1. The plaintiff has tiled this suit for a declaration that she, as the heir of her deceased husband, is entitled to all the properties left by him and that Bai Premcore, her mother-in-law, had no right or interest in the estate left by her son except that of maintenance and residence and for a declaration that the deed of settlement made by Premcore is null and void and does not affect the plaintiff's interest in her husband's estate; and that the first defendant has no right or interest therein as a trustee and in the alternative for a declaration that Bai Premcore had no right to fix the amount of her maintenance and the amount so fixed is not binding on her.
2. It appears that the plaintiff was married to one Maganlal Uhelabhai in the year 1915 when she was about twelve years old and Maganlal Ghelabhai died on October 27, 1916, leaving him surviving the plaintiff his childless widow and a mother named Bai Premcorebai. There is no dispute that the plaintiff should have been the heir of Maganlal Ghelabhai according to Hindu law but the defendant's case is that the plaintiff is disqualified from inheriting the estate left by her deceased husband because she is deaf and dumb.
3. The plaintiff's case is that in order to disqualify her from sharing in the inheritance she must be proved to have been deaf and dumb from birth or in other words congenitally. The plaintiff's case is that she was attacked with plague in Samvat year 1964 and in consequence of that disease she lost her power of speech and also her sense of hearing. The plaintiff's case is that unless it is satisfactorily proved that she was deaf and dumb by birth she is not disqualified from sharing in the inheritance.
4. On the other hand it is contended on behalf of the defendants by Mr. Setalvad that it is not necessary that dumbness must be congenital or by birth. It is enough if it is proved that the dumbness is incurable and that the plaintiff was dumb at the time when the inheritance opened, i. e., at the time when Maganlal died; and he further states that if it is held that dumbness must be congenital, the evidence in this case sufficiently and satisfactorily proves that the plaintiff was dumb and deaf from her birth. It is common ground that the plaintiff was dumb at the time of the death of her husband, viz., in October 1916. It is also common ground that the plaintiff has been dumb and deaf since she was about three or three and a half years old. Therefore the question I have to determine is whether under Hindu law, to exclude a person from inheritance it is necessary that a person should be deaf and dumb from birth or is it sufficient if a person is proved to be deaf and dumb at the time when the inheritance opens out. Many cases have been cited at the bar. The text from Manu has been cited and it reads as follows:-
Eunuchs, and outcastes, 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.
5. It has been argued on behalf of the defendants by Mr. Setalvad that under this text, in order to disqualify a person from inheriting he must be blind and deaf from birth, the adjective 'born' does not apply to the, other disqualifications which are mentioned, viz., mad men, idiots and those who have lost a limb. It is urged that in the case of Murarji Gokuldas v. Parvatibai I.L.R. (1876) 1 Bom. 177. Westropp C.J. has decided that 'according to Hindu law, as prevailing in the Bombay Presidency, blindness, to cause exclusion from inheritance, must be congenital' and under the text in Manu also it is quite clear that blindness must be from birth, i. e., persons who are born blind and the learned Judge in the course of a very exhaustive, learned and considerate judgment considers other grounds of exclusion also and comes to the conclusion that the other grounds of exclusion must also be congenital. Although this dictum was obiter so far as the decision in Murarji Gokuldas v. Parvatibai was concerned, yet coming as it did from an erudite and learned Judge like Sir Michael Westropp it is entitled to very great respect. I have therefore now to consider whether under Hindu law, dumbness must be congenital in order to exclude a person from sharing in the inheritance. It has been urged by Mr. Bhandarkar for the plaintiff that the case of Vallubhram Shivnarayan v. Bai Hariganga (1867) 4 B.H.C.R. 135 decides that dumbness must be congenital to exclude a person from inheriting. I must say that having regard to the question that was at issue in that case, it. was assumed that the person there was deaf and dumb by birth and the only question at issue there was whether the text applied to females also. The text writers have mentioned other cases showing that dumbness must be congenital. Then the case of Charu, Chunder Pal v. Nobo Sunderi Dasi I.L.R. (1891) Cal. 327 has been cited. This case clearly shows that it was assumed that the person there was born deaf and dumb and this question about the exclusion of a person from inheriting on account of dumbness from birth was not decided at all by Norris J. as appears from his judgment which says (p. 330):--
Baboo Umakali contended that, dumbness to render the person afflicted therewith incapable of performing religions ceremonies, and therefore of inheriting, need not be, as in the case of blindness and deafness, congenital; that if a man was dumb when the succession opened out, he was ipso facto excluded from the inheritance as being a person incapable of performing religious ceremonies, and thereby conferring spiritual benefits on the deceased owner of the property. In the view I take of the first branch of the learned pleader's contention, I think it is unnecessary to express any opinion upon this point.
