Michael Westropp, C.J.
1. The subject matter of this suit consists of Government promissory notes and money in the hands of the defendants which in the lifetime of Gokuldas Vithaldas belonged to him. He died at Porebunder, without issue, in June 1873. Parvati, the plaintiff, as his alleged heir, sues to recover the property in question. The defendants rely upon a will, alleged to have been made at Porebunder by Sakerbai, the widow of Gokuldas Vithaldas, on the 24th of August 1873. Sakerbai died on the 2nd of September 1873. She appears to have become blind some time previously to the death of her husband. One of the points relied upon on behalf of the plaintiff Parvati, before us at the hearing of the appeal, was that Sakerbai's blindness disqualified her for inheriting from her husband, and, therefore, that her will, even if genuine, could not affect the property in dispute. Mr. Justice Bayley, having decided in favour of the plaintiff Parvati upon another ground, did not give any opinion on this question as to the competency of Sakerbai to inherit.
2. It is admitted that Sakerbai's blindness was not congenital. It supervened in comparatively recent years as she advanced in life, but in the lifetime of her husband, and, upon the evidence, we think that she must be regarded as toally blind at the time of his death. The question, therefore, for solution is, whether total blindness, not congenital, prevents the person so afflicted from inheriting.
3. Manu, the chief of the Rishis, and of whose high authority at this side of India there cannot be any doubt, (see the remarks of Sausse, C.J., in Pranjivandas Tulsidas v. Devkuvarbai) (1 Bom. H.C. Rep., 130; see p. 131) in Chap. IX, pl. 201, of Sir W. Jones' Translation by Haughton, says: 'Eunuchs, and out-casts, persons born blind or deaf, madmen, idiots, the dumb, and such as have lost the use of a limb, are excluded from a share of the heritage.' This text is also to be found in Jagannatha's Digest, Vol. III, Bk. V, Ch. V, pl. cccxxix. Commenting upon it, Jagannatha commences with a reference to the doctrine of the Retnakara, which expounds the text by remarking that, 'by the mention of birth the legislator (Manu) suggests the incurableness, not the origin, of the blindness.'Jagannatha says of that exposition:'The meaning is, as persons afflicted by a hopeless malady must be supplied with food and raiment, so must he who is afflicted by incurable blindness and so forth.' We should here observe that the Retnakara, though of authority in Maithila, is not so in this Presidency. Jagannatha does not accept its non-natural exposition of the text of Manu as correct. Referring to that exposition he says:'That is not the opinion of Calluca Bhatta, for he expounds the text thus:'Eunuchs, fallen sinners, persons born blind or devoid of the sense of hearing, madmen, those who support not the performance of duty, and such as are deprived of speech.' 'Calluca Bhatta's commentary is much valued in this Presidency. Jagannatha adds that Jimuta Vahana says the word 'born' is connected both with 'blind' and with deaf '(see to that effect the Daya Bhaga, Ch. V, pl. 7, 9). Jagannatha continues: 'In expounding the text of Devala above cited (cccxxi)', (hereinaftermentioned), 'he (Jimuta Vahana) says 'blind' signifies born blind; for this coincides with the expression 'born blind or deaf' in the text of Manu. In practice the succession of one who becomes deaf in the course of his life occurs, even though the deafness be incurable: the same is also proper in a case of blindness. Consequently the term must be understood as signifying one born blind, or born deaf;' and Jagannatha subsequently observes: ''such as have lost the use of a limb' not such as have lost any organ generally, (for that would include a vain repetition of the terms blind and deaf); but such as have lost the use of some one limb; for example, wanting the use of a hand or of a foot. The repetition of blind' and the rest may be supposed by the same rule by which two names of kine are at once employed in a general and particular sense. 'Wanting the use of a foot' in effect signifies lame.' Srikrishna Tarkalankara in the Daya Krama Sangraha, Ch. III, after quoting the texts of Manu, says:''Born blind and deaf.' That is by nature, and not those who have become so from some adventitious cause: the meaning, therefore, is those who are blind and deaf from the period of their birth.'
