1. In this case the plaintiff sued to recover certain, properties as the heir of her husband, to whom the properties belonged. Her husband died in 1914; and she alleged that thereafter the first three defendants, who were the Bhaubhands of her husband, got the tenants over to their side and took possession of the lands. In the course of the suit, as the learned trial Judge thought that she was mentally infirm, he appointed her brother as her next friend for the suit.
2. The defence of the first three defendants was that she was congenitally deaf and dumb, and that she was disqualified from inheriting the property as an heir according to Hindu Law. That is the only defence with which we are concerned now. The other defendants, Nos. 4-7 made common cause with the first these defendants, though in their own right they were not entitled to the property.
3. The first issue raised by the trial Court was: 'Is plaintiff born totally deaf and dumb or is she only partially deaf and dumb?' There was no separate issue as to whether she was deaf and dumb by birth ; but this issue was understood to cover that question and the parties adduced evidence on the point. The learned Judge on a consideration of the expert evidence as well as the other evidence in the case came to the conclusion that she was not deaf and dumb from birth, but that in fact she was almost totally deaf and dumb. Further, he came to the conclusion that such deafness and dumbness were sufficient to disqualify her from inheriting according to Hindu Law, though the infirmities were not congenital. He recorded findings on other issues; but, having regard to the view which he took of the disqualification of the plaintiff to inherit as an heir he dismissed her suit.
4. The plaintiff has appealed to this Court, and on, her behalf it has been urged that the lower Court is wrong on evidence in holding that she is deaf and dumb in the sense required by the rule of Hindu Law. It is urged, that she is able to utter a few syllables, and that she is able to hear loud and shrill noise. It is also urged that it is not shown in this case that the infirmities were incurable, and that the lower Court was wrong in presuming her dumbness to he incurable.
5. On the other hand, the finding that these infirmities were not congenital is not contested. But it is urged that for all practical purposes she is deaf and dumb, and even though these infirmities may not be congenital, they are sufficient in law to disqualify an heir from inheriting according to Hindu Law.
6. On a consideration of the evidence it is clear that in this case neither the deafness nor the dumbness, such as it is, is congenital. She became deaf apparently in consequence of some illness which overtook her during her early infancy and became dumb in consequence. It is true that the evidence discloses that she is able to utter a few words, and she is able to hear a little after great effort. But still it must he taken on the evidence that she is for all practical purposes deaf and dumb at present.
7. As regards the question whether her dumbness is incurable, it must be said that there is no evidence, and all that the learned Judge has said on this point is this:
The plaintiff's dumbness is presumably incurable. She has remained in that condition ever since her infancy.
8. It is quite true that she has remained in that condition ever since her infancy. But it seems to me that before an infirmity of this nature can be held to be incurable, it is for the defendants, who rely upon this fact as constituting a disqualification, to prove that it is incurable. It is very strange that enough medical evidence was recorded in the case, defendants made no attempt to prove this. Further, their evidence was mainly directed to the question whether she was deaf and dumb by birth. Under these circumstances, it seems to me that the burden of proof, which should lie upon the party relying upon this fact, has not been sufficiently discharged.
9. It may be that this infirmity may be curable. Indeed, we are informed in the course of the arguments by Mr. Gharpure for the appellant that after the judgment of the lower Court was delivered, she has been kept under treatment and training; and as a result she is slowly setting over this infirmity. This may be true or it may represent too hopeful a view of the efficacy of treatment. We have no evidence of the fact. But it is to meet such possibilities that the fact of incurability requires to be strictly proved.
10. In the present case, however, it is enough to say that it has not been shown to my satisfaction that the dumbness is of an incurable nature, though undoubtedly she has been subject to this infirmity from early infancy up to the present time. That is my view on the evidence.
