1. In this case there are only three issues :-
1. Whether the plaintiff is the nearer heir to the deceased Mawa Paga than the defendant.
2. Whether the plaintiff is not disqualified by reason of his suffering from leprosy of a virulent and incurable type as in the written statement alleged.
3. Whether the plaintiff is not disqualified by his being a helpless cripple by the loss of his toes and fingers.
2. As to the first issue, the plaintiff is the grand-son of Mawa's paternal uncle. Mawa is the propositus. The defendant is the widow of a son of a younger paternal uncle of Mawa. On this issue I find it impossible to distinguish the present case from that of Rachava v. Kalingapa ILR (1892) 16 Bom. 716. That was a decision of two Judges, one of whom was Mr. Justice Telang. In my opinion it is not open to me, if I wished to do so, to dissent from that case; but I would mention that the learned Judges there followed a judgment of Sir Charles Sargent and Mr. Justice Telang in Ramchandra v. Krishnaji, Second Appeal No. 624 of 1888, heard on the 12th March 1891. I have referred to that case and find that the learned Judges confirmed the rule which the lower Court had applied and which as Telang J. says at p. 720 gave rise precisely to the same soint as in Rachava v. Kalingapa (1892) I.L.R. 16 Bom. 716. I would only add that as pointed out in the note at the page 718, assuming the defendant herein to be ' half the body of her husband', yet the plaintiff the son of the defendant's husband's first cousin 'is even as himself'. In my opinion, therefore, I must answer the first issue in the affirmative.
3. As to the second issue, there has been more, if possible, than the usual divergence of medical evidence as to the plaintiff's condition. On the one hand we have Col. Quicke and Col. Collie, who say that the plaintiff is suffering from a, form of leprosy which is incurable and they are supported by Dr. Row. On the other, we have the evidence of Col. Childe, Dr. Choksey and Dr. Turkhud who say that the plaintiff is self-cured of leprosy; and there is this much to be said in favour of the plaintiff's case that bacteorological tests were applied to secretions from his nose, which we are told is the focus of leprosy and no leprous bacilli were found therein. From the evidence, it appears there are three types of leprosy wellknown, viz. tubercular or nodular, anaesthetic and mixed. Fortunately, I am not compelled to decide between these conflicting opinions for I have come to the conclusion that the plaintiff is not suffering from that form of leprosy which necessitates his exclusion from this inheritance as his is the anaesthetic form as all admit positively. According to West and Buhler, pages 154, 561, 579, leprosy which disqualifies a man from inheriting must be what isknown as ulcerous or black leprosy. According to Mohunt Bhagavan Ramanuj Das v. Mohunt Roghunundun Ramanuj Das (1894) 22 I.A. 94 it must be of a virulent type and incurable or of a sanious or ulcerous type-see Ananta, v. Ramabai ILR (1877) 18 Bom. 554. See also Janardhan Pandurang v. Gopal (1868) 5 B.H.C. A.C.J. 145; and as stated in Issur Chunder v. Ranee Dossee (1865) 2 W.R. 125 the strictest proof of the leprous condition is necessary. As far as I have been able to ascertain the reason for the disqualification of a man suffering from leprosy supported by the authorities I have mentioned is that he must be in such a condition that the society of his fellowmen must be refused to him.
4. Now in the present case, it must be borne in mind, the plaintiff's leprosy is not of such a type, but is, the anaesthetic or nerve type. He appeared before me. The tops of his fingers were bent inwards and I was told that his toes were in the same condition. He could use his hands and tried to pick up an inkstand with one hand in Court but could not do so with one hand and so he used both the hands. He swore and it is not denied that he has been recently in charge of carpenter's work. There was nothing whatever repulsive in his appearance. He was a bright intelligent little man. The evidence showed that he has got an ulcer at the bottom of one of his feet under the toes, but it appears that it is a painless ulcer, although it has got a discharge and the evidence for the plaintiff was to the effect that the discharge was not of a leprous character. It would be impossible, I think, not to give every weight to the result of the bacteorological examination and to the evidence of two men such as Dr. Choksey and Dr. Turkhad, who have been living amongst and taking care of lepers at the Lepers' Asylum for several years each.
5. On the whole, I have come to the conclusion that this issue must be answered in the negative.
6. I would add that no evidence was given as to the plaintiff's condition when the inheritance opened out in 1906, although perhaps this is somewhat of a technical objection.
7. As to the third issue, it would be impossible, in my opinion, to describe the plaintiff as a helpless cripple and I decide this issue in the negative. I have found the issues as above and accordingly I pass a decree for the plaintiff, as prayed, with costs throughout.