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PETITIONER: 1.    R. MUTHAMMAL (Died)2.   PARAMESWARI THAYAMMAL

       Vs.

RESPONDENT: SRI SUBRAMANIASWAMI DEVASTHANAM,TIRUCHENDUR

DATE OF JUDGMENT: 14/01/1960

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. DAS, S.K. SARKAR, A.K.

CITATION:  1960 AIR  601            1960 SCR  (2) 729

ACT: Hindu  Law-Exclusion  from inheritance-Lunacy,  if  must  be congenital.

HEADNOTE: A  Hindu was found to be a lunatic when  succession  opened. It  was  claimed  that  under  the  texts  lunacy  must   be congenital to exclude from inheritance. Held,  under  the Hindu law lunacy as distinct  from  idiocy need  not be congenital to exclude from inheritance,  if  it existed when succession opened. Muthusami  v.  Meenammal.  (1920)  I.L.R.  Mad.  464,  Wooma Parshad  Roy v.  Grish Chunker Prochundo, (1884)  I.L.R.  10 Cal.  639  and Deo Kishen v. Budh Prakash, (1883)  I.L.R.  5 All. 509 (F.B.)approved. Murarji Gokuldas v. Parvatibai, (1876) I.L.R. 1 Bom. 177 and Sanku v. Puttamma, (1891) I.L.R. 14 Mad. 289, disapproved.

JUDGMENT: CIVIL APPELATE JURISDICTION: Civil Appeal No.200 of 1955. Appeal from the judgment and decree dated January 20,  1943, of  the Madras High Court in A. S. No. 392 of 1943,  arising out of the judgment and decree dated March 30, 1943, of  the Sub Judge, Tuticorin in O.    S. No. 34 of 1939. S.   V.  Venugopalachariar  and  S.  K.  Aiyangar,  for  the appellant No. 2. A.   V.  Viswanatha  Sastri,  R.  Ganaapathy  Iyer  and   G. Gopalakrishna, for respondent No. 1. 1960.  January 14.  The judgment of the Court was  delivered by HIDAYATULLAH J.-This appeal has been filed on  leave granted by the High Court of Madras against its judgment and  decree dated  January  20,  1947,  by  which  the  decree  of   the Subordinate  Judge,  Tuticorin, dated March  30,  1943,  was substantially modified. 93 730 Before  the application for leave to appeal to the  Judicial Committee  could  be filed, the  first  defendant  (Ramasami

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Pillai) died, and the application for leave  was  filed   by his widow, R. Muthammal, who was the    fourth defendant  in the  suit.  R. Muthammal also died soon afterwards  and  her place was taken by Parameswari Thayammal (her daughter  born of  Ramasami  Pillai), who was the fifth defendant  in  this case.  Along   with   these  three  defendants,  the   other members  of  Ramasami Pillai’s family were  also  joined  as defendants.   The  suit  was filed  by  Sri  Subramaniaswami Devasthanam,  Tiruchendur (hereinafter called  for  brevity, the Devasthanam), and the Devasthanam is the only contesting respondent in this Court. One  Poosa Pichai Pillai had five sons and three  daughters, of  whom  Meenakshisundaram  Pillai died on  May  21,  1919. Before   his  death  Meenakshisundaram  Pillai  executed   a registered will on May 20, 1919, and a registered codicil on May  21,  1919.   By these documents,  he  left  his  entire property  to  his  only  son,  M.  Picha  Pillai,  with  the condition that should he die without issue, the property was to go to the Devasthanam. M. Picha Pillai died a bachelor on December 10, 1927.  Three claimants  claimed the property after his death.  The  first naturally  was the Devasthanam claiming under the gift  over to it.  The other two were the heirs of M. Picha Pillai, who asserted    that    the   gift   over    was    void,    and Meenakshisundaram’s  wife’s brother and  sister,  Arunachala Irungol   Pillai  and  N.S.  Muthammal  (third   defendant), respectively  who claimed under an alleged will of M.  Picha Pillai.  The heirs of M. Picha Pillai were defendants 7,  8, 10,  13  and 14, the father of defendants 9, and  the  first defendant.    These  claimants  denied  the  claim  of   the Devasthanam,  contended that the will and the codicil  above mentioned  gave an absolute estate to M. Picha  Pillai,  and that the gift over to the Devasthanam was, therefore,  void. The Devasthanam filed O.S.No. 57 of 1932 for declaration and possession  of the properties covered by the will,  together with  other reliefs.  During the pendency of the  suit,  the heirs of M. Picha                             731 Pillai  and  the present defendants 15 and 16  (two  of  the three  sons  of Arunachala Irungol  Pillai)  assigned  their interest  in favour of the Devasthanam.  The  result  of the suit, therefore, was that a decree in favour      of     the Devasthanam was passed in regard to the      interest of the assignors, but it was dismissed as regards  the interest  of N.S.  Muthammal  (third  defendant)  and  Pothiadia  Irungol Pillai (second defendant)     who  had not entered into  the compromise. It May  be  mentioned here that by Ex.  D-22,  a registered     agreement  dated May 20, 1928, the heirs  had already   agreed  to give to Arunachala Irungol  Pillai  and N.S. Muthammal one-eighth share each respectively in     the properties of M. Picha Pillai. Thus, by this compromise  the Devasthanam received 5/6th share of     the properties of M. Picha Pillai, the remaining 1/6th, going    to     Pothiadia Irungol Pillai (1/24th) and N.S.   Muthammal  (1/8th).   The Devasthanam filed an     appeal  in the High  Court  against the dismissal of the     suit in respect of this 1/6th share and failed. An appeal   was  then  taken  to  the   Judicial Committee,     which also failed. The judgment of the  Privy Council   is reported in Sri Subramaniaswami Temple v. Rama- samia Pillai (1). Without waiting, however, for the result of the   appeal  in so far as the 1/6th share was concerned, the     Devasthanam filed the present suit joining the two  sets  of   claimants for declaration, ejectment and     possession  by  partition of the properties to which it claimed  title and  for  mesne

