Raman Nayar, J.
1. I see no reason to interfere with the order of the learned Subordinate Judge rejecting, on the ground mentioned in Order XXXIII Rule 5 (d) of the Code, the petitioner's application for permission to sue as a pauper.
2. The suit is for partition and possession of the petitioner's alleged l/4th share of the separate properties left by one Chidambaram Pillai, a Mitakshara Hindu domiciled in Parur in the former State of Travancore. The petitioner is a grandson of this Chidambaram Pillai and he seeks his share ignoring certain alienations made, and decrees suffered, by Chidambaram Pillai's sons. According to the allegations in the plaint, Chidambaram Pillai died on 30-12-1107 M. E. (14-8-1932) while the petitioner was born on 8-5-1935, nearly 3 years later, so that he could not even have been in the womb at the time of Chidambaram Pillai's death.
The petitioner was therefore not an heir in intestacy, but the plaint alleged that Chidambaram Pillai had left a registered will executed on 31-10-1107 by which subject to the discharge of his debts from the income, he bequeathed all his properties to his grandsons giving no interest whatsoever to his wives or children. The learned Subordinate Judge held that by reason of Section 111 of the Indian Succession Act, the petitioner who was not in existence at the time of Chidambaram Pillai's death, got nothing under this will.
He was, doubtless, wrong in applying the provisions of the Indian Succession Act which was not in force in Travancore at the time of Chidambaram Pillai's death. Nor was there any corresponding statute in force. Nevertheless, his conclusion was correct since under the general Hindu Law, unmodified by statutes which were not in force in Travancore, there can be no bequest to an unborn person -- see paragraphs 372 and 373 of Mulla, 12th edition.
3. It has been argued that it is premature to decide the question without construing the will itself and that Order XXXIII Rule 5 (d) should not be applied to a case like this. I do not agree. There are sufficient averments in the plaint regarding the terms of the will and, on those averments the petitioner, having no interest in the property, has no cause of action. If as is suggested the plaint has misconstrued the will which it is said possibly creates an intermediate estate, it might still be open to the petitioner to file a fresh plaint or seek an amendment putting forward the true construction.
I cannot subscribe to the view that Order XXXIII, Rule 5 (d) can only be applied to cases where without giving the least thought to the matter and without seeking the legal principles involved the court is able to say that the plaint discloses no cause of action. Then it may not be applied at all. The decision in 33 Trav LJ 898, relied upon by the petitioner has no bearing.
In the first place that was a case where the trial court had allowed the application for leave and the High Court sitting in revision was invited to dismiss it under Order XXXIII Rule 5(d). Moreover, unlike as in this case, on the allegations of the applicant, it was not possible to pronounce that there was no cause of action and the court was asked to do so by construing the will relied upon.
4. It has been argued that possibly the customary law applicable to Chidambaram Pillai permitted a bequest to an unborn person. It is sufficient to say, in answer, that no such special custom is pleaded.
5. I dismiss the petition with costs.