1. In this case the learned Subordinate Judge rejected petitioner's application for leave to sue in forma pauperis without any trial of the question of his pauperism, on the grounds that as regards a portion of his claim he had no cause of action and as regards the rest he was barred by limitation.
2. The question of the existence or nonexistence of a cause of action in this case depended on whether petitioner's mother Baghirathi Ammal had obtained a life-estate or an absolute estate under the deed of settlement executed by his grandfather in 1885. He alleged in his petition that only a life estate had been granted to her and on that allegation his petition clearly disclosed a cause of action. The Subordinate Judge, however, referred to the deed of settlement, which was mentioned in the petition and had been filed along with it and was marked as Exhibit A and construing it he held that it gave Baghirathi an absolute estate, and that in consequence the petitioner had no cause of action to recover any share in the properties sold by her on the ground that the sale was not for proper necessity.
3. It is contended that the Subordinate Judge acted illegally or with material irregularity in construing Exhibit A at this stage of the proceedings and his order based on such construction should be set aside. A very similar question arose in Gopal Chandra Neogy v. Bigoo Mistry 8 C.W.N. 70 where a Bench of the Calcutta High Court, following a previous ruling of the same Court in Debo Das v. Mohunt Ram Charn Das 2 C.W.N. 474 held permissive power, then they would be unaffected either expressly or impliedly by reference to the provisions of Section 91 of the Indian Evidence Act in provisions relating to proof of the recorded writings under Section 533 of the Criminal Procedure Code. If, moreover, it was intended to make oral statements, which would be relevant when made to private persons, irrelevant when made to Magistrates, then there would surely have been express provision that such statements should not be proved except by writings duly recorded by Magistrates. It would not have been left to mere implication from the provisions relating to the manner of proof of such writings when recorded by Magistrates under Section 533 of the Criminal Procedure Code. This was no doubt urged without success in Emperor v. Gulabu (7) before a Bench of the Allahabad high Court. But it should, in my opinion, be given further reflection with due deference to those learned Judges, should the matter hereafter be brought up in this Court.