and the. filing of the appeal memorandum is further indicated by two separate articles of the Limitation Act (152 and 170) dealing with them. I would, in this connection, suggest that there might be a rule framed that, whenever an application to appeal as a pauper is rejected, the Court should at once pass an order granting reasonable time to the appellant to pay the stamp duty due on the memorandum of appeal. I have no doubt that the District Judge would have passed such an order in this case on the date of the order rejecting the application if the matter had been brought to his notice.
24. The District Munsif ought to have taken evidence and come to a conclusion on the evidence (and on the law applicable) as to the extent and nature of the rights, if any, which the plaintiff's father owned in the plaint properties at his death and as to the plaintiff's right to inherit a share therein.
25. In the result I would dismiss the appeal except on the minor question of the vakil's fees to be allowed in the Lower Appellate Court. The. appellant who has substantially failed must pay the respondent's costs.