11. Now, on these facts the question is, whether the plaintiff is disqualified from inheriting as an heir to her husband according to Hindu Law; and the most important point to be considered is whether deafness and dumbness must be congenital in order to constitute such disability according to the rule of Hindu Law. If it is required to be congenital according to that rule, the question whether this particular infirmity is in-curable or not becomes a subordinate question. But as a matter of law it must be considered whether the disease is incurable.
12. First of all, I shall deal with the question as to whether, according to Hindu Law, she is disqualified from inheriting even though her deafness and dumbness are not congenital. The rule on this point is to be found in Section 10, Chapter 2 of the Mitakshara; and I shall refer to the text of Yajnavalkya, which is translated in placitum 1 of that section of the Mitakshara at page 455 of Stokes' Hindu Law Books:
An impotent person, an outcasts and his issue, one larne, a madman an idiot, a blind man, and a person afflicted with an incurable disease as well as others [similarly disqualified, must be maintained; excluding them however, from participation.
13. In his commentary on this text Vijnaneshvara brings in under the expression 'adi' in the original text translated as ' others similarly disqualified' persons suffering from other diseases. In doing so he refers to the text of Manu in Adhyaya 9, verse 201, which is translated as follows in placitum 3 of the same section of the Mitakshara:
Manu likewise ordains: 'Impotent persons and outcasts are excluded from a share of the heritage; and so are, persons born blind and deaf, as well as madmen, idiots, the dumb, and those who have lost a sense [or a limb'].
14. There is nothing further in the commentary of Vijnaneshvara to throw any light on the question as to whether the dumbness, which is referred to, should be congenital. But by referring to the text of Manu, be certainly means to convey that in those cases where according to Manu the infirmity must be congenital, he would accept that view.
15. In the Vyavahara Mayukha the portion relating to this point is to be found in Section 11 of Chapter 4. The texts of Yajnavalkya and of Manu, which I have just referred to, have been mentioned by the author of the Mayukha. But he does not throw any further light on the question as to whether the particular infirmitiets should be congenital or not.
16. I may mention that Mitra Misra, the author of the Viramitrodaya, in dealing with this point, refers to both these texts, and he expresses his opinion, which is rendered as follows by Golapchandra Sarkar Sastri in his translation of the Viramitrodaya at p. 252:
'An impotent person' and a blind man if so from their birth, are certainly not entitled to shares on partition, but if they become so in the interim, are certainly entitled to shares on a partition agreeably to the mode laid down in the text,...provided their cure be effected by medication or the like.
16. Thus by implication he applies the word jati to 'impotent' (kleeba).
17. The question depends upon the view which we take of the text of Manu, and of the general rule as to disqualification which is to be found in these texts.
18. Now, it is clear that, on a grammatical interpretation of the text, the blindness and deafness, which would constitute such a disqualification, should be congenital. The word 'jati' undoubtedly applies to thee words 'andha' and 'badhira' the blind and the deaf. But it is urged that that word cannot be grammatically taken to govern the words in the second half of the verse and cannot be applied to the words meaning 'idiots the insane, the dumb and those who have lost their sense or limb.' No doubt, looking at it strictly grammatically, that is a reasonable contention. But it must be remembered that in laying down this rule of disqualification, the Smriti writers had very serious disabilities in view, and it is reasonable to think that they meant really grave cases of such infirmities which would really constitute serious disabilities in their capacity as heirs or as persons entitled to partition. This is not a mere surmise. In decided cases in which different infirmities have been dealt with, this view is fully reflected. For instance, in dealing with the case of an idiot, the Madras High Court held so far back as 1862-63 in the case of Tirumamagal Ammal v. Ramaswami Ayyangar  1 M.H.C.R. 214 that the idiocy, in order to disqualify under Hindu Law, must be congenital. I am only referring to this as an illustration, and I am not concerned to pause to examine the ratio decidendi of this case.
