Walter Salis Schwabe, K.C., C.J.
1. The question referred to the Full Bench is 'Is a Hindu who is congenitally blind thereby excluded from the inheritance, or has the rule become obsolete?'
2. In Surayya v. Subbamma I.L.R. (1919) Mad. 4 Sadasiva Ayyar and Napier, JJ. answered this question by saying that the rule had become obsolete. This case having been tried before that decision was known, the point was not taken at the trial or on first appeal; but the appellant was allowed to raise the point by the Referring Bench. The Court was told in the course of the arguments that it is alleged that the man in question is not, in fact, congenitally blind and it will be for the Referring Bench to consider hereafter whether that matter is one which is now proper to be enquired into. For the purpose of this reference we must assume that he was congenitally blind and treat this case as, in effect, an appeal from Surayya v. Subbamma I.L.R.(1919) Mad. 4 .
3. It is argued that under the Hindu Law, a congenitally blind man never was excluded from inheritance and secondly that, if there was a rule or custom to that effect, it has now become obsolete and is no longer law. It has long been established that in this Presidency the most authoritative statement of, what J may call, the Hindu Common Law is to be found in the Mitakshara, a commentary by Vignaneswara on the institutes of Yagnavalkya published about A.D. 1080. In Chapter II Section 10 the author quotes the text of Yagnavalkya as follows: 'An impotent person or outcaste and his sons, one lame, a mad man, an idiot, a blind man, and person afflicted with an incurable disease, and others, (similarly disqualified) must be maintained, excluding them however, from participation. It is made clear by reference to the whole chapter that the author is here dealing with exclusion from the inheritance. I think the law as stated by him amounts to this: A man born blind does not become on birth entitled to a share in the family property, and, therefore, he gets no share at a subsequent partition; nor, if he is the sole surviving member of that family, does he acquire the property by right of survivorship; he is not, however, excluded altogether from an interest in the property because he is himself entitled to be maintained, and can transmit to his sons his full share in the property. But it is argued first that these directions are merely precepts or advice and not statements of law. It is true that there are precepts, given in the Mitakshara which either by reason of the words on which they are couched or by reason of the nature of the matter dealt with, have been held to be mere moral precepts, but I can find no such reason for holding that the statement of the exclusion of a blind man from the inheritance is anything but a statement of a rule of law. It is further argued that this statement of the law in the Mitakshara is a statement of the law as it had been in the past and not as it then was; and for this, reliance is plased on the writings of Visvarupa which were discovered in Malabar some few years ago. He is stated to have lived shortly before the author of the Mitakshara. He gives the same text from Yagnavalkya and in commenting on the text, without any suggestion that it is other than law, a passage occurs which has been translated as follows: 'The blind and the rest, who are not outcastes, however, have a right to the grandfather's estate. Such is the custom.' We have been referred to the Sanskrit and I have no doubt that the words which have been translated as 'have a right to the grandfather's estate I would be more properly translated as 'have an interest in the ancestral property' and refer to what follows immediately, namely, the right to maintenance and the right to transmit referred to above. In my judgment when properly understood, there is no difference at all between the rules in question as stated in the Mitakshara and as published by Visvarupa, assuming that the published version is genuine. The next question is whether, assuming a blind man's exclusion to have been the law at the date of the Mitakshara it has since become obsolete. This, in my judgment, is a question of fact. A law does not cease to be operative because it is out of keeping with the times. A law does not become obsolete because it is an anachronism or because it is antiquated or because the reason why it originally became the law would be no reason for the introduction of such a law at the present time. To hold the contrary in my judgment, would be an entire misunderstanding of the meaning of the legal maxim cessat ratio cessat lex which is relied upon in support of the contrary contention. If authority were required for this proposition, it is to be found clearly stated by their Lordships of the Privy Council in Rao Kishore Singh v. Mussamat Gahenabai (1919) 37 M.L.J. 562 in the following words: 'Their Lordships therefore are of opinion that the principle embodied in the expression cessat ratio cessat lex does not apply where the custom outlives the condition of things which gave it birth.' In Surayya v. Subbamma I.L.R.