Alfred Henry Lionel Leach, C.J.
1. The real question in this appeal is whether a member of a joint Hindu family who is disqualified from enjoying his share in the family estate by reason of the fact that he is deaf and dumb is entitled to take and enjoy the whole estate when he becomes the sole surviving member of the family.
2. On the 27th September, 1939, one Muniyan, who' had been deaf and dumb from birth, settled upon the plaintiff, the husband of his sister, property which had formed the estate of the joint family of which he was a member. The joint family consisted of himself and his brother Manickam, who died in or about the year 1919. The first and second defendants are the sons of Mari, the divided brother of the father of Muniyan and Manickam. On the death of Manickam, they took possession of the property as his heirs, Muniyan being excluded by reason of his affliction. As the result of the settlement the plaintiff sued in the Court of the District Munsiff of Kallakurichi for a decree for possession. The District Munsiff held that by reason of his disqualification, Muniyan had no power to settle the estate upon the plaintiff. He also held that Muniyan was incapable of understanding the document and forming a rational judgment as to its effect. The plaintiff appealed to the Subordinate Judge of Cuddalore, who held that Muniyan had the right to convey the property to the plaintiff, relying on the decision of this Court, in Amirthammal v. Vallimayil Ammal : AIR1942Mad693 . Without considering whether Muniyan was mentally capable of making the settlement, the Subordinate Judge granted the plaintiff a decree for possession. The first and second defendants then appealed to this Court. Their appeal was heard by Somayya, J., who, before dealing with the points of law involved, called for a finding from the Subordinate Judge on the question of Muniyan's contractual capacity. The Subordinate Judge found that Muniyan fully understood what he was doing and was capable of forming a rational opinion as to the effect of the settlement upon his own interests. The Subordinate Judge's finding on the question of contractual capacity is final.
3. Mr. Justice Somayya did not consider that Amirthammal v. Vallimayil Ammal : AIR1942Mad693 had decided that a disqualified person who happens to be the last surviving coparcener of a joint Hindu family is, by reason of survivorship, entitled to enjoy the family estate and was of the opinion that the provisions of the Hindu Inheritance (Removal of Disabilities) Act, 1928, precluded the plaintiff from recovering the property from the first and second defendants. The question whether the plaintiff could dispossess the defendants after the death of Muniyan did not arise and therefore the learned Judge did not deal with it. In view of the opinion which he had formed of the effect of the Hindu Inheritance (Removal of Disabilities) Act, the learned Judge allowed the appeal, but granted a certificate under Clause 15 of the Letters Patent which has entitled the plaintiff to prefer the present appeal.
4. Section 2 of the Hindu Inheritance (Removal of Disabilities) Act provides that notwithstanding any rule of Hindu Law or custom to the contrary, no person governed by the Hindu Law, other than a person who is and has been from birth a lunatic or idiot, shall be excluded from inheritance or from any right or share in the joint family property by reason only of disease, deformity, or physical or mental defect, but Section 3 states that nothing in the Act shall affect a right which has accrued or a liability which has been incurred before the commencement of the Act. Admittedly if the estate did not devolve upon Muniyan on the death of Manickam, Section 3 of the Act would preclude the plaintiff from recovering the property from the first and second defendants; but it is also accepted that if on Manickam's death, the estate devolved upon Muniyan as the surviving member of the joint family, the settlement in favour of the plaintiff must be given effect to.
5. I find myself unable to share the opinion of my brother Somayya, J., that the decision in Amirthammal v. Vallimayil Ammal : AIR1942Mad693 does not provide the answer to the question now under discussion. That case was decided by a Full Bench of which we were both members. The question there was whether a disqualified person has the status of a coparcener under the Hindu Law notwithstanding that he is excluded from the enjoyment of his share. It was held that he has. He is by birth a coparcener and sons born to him, if unafflicted, are entitled to full rights as members of the family, notwithstanding that he himself is precluded from enjoying his share. The other members of the Court concurred in the judgment which I delivered in that case. Its decision involved a detailed examination of the judgments of this Court in Krishna v. Sami I.L.R. (1885) Mad. 64 Muthuswami Gurukkal v. Meenammal (1919) 38 M.L.J. 291 : I.L.R. 43 Mad.464 and Pudiava Nadar v. Pavanasa Nadar : AIR1923Mad215 .
