Norman Macleod, Kt., C.J.
1. The plaintiff sued to recover possession as owner of the suit lands from the defendants. The lands originally belonged to one Bhimaji, who was the only brother of the first defendant Dattu. He was adopted into the other branch of the family, whose pedigree appears at p. 4 of the print, by Appaji. He died in 1905 leaving a son Baburao, who admittedly at that time was a lunatic. Bhimaji, before his death, executed a malkipatra in favour of the first defendant, and I gather from the record that Bhimaji, who must have been aware of his son's lunacy, executed the document in favour of the first defendant on the understanding that he should undertake to look after Baburao.
2. In 1906, plaintiff filed a suit in the Athni Court against Dattu, claiming as the person entitled to succeed to the property of Bhimaji after the death of Baburao, who he alleged had recently become a lunatic, to obtain a declaration that the malkipatra alleged to have been executed by Bhimaji in favour of defendant No. 1 on July 10, 1905 was a forgery. The defendant contended that the plaintiff could not maintain the suit as he was not the heir of Bhimaji. The first issue was-Is the plaintiff entitled to maintain the suit? Now, as in the plaint it was alleged that Baburao was the son of Bhimaji, he would be the only heir under Hindu law, and it was not alleged by the plaintiff that Baburao was incapable of succeeding on account of insanity. It is obvious, therefore, on the face of the plaint, that the plaintiff could not possibly succeed, as he had no interest whatever in the property, except as a possible reversioner after Baburao died without leaving an heir. The defendant in his written statement pleaded that according to law the plaintiff J could never become the nearest heir of the deceased Bhimaji under Hindu religion and Shastras. He could not become the nearer heir than the defendant himself. In paragraph 7 he pleaded that the plaintiffs suit could not go on unless plaintiff's brother Ramkrishna Narso, and deceased Bhimaji's son Baburao and daughter's sons Bhimaji alias Sarjerao and Balaji Datto Kulkarni were made parties. That was perfectly correct as an answer to the plaintiff's suit, because, according to the plaintiff himself, Baburao would certainly be concerned in disputing the document set up by the defendant.
3. Baburao died in 1917, and plaintiff! brought this suit on April 10, 1918. His main point was that Baburao, unless he was a congenital idiot, was not debarred from succession on the death of Bhimaji, and, therefore, Baburao succeeded to Bhimaji's property, and succession opened only on Baburao's death.
4. On the question whether insanity to be a cause for exclusion rom inheritance must be congenital, in the 9th Edition of Mayne's Hindu Law, page 872, it is stated:
There is a difference of opinion as to whether insanity also need be congenital. The texts and cases are all collected and discussed in a judgment of the High Court of Bombay, The question for decision was only as to blindness, but the Court expressed a strong opinion that madness, as well as blindness, must be shown to have existed from birth. It may, however, be doubted whether the texts which go to this extent do not refer to the case of idiotcy, which is always congenital, while madness, as distinguished from idiotcy, is rather a disease than an incapacity of the mind. Cases of disability from lunacy have come at least twice before the Privy Council. In one, Baboo Bodhnarain Singh v. Baboo Omrao Singh (1870) 13 M.I.A. 519, it was admitted that the lunacy was not congenital, and it was assumed that the only question was whether the insanity had existed at the time the succession opened. In the second, Kooer Goolab Sing v. Sao Kurun sing (1871) 14 M.I.A. 176, no question was raised as to the date of the lunacy. From the fact that the lunatic was a married man and a father, it is most probable that he had not been born so. On the other hand, in Bengal, Allahabad and Madras, it has been expressly held that insanity at the time the inheritance falls in is sufficient to exclude; and, in the second of the oases cited below, it was further held that the insanity itself need not be incurable. If it was sufficient to prevent the claimant from offering the proper funeral oblations be was an unfit person to succeed.
5. The question was first considered in Braja Bhukan Lal Ahusti v. Bichan Dobi (1872) 9 B. L.R. 204 reported in a note to the case of Dwarkanath Bysak v. Mahendranath Bysak (1872) 9 B. L.R. 198. It was decided in those cases that in order to exclude a person on the ground of insanity, it was sufficient to show that when the succession opened he was mad and not in a position to perform funeral oblations.
6. In Deo Kighen v. Budh Prakash I.L.R. (1883) All. 509 and in Ram Singh v. Musammat Bhani I.L.R. (1915) 38 All. 117 the same view was taken.
7. The latest decision is in Mathusami Gurukkal v. Meenammal I.L.R. (1918) 43 Mad. 464. Mr. Justice Sheshagiri Ayyar considered all the texts on the subject and the authorities, and came to the conclusion that insanity, as a ground of exclusion from inheritance under Hindu law, need not be congenital. One apparent error appears in the judgment at page 467, where the case of Murarji Gokuldas v. Parvatibai I.L.R. (1876) 1 Bom. 177 is cited as an authority for the same conclusion. But it would appear from the judgment of Sir Michael Winthrop in that case, that although the learned Judge was only considering the question whether blindness to cause exclusion from in. heritance must be congenital, after examination of the texts he expressed the opinion that madness, as well as blindness, to disqualify a person from inheritance, must be congenital. That opinion, although entitled to the very greatest respect, still cannot be regarded as anything else but obiter. When we find that from 1870 up to the present time the High Courts of Bengal, Allahabad and Madras have consistently been of opinion that insanity to cause exclusion from inheritance need not be congenital, I am not prepared to express a contrary opinion. I think, therefore, that the Judge of the Court below was right in holding that Baburao was incapable of inheriting to Bhimaji.
8. The only other question is whether the defendant is estopped from pleading that Baburao was incapable of inheriting to Bhimaji by virtue of the decision in Suit No. 8 of 1906. If it could be shown that he represented to the plaintiff at that time that Baburao was the heir, and that there was no ground for his exclusion from the inheritance, that on account of that representation the plaintiff refrained from filing the suit until the death of Baburao, then possibly it might be said that the defendant is now estopped from raising his present contention. But all the proceedings in Suit No. 8 of 1906 clearly show that the plaintiff was out of Court on the representation made by him in his plaint, therefore the plaintiff cannot be said to have refrained from taking proceedings to establish his right to succeed after Baburao on account of any representation made by the defendant. The appeal, in my opinion, fails and must be dismissed with costs.