19. As regards the insane, the more recent decisions are to the effect that the insanity need not be congenital. The difficulty with reference to that infirmity also is sufficiently reflected in the judgment of Westropp, C.J., in Murarji Gokuldas v. Parvatibai  1 Bom. 177. By referring to this difficulty I do not wish in any sense to cast any doubt on the view which has been taken in the decisions relating to insanity as a ground for disqualification.
20. Then, as regards 'nirindriyah,' i. c., one who has lost his sense or limb, as an illustration I may mention that lameness, as a ground of disqualification, does not appear to have been acted upon in any of the reported cases. In the one case that the Madras High Court had to decide, the learned Judges came to the conclusion that the lameness which was not congenital was not sufficient to amount to such disqualification, and the learned Judges reserved their opinion on the question whether congenital lameness would be a ground of disqualification : see Venkota Subba Rao v. Purushottam  26 Mad. 133.
21. In the present case, however, we have to deal, with dumbness. With regard to that, the case-law, though not uniform, is sufficiently clear to indicate that that also should be congenital. But, before dealing with the cases, I may point out that the opinions expressed in different modern text-books on Hindu Law are that dumbness must be congenital. For instance, at p. 544 of the Fourth Edition of West and Buhler, the opinion is expressed that the dumbness and insanity must be congenital. That is the opinion recorded by the learned authors of that Digest as given in 1857. Though in the references and in the footnotes there, one may not find any clear authority op this point, it means that the opinion then given must have been based upon a broad and not too literal or grammatical an interpretation of this text of Manu.
22. Then we find the same opinion expressed in Golapchandra Sarkar's book on Hindu Law at p. 545 (5th Edn.).
23. The same opinion is expressed in Mayne's Hindu Law (p. 872, 9th Edn.), and in Mulla's Hindu Law (p. 106, 4th Edn.).
24. I refer to these statements merely as showing how the rule has been so far understood. I do not desire, however, to rest my decision merely on those opinions in spite of the fact that they are entitled to great weight. It seems to me that, apart from these opinions, and apart from the cases, to which I shall presently refer, on a proper reading of a text of this nature, which lays down a rule of disability, and where it is unquestionable that deafness must be congenital, it seems to me that it would be proper to hold that dumbness also, which goes ordinarily with deafness, should be of the same description as deafness, that is, it should be congenital. It would be doing no violence to the words of the text to read it in that way, and whatever may be the correct view as to the other in firmities mentioned in the second half of this verse of Manu, it seems to me that there is a special reason for treating the dumbness on the same footing as deafness with reference to which undoubtedly it is laid down that it should be congenital in order that it may constitute a disqualification.
25. Coming to the decided cases, it may be mentioned that so far there has not been a single decided case in which a person not found to be dumb by birth has been held to be disqualified from inheriting as an heir; and this I say in spite of the judgment of Mr. Justice Kajiji in Bai Pratapgavri v. Mulshanhar A.I.R. 1924 Bom. 353 because in that ease the learned Judge expressly found that the person alleged to be disqualified was dumb by birth.
26. This Court had to consider the point in 1867 in Vallabhram Shivnarayan v. Bai Hariganga  4 B.H.C. A.C. 135. It is necessary to examine this case carefully as it has been read by Kajiji, J., as deciding only the question as to whether the rule of disqualification applied to males or extended to female heirs also. In that case the daughter had sued to enforce her rights during the life-time of her mother who was dumb. When the case came up before the High Court it was very fully argued, and one of the points raised was whether the rule of disqualification applied to female heirs as well as to male heirs, or was expressly limited to male heirs. That point was, no doubt, considered and decided in the sense that it was applicable to all heirs, males or females. But it is not correct, in my opinion, to say that the question whether the dumbness should be congenital in order to create a disqualification was not before the learned Judges or was not considered by them. The case is stated to have been 'most carefully argued.' At two places they refer in the judgment as follows to this point. At p. 137 of the report the arguments of Mr. Nanabhai for the appellant are referred to as including the following point:
But there is another point. If dumbness disqualifies, it is in the same category as blindness, lameness, &c.; and it must be from birth....The District Judge must try whether the dumbness is from birth....