(1919) Mad. 4 Sadasiva Aiyar, J. dealing with the matter now under consideration says, 'I need not say that a rule becomes obsolete when the reason of the rule disappears through change of circumstances and environments in the society which was governed by that rule', and Napier, J. at P. 31 agreeing with that judgment says that owing to improved methods of education there is no reason why such a disqualification should still continue and that it was open to the court to enunciate this rule by declaring the law to be obsolete. In my view, this involves a fundamental error in considering the question and vitiates the whole of the judgments in that case. In considering whether the custom has become obsolete in the sense of its having ceased to exist, the fact that it is an anachronism may be a proper matter to be taken into consideration, if there were evidence both ways, in weighing that evidence, but otherwise it is of no importance. In this case, in my judgment, the evidence is all in favour of the custom having continued. There is no oral evidence before the Court and no statement of any text writer or any judgment to which our attention has been called that this custom has become obsolete in the sense of its having been discontinued. The only semblance of evidence that the rule has become obsolete is to be found in Steele's 'Law and customs of Hindoo castes,' published in 1826, at page 224 where he states that as a result of enquiry among about 100 castes above Poona, it was the practice in 72 of them that 'blind persons' may take their share if married and if they have a family. Assuming this to be evidence, it is probably only an attempt to state the law as to the transmissibility of a share through the blind man. But even if it be as stated that in 72 castes in that district, the law had been modified by custom, it is of no value as establishing a custom to admit the blind man to a share in this Presidency.
4. Reliance was placed on a passage in Sarasvati Vilasa, a digest published by a king about A.D. 1510 which has been recognised by this Court as of authority. The passage relied on occurs in Section 149 and has been translated as 'those who are born blind, and those who are born deaf, the pair thus mentioned, though a share certainly belongs to them, are to be nourished and cherished, notwithstanding their being endowed with a share, because they are marriageable. The translation to this effect was adopted by the Full Bench of this Court in 1885, in Krishna v. Sami I.L.R.(1885) Mad. 64 . With great submission I venture to doubt if that translation is correct and whether the word translated as 'share' would not be more correctly a translated as 'interest'. But whether that is so or not, a careful examination of Sections 149 to 167 shows that the author is quoting as law the passage from Yagnavalkya and passages from some other writers to the like effect excluding the born blind from the inheritance without suggesting that the law is otherwise or that it is obsolete. If the proper translation of the passage is to the effect that the born blind take a share, I think it is to be explained, as it was in the case referred to above in the Judgment of Sir Charles Turner, C.J., as meaning 'that there are classes who though they may be unable to be relieved of their disqualification, are capable of transmitting heritable blood. Their right to share in the family wealth is latent or may come into existence at a future date as it does in the case of the afterborn son. When it comes into existence either in the person of the formerly disqualified heir or of his son, it is to be recognized. If capable of transmitting heritable blood, they are share takers though not at the time share enjoyers'. In fact in the passage the Sarasvati Vilasa is using the expression 'take a share' to explain that though disqualified, such persons have a latent right which will become effective on the disqualification being removed, and can be transmitted. In my judgment, there is nothing in this to show that this law was then regarded as obsolete.
5. The evidence on the other side is overwhelming. Taking it in the order of date, one finds this law or custom stated as existing in Madana Parijata about the end of twelfth century, in Vivada Ratnakara about A.D. 1350, Dayabaga about A.D. 1400, Vivada Chintamani about A.D. 1450, Daya Tatva about A.D. 1500, Mayukha about A. D. 1600, Dattaka Chandrika about A. D. 1600, Viramitrodaya about A.D. 1625 and Dayakrama Sangraha about A.D. 1700. These are all texts of recognized authority and they all give the rule without any suggestion that it is no longer law.
6. Coming to the more modern writers, Sir W. Macnaghten writing in 1829, and Sir Thomas Strange, Chief Justice of Madras, writing in 1830, state that the blind are excluded. The latter's son, a Judge of the Sudder Court writing in 1856 says the same. Mr. Mayne in his well known book of Hindu Law states it to be the law.