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profits. The properties  were  shown  in  various  schedules annexed to the plaint;  but  it is unnecessary to  refer  to those schedule except  were  the needs of  the  judgment  so require.  One  of the contentions raised by  the  plaintiff- Devasthanam    in   this   suit   was   that    the    first defendant,Ramasami  Pillai, was not entitled to a  share  in the  properties  as  an  heir of M. Picha  Pillai,  being  a lunatic   when   succession  to  these  properties   opened. Onbehalf  of  the  first  defendant,  Ramasami  Pillai,  who contested   the   suit  through  his  wife   and   guardian, R.Muthammal, it was contended that he was not a (1) (1950) 1 M.L.J. 300. 732 lunatic  (buddhi swadeenam illadavar) but only a  person  of weak intellect (buddhi deechanya matra), and thus,he was not excluded from inheritance.  This point was       the    main argument in this appeal, because the two     Courts    below reached opposite conclusions.  According     to          the Subordinate  Judge of Tuticorin, Ramasam Pillai’s  plea  was correct and proved.  The High Court,    on  the other  hand, held that the mental defect in     Ramasami Pillai  amounted to lunacy, and that it disentitled him to a share. Connected  with this above matter is the  second  contention raised  by Ramasami Pillai that he was entitled to  a  1/9th share by virtue of an alleged agreement stated on  affidavit in Ex.  D-7 by Doraiappa Pillai on April 1, 1931.  We  shall give  the details of this contention hereafter.   The  third contention  raised in this appeal and also before  the  High Court  was that the properties described in plaint sch.  4-A were  the  subject-matter of a decree  dated  September  19, 1927,  in  favour of M. Picha Pillai in O.S.No. 35  of  1924 filed  by  him against his cousins.  According  to  Ramasami Pillai (first defendant), the decree was not executed for  a period  of  12 years and the claim thereto  was,  therefore, barred under s. 48 of the Code of Civil Procedure, and  thus the  Devasthanam  was  not entitled in this  suit  to  claim possession of those properties. We shall begin with the question whether Ramasami Pillai was excluded from inheritance by reason of his mental  condition on December 10, 1927.  The argument of the appellant is two- fold.  The first is on the fact whether Ramasami Pillai  was a  lunatic  within  the Hindu law texts.  The  second  is  a question  of law whether this lunacy was not required to  be proved to have been congenital to disentitle Ramasami Pillai to  succeed  to his father.  We shall deal  with  these  two questions separately. In  view of the fact that the two Courts below  had  reached opposite  conclusions on the fact of lunacy, we have  looked into the evidence in the case, and have heared arguments for the  appellant.   We are satisfied that the opinion  of  the High Court is correct in all the circumstances of this case. The argument on behalf 733 of  the appellant was that in judging this issue  we  should see the evidence regarding the mental condition of  Ramasami Pillai  antecedent and subsequent to December 10, 1927,  the conduct of his father, relatives   and  the other  claimants of the property. It was  contended that Ramasami Pillai  was attending school.   though  nothing  was shown  to  us  from which  we  infer  that he had profited by  the  attempts  to educate him.  The appellant, however, set great store by two documents,  Exs.   D-1  and D-2,  executed  by  his  father, Perumal  Pillai, in January and April 1924.  By  the  first, Perumal  Pillai released his claim to certain properties  in favour of his four sons, mentioning therein Ramasami  Pillai