27. Then at p. 139 Gibbs, J., observes as follows:
I must, therefore, decide that if this widow has been dumb from her birth, she is debarred from inheriting....
28. It seems to me that, whether the point was argued, or whether it was conceded at the Bar, the learned Judges decided the point. From the issues sent down it is quite clear that the learned Judges were of opinion that the dumbness must be congenital. This is what they say with regard to issue No. 1 (p. 140):
Has the widow been dumb from birth If this is found in the negative, she is capable of inheritance, and must recover before her daughter; but if it be found in the affirmative, then other issues which are stated thereafter in the judgment were to be considered by the lower Court.
29. Thus, it seems to me that in Vallabhram Shivnarayan v. Bai Hariganga  4 B.H.C. A.C. 135 the learned Judges distinctly held that dumbness must be congenital in order to create a disqualification to inherit.
30. This decision was read in the same sense by Westropp, C.J., and Sargent, J., in Murarji Gokuldas v. Parvatibai  1 Bom. 177.
31. In Bharmappa v. Ujjangauda A.I.R. 1922 Bom. 173 the infirmity of dumbness as a ground of disqualification had to be considered. It was a case of congenital dumbness, and the question that arises now did not arise there. In a recent case on the Original Side, Mr. Justice Kajiji, in Bai Pratapgavri v. Mulskankar A.I.R. 1924 Bom. 353, had occasion to deal with this point, in which, on an examination of the cases the learned Judge came to the conclusion that dumbness need not be congenital. With reference to the case of Vallabhram Shivnarayan v. Bai Hariganga  4 B.H.C. A.C. 135 the learned Judge observed as follows (p. 272):
I must say that having regard to the question that was at issue in the 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.
32. This observation appears to me to be based upon what may be called an incomplete or narrow reading of the judgment. I have already referred to Vallabh-ram's case  4 B.H.C. A.C. 135 to show that the question before the learned Judges was not only whether the text applied to females also, but there was the further question whether the dumbness should be congenital. It may be that in the judgment they did not consider it necessary to say as much as they said with reference to the application of this rule to females. But the issue, which I have quoted above, makes it abundantly clear that they considered it necessary to decide it because they were of opinion that, if it was not congenital, it would not be sufficient to disqualify her as heir. In this case of Bai Pratapgavri v. Mulshankar A.I.R. 1924 Bom. 353 reference is made to the decision in Ckaru Chunder Pal v. Nobo Sunderi Das  18 Cal. 327 and the learned Judge was much influenced in his conclusion by the observations of Mr. Justice Banerjee in that case, Re-ferring to that case, and the observations of Mr. Justice Banerjee, it is clear that the point there was quite different. It was a point which might possibly arise under the Bengal School of the Hindu law, but it could not arise in Bombay, and which did not turn upon the interpretation of the particular verses of Manu and Yajnavalkya. I may refer to the following I assage in the judgment at pp. 332-33 to make this position clear:
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; and if it were necessary to decide that question in this case, I should have felt inclined to answer it in favour of the appellant's contention. But I do not think it necessary to go into that question here, because the real question that we have to decide is not whether this dumb son, Shoshi Bhusan, is himself entitled to inherit, but whether his dumbness disqualifies his mother from inheriting. Upon that question most of the authorities referred to in argument do not throw any light. All that is necessary to entitle the plaintiff, Nobo Sunderi, to succeed in this case is that she should have a son by means of whom she may present oblations at solemn obsequies. That is the only qualification required of her by the Dayabhaga (see Ch. 4, Section 2, para. 9). That provision of the Hindu law, as I understand it, does not requirs any present capacity in the danghter's son to confer spiritual benefit by means of oblations at solemn obsequies. It only requires the existence of the possibility to confer such benefit; and the question is whether such possibility exists in the present case.
