Judgment :- A question of some importance in pauper suits arises for consideration in this Civil Revision Petition. The question is whether one of the persons entitled to sue in a representative capacity can sue in forma pauperis it some other entitled to sue under the same cause of action is possessed of means and is not a pauper. The petitioner in Pauper O. P No. 23 of 1974 on the file of the Subordinate Judge, Trichur is the petitioner in this Civil Revision Petition. The petitioner filed a suit in forma pauperis claiming damages to the tune of Rs. 40500/- for the death of her son Mohanan who succumbed to the injuries sustained in an accident in which a lorry belonging to the 1st respondent was involved. The claim in the suit was made by the petitioner on her behalf and on behalf of her husband Kunhunny who was made 3rd respondent in the pauper application, It is admitted that the petitioner's husband has sufficient means to pay court-fee. The court below dismissed the pauper application saying: "The reliefs are claimed by the plaintiff for herself and her husband respondent 3. Both are heirs of deceased. No reason is alleged in the petition as to why he was not made a plaintiff Only pw.1 offered a reason which under the circumstances without examing respondents 3 and without a formal release, cannot be accepted. pw.1 admits respondent 3 has arecanut garden and paddy lands. She pleads ignorance regarding their extent. Hence I find that since the claim is for respondent 3 also and since he is not a pauper, the suit cannot be filed in forma pauperis." Accordingly, the court directed the petitioner to pay court tee. The petitioner challenges the above order of the court below in this Civil Revision Petition. 2. Shri N. K. Sreedharan, learned counsel for the petitioner, contends that the court below went wrong in dismissing the pauper application filed by the petitioner on the ground that the petitioner's husband who is also entitled to make the claim under the Fatal Accidents Act, 1855 is not a pauper. According to the learned counsel, as long as the petitioner is not possessed of sufficient means and is not in a position to pay court-fee, the pauper application has to be allowed and the petitioner has to be permitted to sue in forma pauperis. According to the learned counsel, as long as the petitioner is not possessed of sufficient means and is not in a position to pay court-fee, the pauper application has to be allowed and the petitioner has to be permitted to sue in forma pauperis. Learned counsel points out that the petitioner cannot be prevented to sue simply because the other claimant, the petitioner's husband, refuses to sue. Learned counsel refers to Explanation II to Order XXXIII R.1, Code of Civil Procedure 1908 which reads: "Explanation II Where the plaintiff sues in a representative capacity, the question of pauperism shall be determined with reference to the means possessed by him in such capacity." According to the learned counsel, a claim under the Fatal Accidents Act, 1855 by one of the legal heirs of the deceased, who is a pauper, will not be hit by the above Explanation. Learned counsel refers to Bai Moti Vela v. Bai Ladhi Vela (AIR. 1974 Gujarat 52) wherein the court said: "In other words, the Court has been enjoined to inquire into the means of the person who applies for leave to sue in forma pauperis In the instant case, the Court has to inquire into the means possessed by the petitioner who has filed the suit for partition and share in the joint family property against her sisters," The above was a case where the suit was filed by a lady against her sisters and others for partition and possession of her share from their joint family properties. An application to sue in forma pauperis was made as the lady was not in a position to pay court-fee. The trial court rejected the request on the ground that her husband had sufficient properties to pay court-fee. The learned judge further said: "In my opinion, therefore, the learned Civil Judge has failed to act beyond his jurisdiction in considering the means possessed by the petitioner's husband for purposes of determining the question, whether the petitioner was entitled to have to sue in forma pauperis." Reference is also made to P. B. Kader v. Thatchamma (AIR. 1970 Kerala 241) wherein Krishna Iyer J. (as he then was) speaking for the Court has said: "The Act requires that all the dependants are to be named in the plaint in a suit for compensation. 1970 Kerala 241) wherein Krishna Iyer J. (as he then was) speaking for the Court has said: "The Act requires that all the dependants are to be named in the plaint in a suit for compensation. Strictly speaking, the section visualises some sort of a representative action, but, where the suit is brought, not by the executor or administrator, but by some of the beneficiaries themselves, the suit cannot be dismissed because the others are not on record." Learned counsel then refers to Governor-General of India in Council v. Bhanwari Devi (AIR. 1961 Allahabad 14) which is also a case under the Fatal Accidents Act, 1855. In the above case the suit was brought by the wife of the deceased without making any mention of the father of the deceased who was also entitled to make the claim under the Fatal Accidents Act, 1855. The father supported the plaintiff's claim. A Bench of the Allahabad High Court said: "Under the Act only one suit for compensation is maintainable and the suit must be for the benefit of all the persons who are entitled