7. In 1862 in Tirumamagal Ammal v. Ramasami Ayyangar (1863) 1 M.H.C.R. 214 a case of idiocy, Strange and Holloway, JJ. quote this part of the Mitakshara as being the law current in Madras. In 1864, Kaiidas Das v. Krishanchandra Das (1864) 2 B.L.R. 103 came before a Bench of five Judges of Calcutta presided over by Sir Barnes Peacock, C.J. In that case a man who was born blind was in 1832 in fact excluded from the inheritance to his father. He married and had a son in 1858. The passages in the Mitakshara and in Dayabaga which are to the same effect were fully discussed and the whole argument and judgment proceeded on the basis that a person born blind was himself excluded. No one then present had apparently any idea that the rule was obsolete. In 1876 in Murarji Gokuldas v. Parvathi Bai I.L.R.(1876) 1 Bom. 177. Westropp, C.J., with Sarjent, J. agreeing, fully discussed the text of Yajnavalkya and the Mitakshara commentaries on it and the texts of the other Rishis on the subject and holds that the rule is confined to the congenitally blind and does not extend to those who become blind. It was not suggested that the rule had become obsolete. In 1885, in Krishna v. Sami I.L.R. (1885) Mad. 64 quoted above, there was no suggestion that the rule had become obsolete. Finally in 1917, the Privy Council in Gunjeshwara Kunwar v. Durga Prasad 34 M.L.J. 1 states the rule of exclusion of the blind as an existing rule of law but confines the application to the congenitally blind.
8. It is impossible to believe that a custom to disregard the established rule, which it would be necessary to prove in order to show that it had become obsolete, existed without any of these Judges, or practitioners in these cases being aware of the fact. There is in my judgment ample evidence of the rule, and no evidence of such a custom to disregard it as would be necessary to make the rule obsolete as a rule of law. It follows that the answer to the question must be that a Hindu who is congenitally blind is excluded from the inheritance and that the rule has not become obsolete.
9. I agree and, having had, the advantage of reading the judgment which Coutts Trotter, J., is about to deliver, desire further to associate myself with his observations on the commentary of Viswarupa and the principle underlying them.
Coutts Trotter, J.
10. The short point raised by this case is whether or not it is a rule of Hindu Law that a congenitally blind member of an undivided Hindu family is to be excluded from inheritance or whether if such a rule existed, it has become obsolete. Sadasiva Ayyar, J. admits that such a rule once existed, but has held it to be obsolete. Krshnan, J. holds it to be an existing and positive rule of law.
11. It must not be forgotten that the Hindu Law is the result of many ingredients. In the first place we have the Smritis or records of the pronouncements of Rishis, (Saints) among whom stands paramount Manu. We do not possess the original text of Manu and the version we have is placed by modern Scholars as dating from about 200 B.C. but there is no doubt that a treatise known as the laws of Manu in different recensions existed from many centuries before the date of our version. Next in authority to Manu of the Smrities is Yagnavalkya and the commentary on his work known as Mitakshara written by Vignaneswara stands as the governing authority for this part of India and it is an accepted principle that the Mitkashara is final where it is unambiguous, and that recourse is to be had to the Smritis only where the Mitakshara is silent or obscure. The third element is that of custom, the importance of which was emphasised by Mr. Mayne when he entitled his book ' Hindu Law and usage.' Since the British occupation of India another element has been added, that of judicial decisions of the Indian Courts and of the Privy Council on appeals from them. The rulings of the Privy Council are final and it is only in cases not covered by such rulings that recourse need be had to other sources.
12. The position with regard to the present question is that there is no express ruling of a Court of law which says, in terms, that a congenitally blind man is excluded from inheritance. There are cases which definitely decide that blindness, which is not congenital but is traumatic or supervenes on disease does not exclude. There are many cases which assumes without expressly deciding, that congenital blindness does exclude. 'That position is now challenged and it devolves upon us to say how the law on the subject stands in India at this clay.