33. All the Judges, who dealt with the point that arose there, came to the conclusion that this possibility existed in that case, and, therefore, the mother was entitled to inherit, and was not disqualified in consequence of the dumbness of her son. It is quite true, however, that there is that expression of opinion of Mr. Justice Banerjee which is entitled to weight. But in this Court from the time of the decision in Vallabhram's case  4 B.H.C.A.C. 135, there has not been a single reported case in which dumbness not congenital has been hold to be a sufficient ground to disqualify an heir from inheritance. In Bai Pratapgavri's case A.I.R. 1924 Bom. 353, Kajiji, J., held on the evidence that the plaintiff was dumb congenitally.
34. It may be mentioned that in the Privy Council case of Lala Muddun Gopal Lal v. Khikhinda Kore  18 Cal. 341, one who had been born deaf and dumb was held to be disqualified to inherit. But there, was no question in the case as to whether deafness and dumbness not congenital would be sufficient to disqualify a person from inheriting. I only refer to this case as an instance in which what was accepted as constituting a disqualification was congenital dumbness.
35. I am, therefore, of opinion that, on a fair interpretation of this text, it is reasonable to hold, as was held by this Court in Vallabhram's case  4 B.H.C.A.C. 135, that dumbness should be congenital, in order to be sufficient to disqualify an heir from inheriting under Hindu law.
36. I desire to add a word with reference to the argument which has been urged on behalf of the appellant, that all these rules of disqualification based upon physical infirmities are obsolete, and reliance was placed upon the observations of Mr. Justice Sadasiva Ayyar in Surayya v. Subbamma  43 Mad. 4. It may be mentioned, however, that in Pudiava Nadav v. Pavanasa Nadar A.I.R. 1923 Mad. 215, these observations of the learned Judge were considered by a Full Bench of that Court and they could not see their way to hold that the rules relating to all infirmities must be treated as obsolete. Apart from that, this very point was urged in the case of Bharmappa v. Ujjangauda A.I.R. 1922 Bom. 173. There it was held that there might be certain physical infirmities as to which the rule might be treated as obsolete in these days but it could not be treated as obsolete in its entirety with regard to all infirmities. With regard to dumbness and deafness, it was held that the rule was not obsolete. Under these circumstances, it is not possible to accept the appellant's contention that the rule that congenital deafness and dumbness constitutes a disqualification according to Hindu law to inherit is obsolete.
37. It is also clear to my mind that in order to constitute a disqualification this particular infirmity must be shown to be incurable. This is clear from the text of Yajnavalkya where the word (achikitsya) isused. It is translated as meaning a person afflicted with incurable disease. The deaf and the dumb are brought in under the word 'adi' (and others) used in Yajnavalkya's text and the same characteristic must apply to deafness and dumbness, that is, they should be incurable. It would be in accordance with the rule that where there are texts of two Smriti writers on points as to which one is silent, they must be read as supplementing each other as far as possible (see Vijnaneshvara's Commentary on Verses Nos. 4 and 5 in the Acharadhyaya of the Mitakshara-as translated by Srisachandra Vidyamani-p. 107). It is in that way that the text of Manu has been read as regards the question whether the particular infirmity should be congenital, though there is no word like jati (congenital) used in Yajanavalkya's text, and even though deaf and dumb persons are not mentioned by Yajnavalkya. Having regard to the texts of Yajnavalkya and of Manu on this point it seems to me that dumbness must be incurable also. As I have said, it is not shown in this case by the defendants that it is incurable. But even if it were incurable in fact, as it is not congenital, it is not sufficient to create any disqualification in the plaintiff.
38. The result, therefore, is that this appeal is allowed, the decree of the lower Court is reversed, and there will be a decree for the plaintiff for possession of the property against all the defendants. She should also be allowed mesne profits from Defendants Nos. 1-3 for three years prior to the date of the suit, and from the date of the suit until delivery of possession at the rate of Rs. 114 a year, which is found by the lower Court to be the amount of mesne profits per year.