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without  adverting  to the fact that he was  a  lunatic  and without  mentioning a guardian.  By the second, which was  a will, Perumal Pillai gave equal shares in his properties  to his sons including Ramasami Pillai, and once again without a mention  of  his mental condition.  It  was  contended  that Perumal  Pillai  was  a Sub-Registrar  who  would  know  the importance  of such a fact and also the law that  a  lunatic was  not entitled to succeed.  The fact that the  father  in these two documents made no mention of the mental  condition of  his  son  does not bear upon the present  case  for  two reasons.   The first is that the case of Ramasami Pillai  in this suit was that he was quite sane till 1924, and that his mental  condition  deteriorated only after that  year.   The second  is that the omission by the father to  mention  this fact  might be grounded on love and affection in  which  the claim  of  a mentally defective child might  not  have  been viewed by him in the same manner as the law does. It  was next contended that the other heirs  recognised  the right  of Ramasami Pillai in April 1928 and agreed  to  give him  a 1/9th share, as has been already stated above.   That too  would not prove that Ramaswami Pillai was entitled,  in law,  to a share.  The compromise (which is also  contested) might have been out of motives of charity but might not have been due to the fact that Ramasami Pillai’s right to a share was legally entertainable. The   evidence,   however,  of  Ramasami   Pillai’s   mental incapacity is really voluminous.  Between 734 June  1924 and till his death, numerous suits were filed  by different  members  of the family, including his  wife,  his cousins, uncle and aunt, in which Ramasami Pillai was always shown  as  a  lunatic requiring the appointment  of  a  next friend or a guardian-ad-litem.  In one  case   only    where Ramasami Pillai was the second defendant, an appearance  was entered on his behalf    by  a  vakil,  who  contended  that Ramasami  Pillai  was sane and ought to  be  represented  in person.  The Court on that occasion appointed the Head Clerk of the Court as his guardian, and asked him to report  about the condition of Ramasami Pillai.  Ramasami Pillai was  also asked to appear in Court in person, so that the Court  might form  its  own opinion by questioning him.  The  Head  Clerk visited Ramasami Pillai and submitted his report, Ex.   P-8, in  which lie described his observations.  It  appears  that Ramasami Pillai did not even give his name when  questioned, and  appeared  to be woody and silent.  The  relatives  felt that  he  was  hungry  and fed him;  but  even  after  this, Ramasami  Pillai did not give any answers to  the  questions put to him in the presence of his wife and others.  The Head Clerk  therefore  reported that the appearance  of  Ramasami Pillai as a gloomy and sickly person with a vacant look  and that his inability to answer even the simple question  about his name, clearly showed that he was insane, This report was presented to the Court in the presence of the vakil, who had filed  the vakalatnama, and on September 20,1924,  an  order (G.   S.  No. 35 of 1924) was recorded  by  the  Subordinate Judge (Ex.  P-9).  It was mentioned therein that the  report was  not objected to by the vakil for Ramasami  Pillai,  and that  Ramasami  Pillai was treated as a  lunatic.   Ramasami Pillai himself did not appear. It was contended that this enquiry as well as the fact  that in  numerous litigations Ramasami Pillai had a  guardian  or next  friend to look after his interests did not prove  that he was insane within the meaning of the Hindu law texts;  it only proved that he was a person incapable of looking  after his  interests  and for the purposes of the conduct  of  the