13. That which we call the Hindu Law. is composed of many incongruous elements I am speaking, now, of its substance, and pot of the sources, in which it is to be sought. It primarily lays down rules of law, which must be treated as of practical applicability to the India of to-day. Such rules there are in abundance, but they are interspersed with mandatory precepts which have been treated by commentators and Judges as being merely of religious or moral force but which cannot govern the rights and duties of a member of a Hindu family with the force of a positive rule of law, I may refer in this connection to the words of the Judicial Committee in Rao Balwant Singh v. Rani Kishori (1897) L.R. 25 IndAp 54 . 'All these old text books and commentaries are apt to mingle religious and moral considerations, not being positive laws, with rules intended for positive laws. In his preface to his valuable work on Hindu Law Sir W. Macnaghten says: 'It by no means follows that because an act has been prohibited it should therefore be considered as illegal. The distinction between the Vinculum juris and the Vinculum pudoris is not always discernible'. (Hindu Law, Principles and Precedents, p. vi of the preliminary remarks). He illustrates this position by the example of the very subject of the present discussion. 'It is, as their Lordships think, the most remarkable inference that the passage in Section 1 belongs to the former class of precepts, and those of Sections 4 and 5 to the latter.' It was argued in this case that the rule which excludes a blind man from inheritance was something other than a rule of positive law. It seems to me that that position is wholly untenable and that such a principle of exclusion can only belong to the domain of positive law, and not to that of either religion or morality. If it is not a rule of law, it must be meaningless. The only colour to the argument is derived from the fact that both Manu and the Mitakshara, to which for the moment I shall confine myself, include within the ambit of their prohibition, persons with disqualifications winch are obviously based on moral grounds and on grounds which it would be impossible for a Court of Law to pronounce upon. The text of Manu is 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' Chap. IX, Section 201, The relevant section of the Mitakshara is Section X of Chap II. There the writer is commenting not directly on the text of Manu as we have it but on the text of Yagnavalkya in Section 149 which runs as follows:
An impotent person or outcaste and his issue, one lame, 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 from participation.
14. Placitum 3 of Section 10 explains this as follows:
Under the term 'others' are comprehended one who has entered into another order (i.e. has become an ascetic) an enemy to his father, a sinner in an inferior degree and a person deaf, dumb or wanting an organ. Thus Vasishta says: 'They who have entered into another order are debarred from shares'. Narada also declares: 'An enemy to his father, an outcaste, an impotent person, and one who is addicted to vice, take no share of the inheritance even though they be legitimate; much less, if they be sons of the wife by an appointed kinsman. Manu likewise ordains, 'Impotent persons and outcastes are excluded from a share of the heritage and so are persons born blind and deaf, as well as madman, idiots, the dumb and those who have lost a sense (or a limb).' This section incorporates quotations from Narada and Vasishta and produces categories of persons, who, in a court of law now-a-days would not be held disqualified from inheritance. They are brought under the text of Yagnavalkya who adds the Sanskrit and word 'Adya' translated by Colebrooke as 'as well as others'; its literal meaning being 'and the like' or practically 'etcetera'. Under cover of the latitude afforded by this expression, placitum 3 brings in such intangible persons as 'an enemy to his father 'and' one who is addicted to vice' - disqualifications so vague, it is clear, that no court of law could now assert their validity. I do not think it right to say that these grounds of exclusion are obsolete or that they were originally intended to be moral rather than legal obligations but rather that they are of so nebulous a character that they could never have been enforcible at any time when the enunciation of the rights of inheritance passed from the hands of family mediators or village panchayatdars to anything which can be dignified by the name of 'Court of Law'.
15. I do not think that any useful purpose would be served by enquiring into the meaning of such terms as 'Nirindriya' or 'Pangu'. They do not seem to me to assist the present discussion and I think it is probable that legislation will abolish the exclusion from inheritance based on these terms before the Courts are called upon to determine their exact meaning. Similarly I think it unnecessary to discuss whether Yagnavalkya meant anything more by using the word, 'Andha' than what Manu meant by 'Jathyandha'. 'Jati' comes from the same root as the Greek Gignomai Genos, etc., and Latin 'Genus'. It is, I think, clear that both Manu and the Mitakshara explicitly lay clown the rule of law that at least a 'Jathyandha' is excluded from inheritance and that the only way to escape from this is to do what Sadasiva Ayyar, J. has done and say boldly, 'It is not a subsisting rule of law. It has become1 obsolete and abrogated.'