to get compensation under S.1." The Court further said that the defendant was in no way prejudiced by the fact that the plaintiff brought the suit for her benefit only and the defect in the frame of the suit was not fatal to the suit. Learned counsel concludes by saying that at any rate the court below went wrong in not allowing the petitioner to agitate the claim to the extent of her share in the amount claimed in the suit. Shri K. P Radhakrishna Menon, learned counsel for respondents 1 and 2, contends that the suit in question filed under the Fatal Accidents Act, 1855 is a representative one and hence, if any of the claimants is in a position to pay court-fee, permission to sue in forma paupers cannot be given. Learned counsel points out that admittedly the 3rd respondent who is the husband of the petitioner is possessed of sufficient means to pay court-fee and hence the court-below has rightly refused to allow the petitioner's application. Learned counsel refers to Krishna Pillai v. Vasudevan (1964 KLT.149) wherein it is said: "When a plaintiff sues in a representative capacity, the question of pauperism shall be determined with reference to the means possessed by him in such capacity. Learned counsel refers to Krishna Pillai v. Vasudevan (1964 KLT.149) wherein it is said: "When a plaintiff sues in a representative capacity, the question of pauperism shall be determined with reference to the means possessed by him in such capacity. plaintiff suing in a representative capacity may be himself a pauper, but if he is suing on behalf of other persons who cannot be described to be paupers, he is certainly not entitled to the benefit of 0 33 by reason of his Individual pauperism." In the above case the karnavan of a tarwad, possessed of means, sought permission to sue in forma pauperis on the ground that he was not possessed of any means. Learned counsel makes pointed reference to Para.6 of the pauper O. P. wherein it is stated that the petitioner and the 3rd respondent as legal representatives of the deceased are entitled to make the claim made. Reference is then made to Vellingiri Naicken v. Sree Patteswaraswami Devasthanam (AIR. 1949 Madras 714) wherein Rajamannar C. J. has said: "Under Explanation (iii) though the particular plaintiff suing in a representative capacity may be himself a pauper he is not entitled to the benefit of 0.33 by reason of his individual pauperism if the persons on whose behalf he is suing cannot be described to be paupers." in the above case the petitioners applied for leave to file in forma pauperis a suit on their own behalf and on behalf of the public residents of Perur. The Court came to the conclusion that it cannot be said that the public residents of Perur are not possessed of sufficient means to enable the court-fee to be paid. Learned counsel also refers to the Bench decision of this Court in P. B. Kader v. Thatchamma (AIR. 1970 Kerala 241) already referred to by the learned counsel for the petitioner and contends that a claim under the Fatal Accidents Act, 1855 can be made only in a representative character when there are more than one dependant entitled to make the claim. Hence, according to the learned counsel, as long as the petitioner's husband, the 3rd respondent, is possessed of means, the petitioner cannot sue in forma pauperis and the order of the court below calls for no interference. 3. Hence, according to the learned counsel, as long as the petitioner's husband, the 3rd respondent, is possessed of means, the petitioner cannot sue in forma pauperis and the order of the court below calls for no interference. 3. The plaintiff is suing in a representative capacity as the suit is one under S.1A of the Fatal Accidents Act, 1855 and since the plaintiff's husband' the 3rd respondent in the pauper application, is alive. If the 3rd respondent is not willing to sue, that cannot prevent the petitioner from filing the suit. Then the question is whether, it the petitioner is a pauper and the 3rd respondent is not a pauper, the petitioner can sue in forma pauperis. Explanation It to Order XXXIII R.1 of the Code of Civil Procedure 1908 which governs the matter insists that 'the question of pauperism shall be determined with reference to the means possessed by him in such capacity'. In this case, the petitioner cannot have any right whatsoever in the assets of the 3rd respondent as long as he is alive. So, even if the 3rd respondent is possessed of means, the petitioner can sue in forma pauperis because there are no assets possessed by the 3rd respondent in which the petitioner has got a right and the petitioner is not possessed of sufficient means. The decision in Krishna Pillai v. Vasudevan (1964 KLT.149) is not applicable to the facts of the case as in that case admittedly the plaintiff therein and the other members of the tarwad had interests in the assets of the tarwad. In Vellingiri Naicken v. Sree Patteswaraswami Devasthanam (AIR. 1949 Madras 714) what was sought to be enforced was a right of the public of a locality and no personal claim as the one involved in this case was there. In the above case, the plaintiffs filed the suit as representatives of the public of the locality to enforce a public right. So, the above decision cannot also apply to the facts of this case. 4. In the result, it is held that the petitioner is entitled to sue in forma pauperis, the order impugned in this Civil Revision Petition is set aside and the Civil Revision Petition is allowed. There will be no order as to costs. Allowed.