4. In the same (3rd) volume of the Digest, Bk. V, Ch. V, pl. cccxxxi, Jagannatha, as translated by Mr. Colebrooke, gives the following text of Yajnyavalkya, another of the Rishis of great authority:'An out-cast and his son, an eunuch, one lame, a madman, an idiot, one born blind, and he who is afflicted by an incurable disease, must be maintained without any allotment of shares.' Vachaspati Misra, in the Vivada Chintamani, as translated by Prosonno Coomar Tagore, gives the same text thus:'An out-cast and his son, an impotent person, one lame, a madman, an idiot, one born blind, he who is afflicted with an incurable disease, and the like, must be maintained without any allotment of shares.' In both of these readings it will be observed that the word 'born' precedes 'blind', and neither of the translators uses italics to indicate that the word 'born' is his interpolation. It is, therefore, reasonable to assume that in the Sanskrit MSS., from which Jagannatha and Vachaspati Misra thus quoted, the text contained the word 'janma' or some similar word, signifying 'born' or 'from the birth.' We unfortunately have not, at present, access to Sanskrit copies of the Digest or Vivada Chintamani to which we can refer in order to ascertain how the fact is, viz., whether or not the translators only are responsible for the word 'born.' Even, however, if, as is quite possible, the use of that word is imputable to them only, it is of great importance that they, and more especially Mr. Colebrooke, should have conceived the true meaning of the word 'blind' to be 'born blind.' Colebrooke's invariable practice, so far as we know, was to denote, by italics, or brackets, words which were not in the original text and which were introduced by himself. He has, in translating the text of Devala, which we shall presently quote in extenso, introduced the word 'born' in italics before the word 'blind.' Possibly the word 'born,' used by, him in rendering the text of Yajnyavalkya, may have been intended to be in italics, and its appearance in Roman type may be the error of the printer--a supposition, which, it might be argued, is to some extent supported by Jagannatha's commentary on the same text, where he says:''Hind' signifies born blind. So the Dipacalica.' He then, however, adds: 'It should be here remarked that the term lame' being contiguous to the word blind' must signify born lame. In like manner persons deprived of the use of their hands' must signify such as are destitute of the use of both hands from the day of their birth.' It is difficult to conceive how the mere contiguity of the word 'lame' to the word blind' could indicate that 'lame' meant born lame, unless 'blind' was, in the Ms. of the original text used by Jagannatha, conjoined with 'born' or 'from the birth.' That it was so, is supported by the text as given in the translation of the Vivada Chintamani, which we have quoted. The manuscript of Yajnyavalkya, used by the authors of the Mitakshara, Mayukha, Daya Krama Sangraha, and Smriti Chandrika, would seem to have contained the word blind only; for the translators do not, in rendering the same text as quoted in those works, introduce the word 'born.' Roer and Montriou also, in their translation of Yajnyavalkya p. 46, omit the word 'born.'
5. Another Rishi of high authority, Narada, in speaking of persons disqualified for inheritance, says: One afflicted with an obstinate or an agonizing disease, and one insane, blind or lame from his birth, must be maintained by the family; but their sons may take the shares of their parents. 'We take this reading of the text from Jagannatha's Digest as translated by Colebrooke, Vol. 3, Bk. V, Chap. V, pl. cccxx, Clause 2. Jagannatha, whilst giving to this reading of Narada's text the preference, mentions, in his commentary upon it, that there is a different reading of the same text. He says:''Insane from his birth,' it is hereby intimated that one who subsequently becomes insane from the pernicious power of mineral drugs, or the like, is not excluded, any more than one who subsequently becomes blind or lame. In the Vivada Chintamani the text is read 'idiot (jada), insane, blind or lame' instead of 'insane, blind or lame from his birth (janma)'; 'idiot' is there explained 'one who is incapable of discrimination.'' In Prosonno Coomar Tagore's translation of the Vivada Chintamani (pp. 244, 245) the author, Vachaspati Misra is represented as quoting Narada thus:' Those of the family who are afflicted with long and painful disease, an idiot, one who is insane, blind or lame, should be maintained, but their sons are partakers of the inheritance. Vachaspati Misra's commentary upon that text is:Long disease means consumption and the like.' But Srikrishna, in the Daya Krama Sangraha, Ch. Ill, pl. ii, speaking of the same text, says: ''Long' that is, from the period of birth.' In the Sanskrit version of Narada given by West and Buhler, Vol. I, p. 347, text 21, 22, and in their translation, Ibid, p. 354, pl. 21, 22, the blind are not mentioned amongst the persons excluded from inheritance, nor is the phrase 'born' or 'from the birth' associated with any of those persons, nor does the term 'nirindraya' occur in that version. Those remarks are true also with regard to the version of the same texts of Narada as given in Mr. Burnell's translation of the Daya Vibhaga of the Madhaviya, p. 39 pl. 41, and in the translation of the Smriti Chandrika of Kristnasawmy Iyer, p. 61, pl. 5.