39. The plaintiff should have her costs throughout from Defendants Nos.l-3.
40. I agree that there is no sufficient evidence that the deafness and dumbness are incurable. The two medical officers who were examined have not given definite evidence on this point, and, having regard to the great advance that medical science has made in the treatment of deaf and dumb people, I think it cannot properly be presumed that the plaintiff cannot be cured, at any rate, to the extent of being able to understand what people say to her and being able to utter sounds to convey what she means. In fact it is common knowledge that nowadays children, who are dumb and deaf, can be taught by lip-reading to understand what people say, and to give verbal answers which can be understood by persons to whom the answers are addressed. I understand that in India considerable advance has been made in this teaching, especially in institutions at Bombay and Ahmedabad; and it seems quite possible that plaintiff's dumbness, if she was properly treated, might be overcome.
41. On the question whether dumbness to disqualify a person for inheritance should be congenital, I cannot speak with the same authority as my learned brother, but I entirely agree with his conclusion. It is clear that Kajiji, J., in Bai Pratapgavri v. Mulshankar A.I.R. 1924 Bom. 353, was inaccurate, when he said in his judgment with regard to the ease of Vallabhram Shivnarayan v. Bai Hariganga  4 B.H.C.A.C. 135, 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.
42. As the learned Judges expressly sent down an issue whether the person in that case was deaf and dumb from birth or not, it clearly was not assumed that she was deaf and dumb by birth. No doubt it can be said that it was assumed in that case that she would only be disqualified, if she was dumb from her birth. The reference to this point at p. 137 of the report, which my learned brother has quoted, may possibly be a statement of the contentions of Mr. Nanabhai for the appellant. But it would appear that the opposing pleader, Mr. Shantaram, in his reply, the substance of which is given, did not controvert that particular point. Whether he did so or not, it is clear from p. 139 that the Court decided that 'if this widow has been dumb from her birth she is debarred from inheriting.' And even supposing that there was no contention on the point, the facts that the two learned pleaders who appeared in that case, one of whom (Mr. Nanabhai Haridas) became a Judge of this Court, had a good knowledge of Hindu law, and that there was no contention on this point would itself point strongly to at any rate, a sentiment or even Usage, which, has considerable weight on a question of this kind, as has been pointed out by the Privy Council in the well-known case of Collector of Madura v. Mottoo Ramalinga  12 M.I.A. 397.
43. Then Sir Michael Westropp in the later case which has already been referred to, Murarji Gokuldas v. Parvatibai  1 Bom. 177, distinctly considered that Vallabhram's case  4 B.H.C.A.C. 135 proved that dumbness to disqualify for inheritance must be congenital, so that the case has already been treated by this Court as an authority on the point. It seems to me that we should follow that view rather than that of Kajiji, J., in Bai Pratapgavri v. Mulshanbar A.I.R. 1924 Bom. 353, adopting a mere inclination of opinion on the part of Banerjee, J., which (as my learned brother has pointed out) was on a different point under the Bengal School of Hindu law. Having regard to the close connexion of dumbness in a case of this kind, with deafness, which has to be congenital, there is obviously logical ground for holding that dumbness, which is really a consequence of deafness, should also be subject to the same rule that it must be congenital to disqualify for inheritance. Possibly a different rule might apply to dumbness which is not the result of deafness, but of some defect of the vocal organs which would prevent a person speaking. But that is not the case before us.
44. No doubt it has been held that madness need not be congenital to disqualify, but there clearly is a different basis for that decision. The text of Manu covers the case of idiots, who by the very meaning of the word must have been born idiots; and accordingly, when he includes madness, it can logically be said that it was not intended that in such cases the disease must be congenital.
45. I, therefore, agree with the conclusions of my learned brother and the decree, which he proposes to pass.