1. This appeal has been filed by defendant No. 1 against the judgment dated 20-9-1950 of Sri A. Misra, Subordinate Judge of Keon-jhar confirming the decision of the trial Court. The plaintiff's suit is one for declaration of his title on the basis that he is the adopted son of Gopi and for confirmation of possession or in the alternative for recovery of possession.
One Bauri Nath had four sons, Ainthu, Chaitan, Gopi ana Fakir. After the death of Bauri, Ainthu separated from the other three brothers and enjoyed his four annas share separately. Thereafter, Fakir (defendant No. 1) separated and possessed his four annas interest separately since 1335. Chaitan and Gopi remained joint. Chaitan died leaving his two daughters Naba and Lata, Natabar first married Naba and after the death of Naba he also married Lata. The plaintiff is the natural born son of Natabar and Lata. According to the plaintiff, he was adopted by Gopi in the year 1945. Defendants 2 and 3 are the sons of Ainthu (deceased). Chaitan died in 1354 and Gopi died only a year after. The defendants having got their names mutated in respect of the disputed properties threatened to dispossess the plaintiff. So the present suit has been brought.
2. The defence is that in fact the plaintiff was never adopted by Gopi who died issueless andunmarried and Chaitan died leaving no male-issue nor any widow. As all the four brothers, that is, the sons of Bauri, were joint, the interests of Chaitan and Gopi have passed unto defendants 1, 2 and 3 by way, of survivorship.
3. The two questions that require determination in the present case are whether the plaintiff was duly adopted by Gopi, and, secondly, if really Ainthu and Fair separated, and Chaitan and Gopi remained joint.
4. On the question of adoption, on a thorough examination of oral and documentary evidence adduced on behalf of both parties and taking into consideration a few circumstances the learned lower appellate Court has held, in confirming the finding of the trial Court, that (His Lordship after referring to the evidence stated:) The factum of adoption therefore having been concurrently found to be true by the Courts below on an elaborate discussion of both oral and documentary evidence, there is no point of law on which the findings can be challenged.
5. On the second question, as to whether Ainthu and Fakir separated leaving Chaitan andGopi to continue their joint family, both the Courts below have concurrently found in favour of the plaintiff's allegation. All the witnesses examined on behalf of the plaintiff have deposed in support of the aforesaid allegation of the plaintiff and the Courts below have accepted their evidence in preference to the oral evidenceadduced on behalf of the defendants. The Courts below have also relied upon Exts. 4, 4(a) and 7 showing that Chaitan was having independent transactions in support of their finding. Ext. 5 is a rent-receipt showing that Natabar had paid rent for the lands which were in possession of Chaitan and Gopi.
The Courts below have particularly relied upon another piece of document (Ext. 10) as being very material. This is a certified copy of deposition of Gopi in the previous mutation case filed by Lata where these defendants and Gopi were parties. He had stated there that they were separate for the last 20 years and that he himself and Chaitan were Joint and since the death of Chaitan the properties belonging to himself and Chaitan were in possession of their son-in-law Natabar.
6. Mr. Rao, appearing on behalf of the defendant-appellants, contends that the findings regarding separation has been vitiated in law as being based upon an inadmissible piece of document (Ext. 10) which has been particularly characterised by the lower appellate Court as very material. Mr. Rao's contention is that the conditions of the provisions of Section 32, Evidence Act have not been satisfied, and, as such, the document is not admissible even though Gopi is dead.
But in our view, the document is admissible under the provisions of Section 33 of the Act as ib is the deposition of a witness in a previous case where all the defendants were also parties. The previous proceeding was started at the instance of Lata and Gopi who was representing the interest of the present plaintiff was one of the opposite parties. The present defendants 1, 2 and 3 were also arrayed as opposite parties.
Gopi having died, the other conditions under the section having been fulfilled, the document cannot be taken to be inadmissible simply because Gopi and the present defendants were not arrayed as parties opposed to each other. In our opinion, the conditions of Section 33 will be deemed to have been fulfilled when all the present parties were also parties in the previous case and further the self-same question of jointness and separation was required to be determined in the previous case where the deposition was taken and the witness was also cross-examined. In our view, therefore, the finding on the point of separation of the Courts below is correct.
7. Mr. Rao, however, has taken up a point of law on the question of adoption that as Gopi was blind at the time, the adoption was invalid. Indeed, it was one of the allegations made by the defendants that Gopi was born blind which was controverted by the plaintiff's side to the effect that in fact Gopi became blind on account of smallpox after his 16th year of age. The controversy has been settled at rest by the finding of the Courts below that Gopi was not born blind but became blind subsequently when he was of tender age.
Mr. Rao does not challenge this finding but contends that even a subsequent disqualification of blindness will disentitle Gopi to take any boy in adoption. The question, therefore, that arises for determination is whether a man afflicted with blindness subsequent to his birth can adopt. That again depends upon the question whether blindness, even though not congenital, is a disqualification for inheritance.