6. Therefore in this case Norris J. does not express any opinion on the point, viz., whether dumbness must be congenital or not, Similarly Bannerji J. in his judgment at p. 332 also says 'a good deal of argument was addressed to us on behalf of the appellant to show that dumbness in order to disqualify a person from inheriting need not be congenital.' Therefore it is quite clear that both the learned Judges did not decide whether dumbness must be congenital or not, but Bannerji J. goes further and expresses an opinion that ' if it wore necessary to decide that question in this case I should have felt inclined to answer it in favour of the appellant's contention.' further it must be observed that Sir Michael Westropp in Murarji Gokuldas' case has stated that blindness also should be congenital to exclude a person from sharing in the inheritance. On that point both the Madras and our own High Court have subsequently decided that it need not be congenital, for in Muthusami Gurukkal, v. Meenammal I.L.R. (1918) Mad. 464 it is held that insanity, as a ground of exclusion from inheritance under Hindu law, need not be congenital, and our present Chief Justice in Bapuji v. Dattu : AIR1923Bom425 has stated that (p. 407):-
It would appear from the judgment of Sir Michael Westropp in Murarji Gokuldas v. Parvatibai I.L.R. (1876) 1 Bom. 177 that although the learned Judge was only considering the question whether blindness to cause exclusion from inheritance 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.
7. The conclusion he has come to is that it need not be congenital. But having regard to the text of Manu I feel diffident in expressing an opinion on the text of Hindu law, not knowing Sanskrit; on which the whole interpretation is based. I do not profess to be very learned in Hindu law but having regard to the position of the word 'born' before the words blind or deaf (I read the text from Manu) it is clear that in order to exclude persons only blind and deaf, these defects must be there from birth. There are no-decided cases on this point nor have the text writers given any authority for the proposition that dumbness must be also congenital. On the authority of the expression of opinion by Bannerji J. in Charu. Chundar Pal v. Nobo Sunderi Dasi I.L.R. (1891) Cal. 327. I hold that it is not necessary according to Hindu law that dumbness must be congenital in order to disqualify a person from sharing in the inheritance.
8. But it is further contended by Mr. Setalvad that the evidence in this case clearly shows that the plaintiff was dumb by birth. For that purpose it is necessary to examine the oral evidence that has been adduced in this case. [After a discussion of the oral evidence on the point, the judgment proceeded:] Therefore on the oral testimony I must hold that the facts in this case clearly prove that the plaintiff was dumb congenitally and not as a result of any malady such as an attack of plague she had in Samvat year 1964.
9. Then the other question which Mr. Bhaudarkar has urged is the question of maintenance fixed by Premcore the plaintiff's mother-in-law. Mr. Bhandarkar has urged that the amount of maintenance so fixed by Premeore is inadequate and insufficient for her needs and the plaintiff is not bound to accept the same and that she should be treated more liberally in respect of her maintenance.
10. Mr. Bhandarkar has urged that under Hindu law. in a case like this, where a woman but for this disqualification would have become the heir of her deceased husband and got all the property, the basis of awarding maintenance should be the income of the whole property. He cited in support of this a passage from Sircar's Hindu Law, p. 377. Unfortunately the passage does not support him. The passage is in these terms:-
Hence what thy Hindu law seems to provide is that their shares should be in the possession of the other members who must furnish them and their family with maintenance and defray the expenses of marriage of their daughters.