16. In any system of law other than the Hindu Law, it would be almost a contradiction in terms to predicate of any proposition of law that it is obsolete. In the Hindu Law it is a possible state of things and it has been admitted to exist with regard to many maxims which cannot be treated as if merely moral or religious obligation, I need only instance the kinds of marriages and the classes of sons enumerated in the ancient writings and also the various rules for marriages between persons of different castes. There is a consensus of opinion that there are only two forms of marriages and only two classes of sons now existing and inter-marriages between persons of different castes have in practice long ceased to exist. It is not now possible to trace the steps by which this state of things came about, but it may be said generally, that, in the days when the Saddar Court had recourse to the opinions of the Pandits, the latter felt themselves quite free to say with regard to any rule of law that, in practice, it was regarded as obsolete and the Courts felt themselves equally free to act on such opinions. There is good evidence to show that, in the early days, the Pandits responded to some extent to the advance of popular sentiment and consciousness and stigmatised as obsolete, rules and practices, which, though enshrined in the early writings, did not accord with the sentiments of the people, The time has now gone by when this process was possible and if there is anything dignified by the name 'Rule of Law' enshrined in the Mitakshara, it can only be abrogated by positive evidence of custom to disregard it. It is not pretended that there is any such evidence of custom with regard to the exclusion of the congenially blind and no such evidence was attempted to be produced in this case. No doubt, Mitakshara Chap. II, Section 10, placitum 7 provides for the removal of the disqualification; on the removal by medicaments or other means of physical disability, and it is doubtless true that modern surgery can restore eyesight to many, who in the days of Mitakshara would have been blind for life, Sadasiva Ayyar, J. does not so much have regard to this consideration, as to the view that the texts are based on a primitive idea that blindness was either a Visitation of God for some sin in a past existence or was an indication of mental incapacity to deal with practical affairs. Justly regarding these ideas as out of consonance with modern kinship-feeling he deduces the conclusion that the rule is therefore to be considered as ipso facto abrogated. To my mind before allowing a mandate such as I conceive this to be to be disregarded, it must either be proved, by evidence to be actually disregarded in practice at the present time - and as I have already said there is no such evidence in this case - or it must be shown by an examination of the smritis and commentaries to have been obsolete at the time they were written and that the authors thereof merely repeated parrot like the words of Manu and the Mitakshara as a maxim dignified by antiquity but not corresponding to the practice obtaining at the time either of the Mitakshara or of their own compilations. If it could be shown that commentators earlier than the Mitakshara had used language meaning or implying that the rule in this respect was obsolete, that might be a legitimate ground for the conclusion that the Mitakshara was merely repeating the words of Manu without inquiring whether the rule survived in force when the Mitakshara was written. If a commentator later than the Mitakshara used similar language, that might lead to a legitimate inference that, though in force at the date of the Mitakshara, the rule had subsequently become obsolete. It is argued that there is one of each suggested class of authorities, Viswarupa of the first and Saraswati Vilas of the second. For practical purposes we may take Yagnavalkya as dating approximately 350 A.D., the Mitakshara as about 1000 A.D., Viswarupa as about 800 A.D., and the Saraswati Vilas as about 1500 A.D., There are some authorities who think that the Saraswati Vilas was of an earlier date, but in any event it is substantially later than the Mitakshara.
17. I shall deal first with Viswarupa. The existing text is inscribed on a cadjan found at Calicut in the late seventies and was translated by Mr. S. Sitaram Sasfri I am totally unable to ascertain that any competent scholar has scrutinised its claims to be regarded as what it purports to be either from the point of view of paleographical, linguistic or historical standards. This is not a critical country and the moment it was produced, it was held at once to be what it purported to be and has apparently passed as such without question since. That such discoveries very often fail to stand the slightest critical test will be seen by any one who has the curiosity to peruse page XII of Mr. Burnell's preface to the Vyvahara Nimaya where he exposes the imposture of a treatise which had been readily accepted as a genuine record of the customs of South Kanara passing under the name of Aliyasantanada Kattu Kattale. I do not profess to have any beyond general grounds for questioning the authenticity of this single text of Viswarupa. I content myself with saying that I decline to act upon it until its pretentions have been scrutinised by some competent critic of Sanscrit texts.