6. The first of these cases was decided by a Full Bench of five Judges over which Turner, C.J., presided. It was there held that under the Mitakshara law, the sons of a deaf and dumb member of an undivided Hindu family are entitled to a share of the family estate in the lifetime of their father notwithstanding that they were born after the death of their grandfather. The disqualification of the father did not prevent his sons becoming share enjoyers. In Muthuswami Gurukkal v. Meenammal : AIR1942Mad693 Seshagiri Aiyar and Moore, JJ., held that the right of a member of a Hindu joint family to share in ancestral property is not lost, but is only in abeyance by reason of a disqualification and that if the disqualified member becomes the sole survivor, he takes the whole estate by reason of survivorship.
7. The judgments in Pudiava Nadar v. Pavanasa Nadar : AIR1923Mad215 are in conflict with those delivered in Krishna v. Sami I.L.R. (1885) Mad. 64 and Muthuswami Gurukkal v. Meenammal : AIR1942Mad693 . In Pudiava Nadar v. Pavanasa Nadar : AIR1923Mad215 the plaintiff had separated from his father who lived with his other three sons, one of whom (the ninth defendant) was afflicted with congenital blindness. The father conveyed his property to his son-in-law who conveyed it to the second and third defendants. At the time the suit was filed, the father was dead and only two of his sons survived, the plaintiff and the ninth defendant. The defendants contended that the fact that the ninth defendant was alive was a bar to the suit. The Court (Schwabe, C.J., Oldfield and Coutts-Trotter, JJ.), regrettably refused to follow Krishna v. Sami I.L.R. (1885) Mad. 64 and rejected this plea.
8. In Amirthammal v. Vallimayil Ammal : AIR1942Mad693 it was held that Krishna v. Sami I.L.R. (1885) Mad. 64 was the binding authority as it had been decided by a Bench of five Judges. In following Krishna v. Sami I.L.R. (1885) Mad. 64 the Court expressed its full agreement with the principle laid down therein and disagreement with Pudiava Nadar v. Pavanasa Nadar : AIR1923Mad215 as that decision was founded on a false premise, namely, that a disqualified person is not a co-sharer. The rejection of Pudiava Nadar v. Pavanasa Nadar : AIR1923Mad215 in itself indicates the acceptance of the opinion expressed in Muthuswami Gurukkal v. Meenammal (1919) 38 M.L.J. 291 : I.L.R. 43 Mad.464 that on the death of the other members of the family, the disqualified member becomes entitled to the estate by survivorship and it was quoted in Amirthammal v. Vallimayil Ammal : AIR1942Mad693 with approval.
9. Three other High Courts have also held that a disqualified person takes the family estate when he is the last of the coparceners, namely,the Bombay High Court in Vithaldas Govindram v. VadilalChhaganlal1, the Allahabad High Court in Mool Chand v. Chahta Devi2 and the Patna High Court in MusammatDilraj Kuari v. Rikheswar Ram Dube3. The Allahabad case was decided by a Full Bench which expressly-accepted the decision in Muthuswami Gurukkal v. Meenammal 4.
10. If a disqualified person is a member of the coparcenary--and so far as this Court is concerned it is now well settled that he is--it would be unjust to hold that he is disqualified from enjoying the estate when he happens to be the sole surviving member of the family. There is no text which prevents him from so taking and to hold otherwise, would mean that the whole estate would devolve on heirs outside the family, if there were any and if not it would escheat to the Crown. It is one thing to say that an afflicted member shall not enjoy his share when there are other members of the joint family alive and quite another thing to say that he shall have no right in the estate when he happens to be the surviving member of the family. If he is not competent to manage the estate, the Court can appoint a guardian. I respectfully agree with the statement in Mool Chand v. Chahta Devi 2, that when a. disqualified member becomes the sole surviving member of the family he constitutes a fresh stock of descent and the property goes to his heir and not to the heir of the member of the joint family who was the last to die before him.
11. As I hold that Muthuswami Gurukkal v. Meenammal 4 was rightly decided, it follows that in my opinion the decree of the Subordinate Judge should be restored with costs throughout.
Lakshmana Rao, J.
12. I agree.
13. I agree.