11. This does not mean that the income of the whole share which but for this disqualification would have been theirs, should be given to them. It only means that if she is a female and has daughters then the marriage expenses of such daughters must be provided for. If a male member is disqualified by reason of dumbness, not only what is necessary for him must be provided, but what is also necessary for marriage expenses of his daughters should be provided for.
12. Further he relied on a passage which is cited by Wilson J. in the case of Sm. Karoonamoyee Dabee v. The Administrator-General of Bengal (1890) 9 C.W.N. 651. With every word in that passage I agree, viz.: The principle which should govern the Court in fixing the maintenance of a Hindu widow is first to look to the mode of life of the family during her husband's lifetime and the amount fixed must be sufficient to allow the widow to live as far as may be consistently with the position of a widow in something like the same degree of comfort and with the same reasonable luxury of life as she had in her husband's life-time. Then to see what the husband's estate is and also to see how far that estate is sufficient to supply her with maintenance on this scale, without injustice to other members of the family who also have their rights to maintenance out of the estate, like hers.
13. Mr. Bhandarkar has urged there are no other members of the family whose rights to maintenance out of the estate have to be considered and as there would be no injustice done to any other member of the family, the whole income of the property left by her deceased husband should be given to her.
14. In fixing the maintenance of a Hindu widow the principles laid down in the above passage have always been followed. Those principles will be followed even in this case but it has not yet been clear in this case what the total income of the properties left by her deceased husband is. For the purpose of fixing the amount of maintenance, I have to take into account the income of the property the subject-matter of the deed of settlement also. Further it was urged that Bai Premcore sold one of the properties to the first defendant. Then Bai Premcore in her application for letters of administration of the property of her deceased son has sworn the property to be worth Rs. 58,000. The Court is not yet in a position to know what income the properties yield. But having regard to the principles referred to above there will be no difficulty in coming to a conclusion as to what amount should be given for maintenance to the plaintiff when the income of the properties is properly assessed.
15. The last point urged on behalf of the plaintiff is that the deed of settlement made by Premcore must be set aside. It is, however, well-established law that a deed of settlement cannot be set aside at the instance of a person who has a limited interest. It could be done at the instance of even a remote reversioner. In any case I cannot set aside the deed of settlement at the instance of the plaintiff who is only entitled to a right of maintenance. The best course for the plaintiff would be to advertise for the next reversioner and then file a suit for setting it aside.
16. There was one point which I have omitted to mention and that is about the conduct of Kanji the next friend of the plaintiff. It is urged that Bai Premcore made an attempt to make a will. Kanji had read it and had approved of the provisions and had undertaken to carry out the provisions of that will and today he is in Court as the next friend of the plaintiff. I do not attach much importance to the conduct of Kanji for on the materials we have in this case there is ample evidence to show that the plaintiff was dumb congenitally. This dumbness was not the result of any malady or the result of the attack of plague she had as testified by Dr. Ohoksey.
17. Mr. Bhandarkar urges that there is no sufficient evidence that this dumbness of the plaintiff is incurable. So many people observed her while she was young. The plaintiff is now about nineteen years, a Vaid from Jamnagar had occasion to see the plaintiff and he said that medicine could do nothing in her case. Nothing has been done for the last sixteen years and we may take it for granted that the plaintiff will have to remain in this unfortunate position for the rest of her life.
18. I must hold that this is a case of incurable dumbness.
19. The result is that as far as the maintenance is concerned, the suit cannot be dismissed but as to the declarations which the plaintiff has asked for those must all be refused an d I hold that the plaintiff is disqualified from sharing in the inheritance on account of her incurable dumbness which need not be congenital. But if it is held that it should be congenital the facts in this case clearly prove beyond any doubt that in the case of the plaintiff, the dumbness was congenital.