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suits  a guardian or next friend, as the case might be,  was necessary.  In our opinion, the long and continued course of conduct 735 on  the  part of the various relatives  clearly  shows  that Ramasami  Pillai was, in fact, a lunatic, and the report  of the  Head Clerk given in a case long before the present  one was  ever contemplated, shows only too clearly that he  was, for  all  intents and purposes, not  only a  person  who was slightly  mentally  deranged but one who  was  regarded  and found to be a lunatic. There being   this   evidence,   the distinction now sought to bemade and which appealed to the Subordinate Judge of Tuticorin, is not borne out by  the evidence in the case.Such  a long and continuous  course of conduct clearlyproves  the  contention  that   Ramasami Pillai was, infact, mad. Further, in Ex. D-22 dated May 20, 1928, Ramaswami Pillai was not considered as a  claimant,and his  claims  could  not  have been  overlooked  by  all  his relatives  simply  because they were to  get  an  additional share each in the property by reasonof  his   exclusion. Some one of his relatives would havefelt  the  need  for asserting the claim on his behalf, ifhe  himself did  not do so. In view of the fact that thepreponderance     of probabilities is in favour of thedecision   of  the   High Court, we do not think that theappellant  has  succeeded in establishing the distinction,which  was  made  in  the case, between a lunatic and aperson  of weak  intellect  on the evidence, such as it is.This  brings  us to  the  next contention which is oneof law. It may be pointed out  here that before theSubordinate  Judge, Ramasami Pillai  did not raise thecontention  that as a matter of law  insanity must becongenital before a person would be excluded from inheritance.   Learned counsel for the  appellant  explained that  it was futile to raise this contention in view of  the decision of the Madras High Court in Muthusami v.  Meenammal (1),  in  which  it  was ruled that  insanity  need  not  be congenital  to create the disability, and that  insanity  at the time succession opened was enough.  The point,  however, appears  to have been raised in the High Court, but  it  was decided against Ramasami Pillai.  The soundness of this view is questioned in this appeal. The  argument  shortly is this: The text of Manu  (ix,  201) mentions many causes of exclusion from (1)  (1920) I.L.R. Mad. 464. 736 inheritance,  some of which like blindness,  muteness,idiocy and lameness, it is settled, must be congenital to exclude a person  from inheritance.  It is argued that the  collection of the words in the text suggests that  insanity like  these other  disabilities must also be congenital.  No doubt,  the word    "    Unmatha   "   comes        between    the words "Jatyandhabadhirau"  and " Jadamukascha "; but  the  rulings have uniformly held that for the madness, the test, that  it should  be  congenital, does not apply.   The  argument  now raised  has  the  support of the opinion  expressed  by  Dr. Sarvadhikari in his Principles of Hindu Law Inheritance-(2nd Edn.)  p. 846,where the author expounded the text  according to rules of grammar, though he was doubtful if according  to medical  science,  madness  as opposed  to  idiocy  is  ever congenital.   The translations of the same text  by  Setlur, Gharpure and Dr. Ghose do not admit this interpretation.  In Muthusami  v. Meenammal (1), it was pointed out also that  " Unmatha " was not qualified by the word " Jati ".  Seshagiri Ayyar,  J.  observed that it according to Mimamsa  rules  of interpretation,  an adjective qualifying one  clause  should

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not by implication qualify a different clause ". The counsel on that occasion agreed that this was the correct approach, but  relied upon the opinion of Dr. Sarvadhikari  which  was not accepted. Learned  counsel  for  the appellant also  referred  to  the opinion  of  Colebrooke  in his Digest,  Vol.  11,  p.  432. Colebrooke’s  translation  is based upon the  commentary  of Jagannatha Tarkapanchanana, and it is Jagannatha who made no difference between the various disabilities, and opined that madness like blindness or muteness must be also  congenital. No  doubt,  much weight must be attached to the  opinion  of Jagannatha  who was " one of the most learned  pandits  that Bengal  had  ever  produced  ".  But  this  translation   of Colebrooke  has  not been universally accepted, and  is  not borne  out  by the original texts and  commentaries  on  the Mitakshara.  Dr. Ghose in his Hindu Law, Vol. 1, p. 224  has expressed  his  doubts.  The texts of Narada XIII,  21,  22, Yajnavalkya  11,  140-141 and others do not  show  that  the defect of madness must also be (1)  (1920) I.L R. 43 Mad. 464.                        737 congenital.  In  Saraswati  Vilasa  148,  the  emphasis   of congenital disability is placed on blindness and   deafness. Similarly,  in Smriti Chandrika, Chap. V , 4,  persons  born blind and deaf are mentioned apart from  madmen  and idiots. That idiots must be congenitally so, is ruled by the Courts. The cases that have come before the Courts have  Devasthanam all been uniform, except Murarji Gokuldas v. Parvatibai (1), where  the observation is obiter and Sanku v. Puttamma  (2), which was dissented from in later cases.  On the other hand, Wooma Pershad Roy v. Grish Chunder Prochundo (3), Deo Kishen v.  Budh Prakash (4) and other decisions have  clearly  held the contrary.  In two cases before the Privy Council it  was assumed that madness need not be congenital.  It may also be noted that when the Legislature passed the Hindu Inheritance (Removal of Disabilities) Act XII of 1928 making the  change to  madness from birth as a ground of exclusion the law  was not made retrospective, thus recognising the correctness  of the judicial exposition of the original texts.  In this view of  the matter, we do not think that we should unsettle  the law  on  the subject; nor has it been made to appear  to  us that  any  different view is open.  We  accordingly  do  not accept the contention. The  result  -is that Ramasami Pillai was  not  entitled  to succeed  to  M.  Picha  Pillai.  We now  come  to  the  next contention.   It  is  that even if  this  be  the  position, Ramasami Pillai was entitled to 1/9th share on the basis  of an alleged arrangement evidenced by Ex.  D-7 dated April  1, 1931.   This  document is an affidavit which  was  filed  by Doriappa  Pillai (Defendant 8) in a suit (O.  S. No.  25  of 1930)  filed  by him for possession after partition  of  his 1/8th  share  on  the  basis of Ex.  D-22.   In  that  suit, Ramasami  Pillai was the second defendant.  Ex.  P-5 is  the written statement filed on his behalf in which he repudiated that  he  was  excluded from inheritance by  reason  of  his insanity.   This suit was withdrawn on April 2,  1931,  with the  leave of the Court, with liberty to bring a fresh  suit (Ex.  D-6).  In the affidavit which was filed, it was stated as follows : (1)  (1876)  I.L.R. 1 Bom. 177.  (2) (1801) I.L.R.  14  Mad. 289. (3) (1884) I.L.R. 10 Cal. 639.  (4) (1883) I.L.R. 5 All. 509 (F.B.). 94 738