6. Devala's text on this subject, as translated by Colebrooke in 3 Dig., Bk. V, Ch. V, pl. cccxxi, is:'On the death of a father, or other owner of property, neither an impotent man, nor a person afflicted with elephantiasis, nor a madman, nor an idiot, nor one born blind, nor one degraded for sin, nor the issue of a degraded man, nor a hypocrite or impostor, shall take any share of his heritage.' The word 'born' is in italics, and, therefore, is the interpolation of the translator. That translator being Mr. Colebrooke, it is important to know that a scholar, so eminently competent, understood Devala, in referring to blindness as a disqualification, to mean congenital blindness only.
7. In the same volume, book, and chapter of the Digest is the following text of Baudhayana (cccxxviii):'persons incapable of transacting business, blind men, idiots, those who are immersed in vice, or afflicted by incurable diseases, and even those who neglect their duties, (but not the degraded, nor their issue), let the heirs supply with food and apparel.' Of this text Jagannatha says (inter alia) '' blind men,' persons born blind.'
8. Neither Gautama nor Vasishta mentions the blind amongst the persons disqualified for inheritance. See 1 West and Buhler, p. 326, pl. 41 and p. 334, pl. 27, 28; 3 Dig., Bk. V, Ch. V, pl. cccxxxv, cccxxxviii.
9. Sir Thomas Strange (1 Str. H.L. Ch. 7, pp. 152 et seq., Edn. of 1830) discusses disabilities to inherit, and after saying that 'exclusion from inheritance, with the Hindu, rests, in general, upon the same principle with succession to it; i.e., it is connected with the obsequies of the deceased; from their incapacity to perform which the excluded are incompetent as heirs,' proceeds first to mention 'idiots, madmen, the deaf, the dumb, the blind, the lame, and the impotent.' Speaking of these he says (p. 153):'And it is only where these infirmities are coeval with birth that the disability attaches: though Jagannatha seems to make the case of the madman an exception in this particular; and of the impotent (who is also excluded), it is said, by a sensible author, to be indifferent whether he is naturally so or by castration.' The passage in Jagannatha's Digest, to which Sir T. Strange refers as showing that Jagannatha was of opinion that insanity is an exception to the general rule that the deficiency must be congenital, is at the commencement of his commentary on a text of Vishnu (cccxxvi) in Vol. III, Bk. V, Ch. V, page 314, where in speaking of certain diseases he says that they may proceed 'from the pernicious effects of drugs; but if they be ascertained to be the marks of an atrocious crime, or of sin in the highest degree, disability is admitted by the terms of the text of Narada (cccxx 2). See also 3 Jag. Dig., Bk. V, Ch, V, pl. cccxxv. It is the same of one who becomes insane in the course of his life.' Unless this remark as to insanity be strictly limited to such an aberration of intellect as is clearly proved by the assertors to be the result of an atrocious crime, or of sin in the highest degree, a proposition at all times extremely difficult, if not impossible, to establish, Jagannatha must be regarded as flatly contradicting himself; for, continuing the same commentary on the text of Vishnu (cccxxvi, Vol. III, p. 315), he, referring to the text of Devala, already mentioned, says:''A madman' in the text of Devala (cccxxi) signifies one insane from his birth, for the import is the same with that of the text of Narada (cccxx 2). Raghunandana explains 'idiot' one who cannot support the performance of duties: others explain the term, void of understanding. 'Blind' signifies born blind; for it coincides with the text of Narada.' With this latter conclusion, and not at all with the former, the text of Narada (cccxx, Clause 2), as already quoted from the Digest, and Jagannatha's own remarks upon the texts of Manu, Yajnyavalkya, Baudhayana, and Narada, which remarks we have already given, appear to be consistent. We should here mention that in Baboo Bodhnarain Sing v. Baboo Omrao Singh (13 Moore Ind. Ap. 519), it seems to have been admitted on both sides that lunacy, supervening before the descent of the property, prevented inheritance. Sir James Colvile, in giving the judgment the Privy Council, said (13 Moore Ind. Ap. 523) that the point was not argued either before their Lordships or in the Court below, so the Privy Council gave no opinion upon it. The sensible author, to whom Sir T. Strange refers for the opinion as to the disqualifying effect of supervening impotence, is Balambhatta, whose sex and whose estimation here are not such as to confer upon the opinion much weight.