Before referring to the three important decisions on the subject, we should place a few texts on the question. Manu, the Chief of the Rishis, with very high authority, in Chap. 9, pl. 201, of Sir W. Jone's Translation by Haughton says :
'Eunuchs, and outcastes, persons born blind or deaf, madmen, idiots, the dumb, and such ashave lost the use of a limb, are excluded froma share of the heritage.'
Jagannath, as translated by celebrated Colebrooke,gives the following texts of Yajnyavalkya, another of the Rishis of great authority:'An outcaste and his son an eunuch, one lame,a madman an idiot, one born blind, and hewho is afflicted by an incurable disease, mustbe maintained without any allotment of shares.'Vachaspati Misra, in the Vivad Chintamani, astranslated by Prosonno Coomar Tagore, gives thetest exactly in the same language. It is significant to mark that in these texts 'blind' is alwaysqualified by the term 'born'. In Chapter 2, Sloka10, pi. 3, Vignyaneshvara quotes without a wordof disapprobation or dissent the text of Manu already mentioned. So also Nilakantha in Mayukha,Chapter 4, Sloka 11, reproduces the text of Manuwithout any contradiction or qualification so faras blindness is concerned.
8. The matter came for the first time before their Lordships of the Privy Council in the case of -- 'Mt. Gunjeshwar Kunwar v. Durgaprashad Singh', AIR 1917 PC 146 (A). The question that came directly before their Lordships was :
'Is a man who is a member of a joint Hindu famiiy, which is governed by the law of Mitakshara, and who becomes permanently blind after he is born, excluded by Hindu law from sharing in the family property by reason of a permanent and incurable blindness which was not congenital?'
Their Lordships quoted with approval a passage from Rajkumar Sarvadhikari, in his Hindu Law of Inheritance, at p. 956, which runs as follows : 'Blindness, to cause exclusion from inheritance, must be congenital. Mere loss of sight which has supervened after birth is not a ground of disqualification. Incurable blindness, if not congenital, is not such an affliction as, under the Hindu Law, excludes a person from inheritance.' After the quotation, their Lordships observed : 'The above is, their Lordships hold, the true rule.' In our opinion, this decision of their Lordships has settled the matter at rest. Before this case of the Privy Council, there were two cases of Indian High Courts, the decisions of which were referred to and approved by their Lordships. The first is -- 'Mohesh Chunder v. Chunder Mohun Roy', 14 Beng LR 273 (B), of the Calcutta High Court, and the second is -- 'Murarji v. Parvatibai', 1 Bom 177 (C). The leading judgment on the question of law in the Bombay case of Westropp, C. J. is elaborate, thorough and very learned discussion of all the texts on the subject. Their Lordships of the Privy Council without repeating the elaborate discussion of Westropp, C. J. have simply agreed with the view.
9. Mr. Rao, however, has relied upon a decision of the Madras High Court reported in --'Muthusami v. Meenammal', AIR, 1920 Mad 652(2) (D), in submitting his proposition that the right of a member of a Hindu joint family to share in ancestral property comes into existence at birth, and is not lost but only in abeyance by reason of a disqualification and it subsists all through, although it is incapable of enforcement at the time of partition, if the disqualification then exists. This was a case of insanity which was not congenital.
Mr. Rao contends that even if a disqualification comes at a subsequent stage, the person is time that disqualification exists. In our opinion, to be deemed as a disqualified heir during the this case has absolutely no bearing upon the question before us, because it was a case of insanity which was found after a thorough discussion in the judgment of Seshagiri Ayyar, J. that it need not be congenital to serve as a ground of disqualification for inheritance under Hindu Law.
Furthermore, their Lordships also propound the proposition in their decision that if on the death of all other members the disqualified member becomes the sole surviving member of the family, he takes the whole property by survivorship; thus finding that such a disqualification does not disentitle the disqualified man to take by way of survivorship. As in the present case Gopi will be getting the properties by way of survivorship after the death of Chaitan, being the sole survivor between the two brothers who, as we have found, remained joint, and further that the adoption took place after the death of Chaitan when the entire property had vested in Gopi as the sole survivor.
10. Mr. Rao has further relied upon a decision of the Patna High Court, reported in -- 'Mst. Dilraj Kuar v. Rikheswar Ram', AIR 1934 Pat 373 (E). There also it was a case of supervening insanity and their Lordships laid down the proposition that where therefore the disqualification supervenes later and the disqualified person is the sole survivor, he takes the whole estate by survivorship. Our remarks in respect of the Madras decision are equally applicable to this Patna decision. We will make it clear that our above discussions apply to the position of law as it was existing prior to the coming into force of the Hindu Inheritance (Removal of Disabilities) Act as the case is coming from Keonjhar area where the Act was not in force.
11. In conclusion, the appeal fails and is dismissed with costs.
12. I agree.