JUDGMENT 1. This rule relates to an order made by the District Judge of Gaya under sec. 409 of the CPC rejecting the application made by the Petitioner for permission to sue as a pauper. The suit of the Petitioner was that the Will left by his grandfather Radha Mohan Neogy be construed, that possession be allowed to him as trustee of certain Thakurs or that the Defendants who had purchased various portions of the properties left by Radha Mohan Neogy from the Plaintiffs father Ram Ruttan Neogy, be called upon to contribute in proportion to the properties purchased by them towards the maintenance of the Thakurbari. 2. An investigation seems to have been held upon the question whether the Petitioner was a pauper or not within the meaning of the Code of Civil Procedure. The District Judge was satisfied that he was a pauper, but he has held that on the Plaintiff's own allegations which depended entirely upon the Will in question, he has no right to sue; and upon this ground, he has rejected the application. 3. Now, on referring to the order, or rather the grounds assigned by the Judge for the order he has made, it will be observed that, what that officer does is not to apply his mind to the principal matter which he was called upon to consider under the provisions of sec. 407 of the Code of Civil Procedure, but practically to deal with the merits of the suit which the Plaintiff wanted to institute as a pauper. He refers to one or two provisions of the Will, and then to a certain judgment passed by the High Court in a suit instituted by the Plaintiff's brother where it seems to have been held by the High Court that, on the construction of the Will, Ram Ruttan Neogy got an absolute estate. Then he refers to certain other provisions of the Will and he expresses the opinion that no charge of the character mentioned in the plaint was created on any property in the hands of Ram Ruttan Neogy. And then he observes as follows:-- The document cannot possibly bear any other construction than that put upon it by the High Court and the applicant has therefore on his own allegations which depended entirely on this document, no right to sue. And then he observes as follows:-- The document cannot possibly bear any other construction than that put upon it by the High Court and the applicant has therefore on his own allegations which depended entirely on this document, no right to sue. I therefore reject the application and refuse to register it as a plaint in forma pauperis. 4. In other words what the District Judge does is this: He refers to some of the provisions of the Will; he construes those provisions; and he holds that his view of those provisions is the same which was accepted by the High Court in a previous suit instituted by the Plaintiff's brother; and therefore the Judge says, "upon the plaintiff's own allegations which depended entirely on this document he has no right to sue." The learned District Judge here takes upon himself, as we gather, to express an opinion upon the merits of the suit itself. The Plaintiff asks that the Will be construed, and such relief or reliefs which under the Will he is entitled to be granted to him, and the learned Judge says that upon the allegations made in the plaint the Plaintiff has no right to sue. 5. Now, on referring to the plaint, there can be no doubt that it does contain allegations upon which the Plaintiff has a right to sue; and it was not expected, nor is it the policy of the law that the Court should prejudge the case in an enquiry under the provisions of sec. 407 of the Civil Procedure Code. The law upon the subject was discussed in the case of Debo Das v. Mohunt Ram 2 C.W.N. 474 (1898) by a Division Bench of this Court, and it would appear that the learned District Judge in this case has followed almost the same course which the Subordinate Judge in the other case had followed, and which was held by this Court to be entirely erroneous. This Court after referring to the grounds given by the Subordinate Judge, observed as follows:-- Now referring to the judgment of the Subordinate Judge in this particular case, it seems to us quite clear that he has not directed his mind to the particular matter which he was called upon by sec. 407, cl. (c) to investigate. This Court after referring to the grounds given by the Subordinate Judge, observed as follows:-- Now referring to the judgment of the Subordinate Judge in this particular case, it seems to us quite clear that he has not directed his mind to the particular matter which he was called upon by sec. 407, cl. (c) to investigate. He addresses himself to the merits of the case, to the rights of the parties and to matters which are entirely foreign to the enquiry that he had to make. What he does really is that he applies a course of enquiry to the matter he had to investigate under sec. 407, which was not applicable to it, and he thereby fails to apply to the matter a course of enquiry which was applicable. If he had confined his enquiry to the allegations as made in the plaint, and if he had said that those allegations do not show a right to sue, it is extremely doubtful whether this Court could interfere with his order under sec. 622, however wrong that order might be. But be does not do so; rather he introduces considerations which are entirely foreign to the enquiry which he was called upon to make, and upon those considerations he holds that the allegations in the plaint do not show a right to sue and so on. 6. We adopt the view that was expressed in that case, and we hold that the learned District Judge has applied to the matter before him a course of enquiry which was entirely foreign to the enquiry he was called upon to make under sec. 407 of the Code. 7. We accordingly set aside the order of the Court below, and remit the case to that Court with directions that the Plaintiff be allowed to sue in forma pauperis, the hearing fee being assessed at five gold mohurs. Subsequent costs will abide the result.