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5.  Excepting  Defendant  9,  myself  and  almost  all   the Defendants agree to give. to Defendant 2 an  equal     share with others and thus come to some  amicable      arrangement between us. 6. In view of the ninth Defendant’s contentions in the  suit and in view of the fact that I have not prayed in this  suit for  a  declaration of my title to the  suit  properties  as against him, I am advised that I should withdraw the present suit for partition with liberty to institute a fresh suit as I may be advised. 7.  It  is  therefore  just and  necessary  that  I  may  be permitted  to  withdraw this suit with liberty  to  bring  a fresh suit properly framed." The Subordinate Judge held on this and the evidence of  D.W. 2  that  this family arrangement was duly proved,  and  that Defendant  10  who  was  present in  Court  when  the  above statement was made, did not choose to deny it. The  High Court rightly pointed out that the  affidavit  did not  show the compromise as a completed fact, and  also  did not accept the word of D.W. 2. The claimants, who are stated to  have  given a share to Ramasami Pillai,  have  not  been examined.   The High Court also noticed that no  application for  transfer  of  the pattas was made.  In  view  of  these circumstances which are all correct, the appellant cannot be said   to   have   successfully   established   the   family arrangement, and we do not consider it necessary to  examine the oral evidence in the case. This  brings us to the last point that Ramasami  Pillai  was entitled to a share in the properties comprised in Sch. 4-A. M.  Picha Pillai had filed O.S. No. 35 of 1924  against  his cousins  for possession of these properties.  The  suit  was decreed  on  September 19, 1927.  On October  30,  1927,  P. Picha  Pillai  (Defendant  7) and  Serindia  Pillai  sent  a notice,  Ex.  P-3, informing M. Picha Pillai that  he  could take  possession of the properties covered by,  the  decree. This  notice  was refused and returned to the  senders.   M. Picha Pillai died soon afterwards on December 10, 1927.   It is contended that the properties thus remained in possession of the judgment-debtors, and the decree not 739 having been executed, the present suit filed on October  18, 1939, is barred in so far as those properties are concerned, and the Devasthanam cannot get possession of them. Both  the  Courts below have concurred in  holding  that  M. Picha  Pillai  must have got possession  otherwise  than  by execution  of  the  decree, because even   D.W.  2  not very friendly  to the Devasthanam admitted that M.  Picha  Pillai was  at the time of his death in possession of all the  suit properties.  The two Courts below also adverted to the  fact that for the years, Faslis 1338 and 1339 the 10th  defendant paid the taxes, and this would not happen if the heirs of M. Picha,  Pillai  were not in enjoyment.  The  fact  that  the patta  stood in the names of the  original  judgment-debtors would  not indicate anything, because mutations some.  times lag  behind change of possession.  In view of the fact  that the two Courts below have agreed on the finding and there is evidence to support it, we see no reason to interfere. The  question of mesne profits was not pressed,and no  other point  having  been argued, we hold that the appeal  has  no merits.  It will, accordingly, be dismissed with costs. Appeal dismissed.