* That view seems, however, to have been also expressed by the author of the Prakasa, but is combated by Jagannatha, who says it 'is questionable: for as one who becomes blind in the course of his life ought to share the heritage, so ought one who becomes impotent.' We do not gather from the remarks of Sir T. Strange that he was of opinion that the exceptions of lunacy and impotence suggested by Jagannatha and Balambhatta ought to be recognised, although he deemed it right to mention what these writers said on the subject. Howsoever that may be, neither he nor they suggest that blindness, deafness, and lameness are exceptions to the general rule that infirmities to disqualify for inheritance must be congenital.
10. In the Mitakshara, Ch. II, Section X, pl. 3, Vijnyaneshvara quotes, without a word of disapprobation or dissent, the text of Manu already mentioned. The word 'nirindraya' in that text, which Sir William Jones has rendered 'such as have lost the use of a limb,' Mr. Colebrooke has in his translation of the Mitakshara rendered thus 'those who have lost a sense [or a limb].' The learned Counsel for the plaintiff have relied on the next passage, plac. 4, which is: 'Those who have lost a sense [or a limb]. Any person who is deprived of an organ [of sense or action ] by disease or other cause, is said to have lost that sense or limb' [nirindraya], and contend that it would include blindness which supervened as well as congenital blindness. No doubt the term 'nirindraya' standing alone may indicate the loss of a sense, organ, limb, or member. We must depend upon the context to discover which of these meanings the Rishi intended it to bear. Seeing that Manu had already in the same text made express provision for the impotent, the blind, the deaf, the dumb, the insane and the idiotic, we are strongly inclined to think that by 'nirindraya' he intended to provide for those who were deficient in a limb or member, and that Sir William Jones correctly interpreted his meaning. And we are strongly fortified in that conclusion by finding that it is that also of Vachaspati Misra in his Vivada Chintamani. Commenting on the text of Manu, he says:'Those who have lost the use of a limb signifies those who have been deprived of a hand, a leg, or any other member of the body. Such persons are not competent to perform ceremonies relating to the Vedas and Smriti. They are consequently not entitled to inherit paternal property. (Vivada Chintamani translated by Prosonno Coomar Tagore, p. 243).
11. But, even assuming that Manu meant by 'nirindraya' to indicate deficiency in a sense, organ, limb, or member, we think that, in including deficiency in a sense or organ, he must thereby have meant deficiency in a sense or organ not already provided for, and that we should give a forced and unnatural construction to his language if we were to hold that, after expressly providing that congenital blindness or deafness should disqualify, he meant by 'nirindraya' that blindness or deafness from any cause should have the same effect. The rule expressio, unius, exclusio alterius, might be properly applied, and would thus leave the phrase 'nirindraya' in the text of Manu and the 4th placitum of Section X, Chap. II of the Mitakshara to operate, not only where there is a deficiency of limb or member, but also a deficiency of any sense or organ not expressly provided for by Manu. We are not, however, to be understood as deciding that a deficiency in any sense or organ is in those passages implied in the word 'nirindraya' as employed by Manu in Ch. IX, pl. 201, or anything more than that he is not by that term to be understood as referring to deficiency in any sense or organ for which deficiency he had already specially provided.
