(1). This second appeal is directed against the decree and judgment of the learned Subordinate Judge, Erode, in A. S. No. 9 of 1956, confirming the decree and judgment of the learned District Munsif, Erode, in O. S. No. 586 of 1950.
(2) In Servarayapalem village, Erode taluk, Coimbatore Dt. there is one Oomai Malaya Goundan. He, as his name itself shows, is a deaf mute. He is also found to be lame, and is described as an idiot. It has been found by the learned District Munsif that he was not in a position to form a rational judgment and capable of safeguarding his own interest. Therefore after an elaborate enquiry in I. A. No. 1685 of 1952, the learned District Munsif of Erode came to the conclusion that Oomai Malaya Goundan was not in a position to understand his own interest or act independently and therefore appointed a guardian-ad-litem. This was the subject matter of a revision petition to this court and I upheld the order of the District Munsif of Erode. That decision is reported in In re Periasami Goundan, : AIR1954Mad810 . In other words, this Oomai Malaya Goundan has been found to be a person of unsound mind and has got to be represented by a guardian-ad-litem.
(3) Oomai Malaya Goundan's mother is Angammal and his wife is Najakkal. It is stated that he has also a daughter by that wife. In these circumstances, these three persons purport to have executed a sale deed in favour of the plaintiff under Ex. A 4 on 2-9-1930. Earlier they had executed a usufructuary mortgage in favour of the first defendant under Ex. A. 3 dated 20-6-1930. The purchaser has been undertaking to redeem this usufructuary mortgage.
(4) In these circumstances, Karuppa Goundan, the plaintiff, who has taken an assignment of the sale deed from his father-in-law, the vendee of these three persons, has filed this suit for redemption of the usufructuary mortgage.
(5) The usufructuary mortgagee put forward the contention that this Karuppa Goundan has no title to redeem because the sale transaction is void, inasmuch as the wife and the mother cannot act as guardians of this person of unsound mind to alienate the property, and much more, to Oomai Malaya Goundan who is incapable of contracting cannot pass a good title to the father-in-law of the plaintiff.
(6) It was the contention of the learned advocate Mr. Gopalaswami Ayyangar that the mother and the wife constitute de facto guardians of this man and that this alienation was for necessity and therefore it is binding on the first defendant. In support of this contention he relied upon my decision in Palani Goundan v. Vanjikkal, 69 Mad LW 276: AIR 1956 Mad 476 following the Federal Court's decision in Sriramulu v. Pundarikakshayya and other subsequent decisions following that case.
(7) On the other hand, the learned advocate for the respondents Mr. Natesan pointed out that once we come to the conclusion that this deaf mute Oomai Malaya Goundan is an idiot and his property cannot be alienated even for necessity by the de facto guardians, he urges that, the proper procedure was for the mother or wife or both to get themselves appointed as guardians by such court on a proper application in that behalf and take the permission of the court to alienate the property.
(8) There can be no doubt that the position taken by Mr. Natesan is fully supported by authority. In Kanhayya Lal v. Harising, it has been held that a de facto manager of an estate of an adult Hindu who is incapable of contracting because of unsoundness of mind cannot alienate his property even in case of necessity.
(9) In regard to the unsoundness of mind the following information can be gathered from Ballentine's Law Dictionary. Common law regarded a man who was born deaf, dumb and blind as being in the same state as an idiot because being dumb and incapable of understanding he was supposed to be lacking in all those senses which furnish the human mind with ideas. Idiot has been defined to be a person who from his nativity by reason of perpetual infirmity is non compos mentis; that is, entirely destitute or bereft of memory and understanding. This will take in the term 'lunacy' also which is that condition or habit of mind in which it is directed by the will, but is wholly or impartially misguided or erroneously governed, or it is an impairment of one or more of the mental faculties, accompanied by or inducing a defect in the power of comparison.
(10) I have already mentioned the circumstances under which the guardian-ad-litem came to be appointed. Therefore the learned advocate says that this case would come within the ambit of the Nagpur decision and especially when the c itself defines in S. 3(5) a lunatic as meaning an idiot or persons of unsound mind. In Nageshwar Prosad Singh v. Rudra Prokash Singh, ILR 31 Cal 210, the term lunatic was held to include one who is so found by a competent court on proper evidence. It appears to me, therefore that this is a case falling within the ambit of .
(11) This decision has been followed in a Full Bench decision by the Bombay High Court in Narayan v. Ramachandra, (S) : AIR1957Bom146 . The Bombay High Court pointed out that the established law on the point laid down by the Federal Court in does not apply to the case of Hindu adult who is under a disability and the alienation is by his de facto guardian or manager. It was argued in the Bombay High Court that there was no distinction in principle between the case of a minor and an adult under a disability. But the Full Bench repelled this contention and came to the conclusion that the de facto manager of the estate of an adult Hindu who is incapable of contracting because of unsoundness of mind cannot alienate the property even in case of necessity.
(12) Therefore the alienation made by the mother and the wife has got to be held as void and as conferring no title on the plaintiff or his predecessor-in-title.
(13) The learned advocate, Mr. Gopalaswami Aiyangar, raised two interesting arguments, which however are not germane to the controversy before us. First of all he argues that a congenital deaf mute idiot is excluded from inheritance and therefore his mother becomes the owner of the property, the excluded person being entitled only to maintenance though not tainting the blood of any son who might be born to him. But the case here is not that the property belonged to the mother and therefore she alienated the property and it was not open to anybody to question that transaction. On the other hand, the mother purports to have dealt with the property as the guardian of her son and in this she is joined by the wife of the idiot. The addition of this Oomayan makes no difference because when he is incapable of contracting and his inclusion in the document was a mere waste of paper and adds no more legal basis for the validity of the transaction.
(14) The second argument of the learned counsel is that Mr. Natesan's client, namely, the usufructuary mortgagee, is also in the same boat. But two blacks will not make one white. In this case all we have got to decide is whether the plaintiff can redeem the property and once it is found that he has no title to redeem having no valid title, the other questions become otiose.
(15) The net result of this analysis is that this second appeal has got to be dismissed and is hereby dismissed and in the circumstances without costs throughout.
(16) Appeal dismissed.