18. It runs as follows page 15. 'The blind and the rest, who are not outcaste, however, have a right to the grandfather's estate. Such is the custom.'
19. It is apparent that the author treats the mandate which he quotes as a mere moral maxim, opposed to the rule of law which he considers to be established by his text and if the expression 'grandfather's estate' means no more than 'ancestral estate', the text of Visvarupa need mean no more than that of the Mitakshara, and the right may be a mere right to maintenance or at most a capacity to transmit heritable blood.
20. With regard to Saraswati Vilas, the first observation to be made is that made by the learned Chief Justice in the course of the argument that, if the author wished to say that the text of the Mitakshara on this point was obsolete, he could perfectly well have said so in terms. Further in any event the true explanation of the passage in the Saraswati Vilas is to my mind undoubtedly that given by Turner, C.J. in Krishna v. Sami I.L.R. (1885) Mad. 64 where he points out that the distinction which is being drawn is not that between those who are capable and those who are incapable of inheriting, but between those who are share lakers in the sense that they are persons capable of transmitting heritable blood though they may not themselves be able to enjoy the heritage owing to their disqualifications, and share-enjoyers who are not merely capable of transmitting heritable blood but also of enjoying their shares themselves in their life-time.
21. As against these two very doubtful texts there is a mass of authority which is all the other way, which recognises to the full the exclusion of the blind in the sense of the congenitally blind and accepts the statement of the law contained in the Mitakshara. I will enumerate these texts (most of which are to be found in Setlur's collection) with their approximate dates:
Madana Parijata ... ... 1100 A.D.
Smriti Chandrika ... ... 13th Century
Vivada Ratnakara... ... 1300 A.D.
Dayavibhaga of Madhava ... ... 1400 '
Dayabhaga of Jimutavahana ... ... 1400 '
Vivada Chintamani ... ... 1450 '
Daya Tattva ... ... ... 1500 '
Viramitrodaya ... ... ... 1200 '
Dayakrama Sangraha ... ... 1750 '
and Jagannadha's Digest for what it is worth. Writers of modern text-books on Hindu Law also treat the rule as subsisting, Sir Thomas Strange in 1830, T.L. Strange in 1856, Mayne in 1878, Sarvadhikari in 1880 and Trevelyan in 1890. It is quite true that no express decision exists to the effect that a man blind from birth cannot inherit but there are several decisions that assume it, culminating in the pronouncement of the Privy Council in Gunjeshwar Kunwar v. Durga Prasad 37 M.L.J. 1 (P.C.) .
22. The only other matter which I need deal with is the argument that the rule of exclusion in the Mitakshara applies only to those who take by succession and not to those who take by survivorship. The answer to this line that Chap II, Section 1 placitum begins with the statement that the rule of exclusion propounds an exception to dayagrahana (taking of daya) by the sons, widows and other heirs and the reunited members and this by necessary implication refers one back to the definition of daya in the beginning of Chap. I. Daya apparently means property considered in the light of something which in the natural course of events will pass from one person to another and includes both Apraiibandha day a and Sapratibandha daya (unobstructed heritage and obstructed heritage) the former passing by survivorship to the sons, etc., and the latter passing by succession to widows and other heirs. This is the reference to Vibhaga or partition in placita 6 and 7 and placitum 8 also shows that the word dayagrahaua includes within its scope both property which passes by survivorship and that which passes by succession.
23. For these reasons I am of opinion that it must be regarded as an unabrogated rule of Hindu Law that a congenitally blind person is excluded from succession and that it cannot be described as obsolete in any other sense than that of being repugnant to more modern and more enlightened ideas than those which prevailed at the time of the smritis and the commentators. It can of course be repealed by the Legislature and we are informed that a Bill to that effect is now before the Legislative Assembly, the author of which was once a Judge of this Court. But until that step is taken and the proposal passes, into law, I feel constrained to say that the Courts of this country have no option but to enforce the rule with whatever reluctance and with whatever consciousness of its repugnance to the present sentiments of the Hindu people.