12. Nilakantha, in the Mayukha, Chap. IV, Section XI, quotes, amongst other texts, that of Manu, without contradicting or qualifying it, but with this remark: that, as to the words 'have lost a sense (nirindraya),' they mean 'deprived of the nose or the like.' The translator, Mr. Borrodaile (possibly following the Smriti Chandrika Ch. V, pl. 61) after the word 'nose,' adds in a parenthesis 'or smell,' but that is merely conjectural. Assuming, however, that he be right, it would not interfere with our view that blindness, deafness, or any other deficiency specially provided for by Manu in the same text does not fall within the term 'nirindraya' as used by him. But it is hardly probable that, if supervening deficiency in the more valuable senses of sight or hearing, or in the organ of speech, or in the reasoning faculty, were not permitted by Manu to work disherison, he regarded a deficiency in the minor senses of taste, touch, and smell as sufficient to produce that effect.
13. Vachaspati Misra, in the Vivada Chintamani, quotes, as we have mentioned, the same text of Manu, and without in anywise qualifying, contradicting, or objecting to the word 'born.'
14. The three books of chief authority in Western India are Manu, the Mitakshara, and Mayukha. Of these Manu is express on the point that blindness, to disqualify for inheritance, must be congenital. He is quoted and not contradicted by the Mitakshara, Mayukha, and Mahadaviya (Burnell's translation of Daya Vibhaga, p. 39, pl. 49), and is expressly supported by Narada and also by Yajnyavalkya, if the reading of his text be correctly given by Jagannatha and Mr. Colebrooke Manu is also supported by Jimuta Vahana and Jagannatha, the authority of whom, respectively, stands higher in Bengal than here. Sir Thomas Strange and Mr. Colebrooke we understand as holding that disqualifying blindness must be congenital.
15. We now proceed to advert to the decisions.
16. There are two cases in Borrodaile's Reports on the effect of blindness as a cause of disherison. In neither does it appear whether or not the blindness was congenital. In the case of Daee v. Poorshotum Gopal (1 Bor., 453, Edn. of 1862), a widow who was blind was held disqualified, but it is not stated whether she was blind from her birth. In the case of Ruvee Bhudr Sheo Bhudr v. Roopshunker Shunkerjee 2 Bor. 713, 723 Edn. 1862), the appellant was stated to be both blind and deaf, but it is not said whether he had been so from his birth, and the case seems to have been decided against him upon different grounds.
17. The authorities cited by the Shastri at page 284 of 1 West and Buhler does not support his answer there given to question No. 1. Those authorities, are the Mitakshara and Mayukha, both of which, as we have seen, quoted without disapprobation, Manu's text, requiring that blindness to disinherit must be congenital. Question 2, at page 285, does not state whether the blind man there mentioned was blind from his birth. The Shastri denied that he could be dispossessed. We have consulted our brother West with reference to the remark made by him and Dr. Buhler upon that question and the Shastri's answer to it, in which remark they say that, 'if the man was blind at the time the inheritance would have devolved upon him, that circumstance would act as a disqualification.'
