Sulaiman, C.J. and Bennet, J.
1. This is a defendant's appeal arising out of a suit for recovery of possession of certain house properties. Originally part of the properties belonged to Diwan Singh who had four sons including Kanhaiya Lal. It is an admitted fact that after the death of Diwan Singh there was a partition among his four sons and Kanhaiya Lal with his branch got a distinct one-fourth share. It is also an admitted fact that there was no formal partition between Kanhaiya Lal and his sons or between his sons inter se. On Kanhaiya Lal's death, there were three sons, Jai Kuar Mal, Sant Lal and Sheo Singh. Of these Jai Kuar Mal died issueless and shortly after him Sant Lal died who left a widow and two daughters who are the present plaintiffs. Sheo Singh survived. The position then is that if Sant Lal was the last male owner, then on his death his property devolved on the present plaintiffs who are his daughters in spite of the fact that Sheo Singh survived him. On the other hand, if Sheo Singh had an interest in the family property and was the last surviving member then on Sheo Singh's death the property would pass to the collaterals and would not devolve on Sant Lal's daughters,' who had predeceased his brother. It is now also an admitted fact that Sheo Singh had been suffering from leprosy of a sanious or virulent type at the time of the death of his father, Kanhaiya Lal. But it has been found that it had not been congenital.
2. The principal question for consideration in this case is whether Sheo Singh acquired any interest in the property of his grandfather, Diwan Singh, or his father, Kanhaiya Lal, and whether he could succeed to the entire estate by survivorship on the death of Sant Lal; or whether on account of his disease he was disqualified from acquiring any interest in this property at all so that on the death of Kanhaiya Lal and his eldest son the property remained vested in Sant Lal alone and Sheo Singh had no share, with the result that on the death of Sant Lal that property devolved on his daughters to the exclusion of Sheo Singh. On this point there has unfortunately been a conflict of opinion in this Court. In the case in Ram Ghulam v. Ram Sahai (1881) A.W.N. 121 a ruling of the Bombay High Court was followed and it was held that if incurable leprosy was contracted before partition, it would exclude the person afflicted with it from the share in the ancestral estate. The case was remanded as there was no clear and definite finding on that point by the Court below. On the other hand, in Tirbeni Sahai v. Muhammad Umar (1905) 28 All. 247 it was held that a member of a joint Hindu family who had acquired by his birth an interest in the joint family property was not divested of that interest by subsequently becoming insane. In Man Singh v. Mt. Gaini A.I.R. 1918 All. 377 it was held that there is no principle of Hindu law under which a person who contracts the disease of leprosy is thereby disqualified from dealing with his own property or from dealing with joint family property so as to bind his sons, provided the alienation is made for legal necessity.
3. The opinion expressed in the other High Courts is contrary to the opinion expressed in the later oases of this Court. See Ananta v. Ramabai (1875) 1 Bom. 554, Ram Sahye Bhukkut v. Lalla Lalji Sahye (1882) 8 Cal. 149, Ram Soonder Roy v. Ram Sahye Bhugut (1882) 8 Cal. 919 and Kayarohana Pathan v. Subbaraya Thevan A.I.R. 1916 Mad. 470. This latter case has been approved of by their Lordships of the Privy Council in Deo Kishen v. Budh Prakash (1883) 5 All. 509 corresponding to AIR 1924 PC 125. But in these last mentioned oases the only question which directly arose was as to whether deformity and unfitness for social intercourse arising from the virulent and disgusting nature of the disease would be the most satisfactory test, and not whether it should exist at the time of the partition. In the Pull Bench case in Deo Kishen v. Budh Prakash (1883) 5 All. 509 it was laid down that when once the estate has vested in an individual, it cannot be divested, by reason of her insanity. But in that case the question had arisen with regard to a widow who had not been born insane, but was insane at the time of her husband's death when the succession opened to her. That case is therefore distinguishable. An entirely new view has been taken in Muthusami Gurukkal v. Meenammal A.I.R. 1920 Mad. 652 where it has been laid down that the right of a member of a Hindu joint family to share in ancestral property which has come into existence at birth is not lost but is only in abeyance by reason of a subsequent disqualification and that it subsists all through although it is incapable of enforcement at the time of partition, if the disqualification then exists; but if on the death of all the other members the disqualified member becomes the sole surviving member of the family, he takes the whole property by survivorship. Section 10 of Ch. 2 of the Mitakshara (Colebrook's Translation) deals with such disqualifications and placita 6 and 7 are relevant. There is no doubt that disqualified persons are debarred of their shares if their disqualification arose before the division of the property and if the defect is removed at a period subsequent to partition, the right to partition takes effect by analogy of a son born after the death of his father. Ch. 8, para. 4 of the Vira Mitrodaya (Golapchandra Sarkar's Translation) contains a dearer rule of law applicable to both partition and succession. Sheo Singh having died in 1912, the case is not governed by Act 12 of 1928.
4. We think that the question is of great importance, particularly as there are various kinds of defects which constitute disqualification. We are therefore of the opinion that the following questions of law should be referred to a Pull Bench for determination : (1) Whether a person, who had not been a leper from birth, but was afflicted with leprosy of a sanious or virulent type at the time of the death of his father, became entitled to an interest in the joint ancestral property along with his brothers or not? (2) Even if he was disqualified from taking a share in the family property in the lifetime of his brothers, whether the property became vested in him if he happened to be the sole surviving brother so that he got the property and became a fresh stock of descent to the exclusion of the daughters of his last predeceased brother?