18. Our brother West says that, taking the literal reading of the Mitakshara as their guide, he and his learned colleague felt bound to give the sense of 'andha' in Yajnyavalkya's text as 'netrendriya vikalam;' i.e., deficient in the organ or sense of sight as in Manu, Ch. VIII, pl. 93, where the same word occurs. But he observes that 'andha' in itself may as well mean congenitally blind as deprived of sight by disease or accident, and that, if a harmony of the Smritis is to be attained by adopting the fuller expression of Manu as quoted by Vijnyaneshvara himself, 'born blind' is the preferable translation for 'andha' in Yajnyavalkya's text. He adds that, in the passage of Narada on this subject, given at 1 West and Buhler, p. 347, and translated at p. 354, the insanity which excludes is, (as already mentioned by us), according to some MSS., congenital; according to others, it is not specified to be so. The Vyavahara Mayukha in Ch. IV, Section XI, pl. 3, he observes, gives the less liberal reading of the same text in Narada, but the other (that given by Jagannatha) stands probably on as good authority. He continues: This text (according to the reading in 1 West and Buhler, 347, 354) does not exclude the blind at all, if taken by itself, and, even as to the other disqualifications, the various readings which occur in it, as in the other Smritis touching on this subject, make it unsafe to rely on it as excluding the condition 'from birth' He says:That condition occurs with reference to blindness in the text of Manu as quoted in the Mitakshara and in the Mayukha, and being accepted by Vijnyaneshvara without qualification may properly be used to explain the sense in which he used the words 'deficient in the sense of sight.' The commentator on Yajnyavalkya was, according to the accepted notion of his office, constrained to interpret the language of every other Rishi in subordination to his own master; but Yajnyavalkya himself, as quoted in the Mayukha, Ch. I, Section I, pl. 12, furnishes the rule by which a Court of Justice should be governed: If two texts differ, reason must in practice prevail.'
19. In connexion with the foregoing observations with which our brother West has greatly assisted us, and with the attainment of harmony amongst the Smritis which he suggests, we may, perhaps, refer with advantage to the text of Vrihaspati (3 Dig., pl. cccxxxiii. p. 323):'Manu holds the first rank among legislators, because he has expressed in his code the whole sense of the Veda; no code is approved which contradicts the sense of any law promulgated by Manu.' We are not to be understood as maintaining that, on questions of Hindu law, the latter portion of this text is universally true; but upon a question as to which the Smritis vary so much as that of disqualification for inheritance, we think that the pre-eminence assigned by Vrihaspati to Manu should not be forgotten.
20. To question 6, at page 288 of 1 West and Buhler, viz., can a dumb or a madman claim the property of his ancestors, or does his claim extend to a maintenance only?-the Shastri in replying said:'If a person is mad or dumb from the time of his birth he cannot claim the property of his ancestors, though he may claim a maintenance from it.' The Shastri appears to have been clearly of opinion that the insanity or dumbness which disqualifies must be congenital.
21. The Smriti Chandrika, Chap. V., pl. 9, as translated by Krishnasawmy Iyer, in its exposition of the text of Vishnu, says:'Hence it must be understood that such as appear at the time of division to have been afflicted with impotence, etc., are excluded from their shares, and that the exclusion is not confined to those only that are naturally (that is by birth) impotent or the like.' The Smriti Chandrika, however, is not a book of authority in this Presidency; and, even in Madras, where it is much regarded, we find that the High Court of that Presidency has, in Tirumamagal v. Ramasvami (1 Mad, H.C. Rep. 214), held that idiotcy to disqualify must be congenital. And, as we have pointed out, the Mahadaviya, which is of high authority in Madras, quotes the text of Manu, Ch. IX., pl. 201, without any mark of dissent or disapprobation.
22. In Vallabhram v. Bai Hariganga (4 Bom. H.C. Rep. 135 A.C.J.) it has been ruled that dumbness, to disqualify for inheritance, must be congenital, and accordingly the Court directed an issue as to whether the widow, there claiming to inherit, had been dumb from her birth.
23. Upon the best consideration that we have been able to give to this question we are of opinion that there is a considerable preponderance of authority in favour of the conclusion that blindness, to cause exclusion from inheritance, must be congenital.
24. We, therefore, hold that Sakerbai's blindness did not prevent her from inheriting the property of her husband Gokaldas Vithaldas on his decease upon the 24th August 1873.
25. The other questions in this case will now be disposed of by my brother Sargent on behalf of us both.
26. Then delivered the Judgment of the Appellate Court on the questions of fact; and the will of Sakerbai having been found to be a genuine document, and its execution not to have been procured by fraud or undue influence, the decree of the Court below was reversed.