(1) This second appeal is preferred against the decree and judgment of the learned Subordinate Judge of Salem, in A. S. No. 133 of 1953, reversing the decree and judgment of the learned District Munsif of Krishnagiri in O. S. No. 248 of 1950.
(2) One Swarnambal, the deceased first plaintiff, whose daughters are the second plaintiff and defendants 6 and 7, filed the suit, out of which this second appeal arises, for redemption on the footing that she had inherited the properties of her husband one Pappachari who died in the year 1928. Pappachari had a son by name Moogi Puttuswami who died 1 1/2 years before the date of this suit leaving a widow and a minor daughter, defendants 3 and 4 respectively. Moogi Puttuswami was born deaf mute and this is the finding under issue 2 which is not challenged. The suit properties were usufructuarily mortgaged by the first plaintiff in favour of the first defendant on 30-3-1943. While so, defendants 3 and 4 claiming rights in the properties as the heirs of Puttuswami mortgaged the same properties on 4-2-1950 in favour of defendants 2 and 5 for a consideration of Rs. 700/- for discharging the prior mortgage debt dated 30-3-1943 and also the alleged debts of Puttuswami.
The learned District Munsif decreed the suit for redemption holding that since Puttuswami was held to be congenitally deaf and dumb, he could not have inherited his father's properties on his death in 1928, and that the first plaintiff alone had inherited them. On appeal the learned Subordinate Judge called for a finding on an issue which he framed, viz., 'Whether the suit properties are the ancestral or self-acquired properties of Pappachari?' This order was taken in revision by the second plaintiff in C. R. P. No. 305 of 1954 and it was dismissed with the observation that the interests of justice required that the matter should be investigated and the fact finally ascertained as to the nature of the property.
The learned District Munsif after giving the parties an opportunity to adduce further evidence and marking Exs. A-2 and A-3, the Road Cess Chittas, and Ex. B-5, a registered partition deed dated 11-6-1925 between Pappachari and his three brothers, and Ex. B-6, a registered sale deed dated 9-7-1878 by Sathan and others in favour of Balakrishnnappa, the father of Pappachari, found that the three items of properties covered by the suit were the ancestral properties of Pappachari and not his self-acquired properties as contended by the second plaintiff.
(3) The learned Subordinate Judge after receiving this finding held that these items were enjoyed by Pappachari as his ancestral properties which he got after partition and not his self-acquired properties. On that footing he came to the further conclusion that on the death of Pappachari, Moogi Puttuswami as the sole surviving coparcener took the whole of the family estate and that on the death of Moogi Puttuswami his heir was his widow viz., the third defendant and that therefore the deceased first plaintiff had not inherited the properties and that her mortgage in favour of the first defendant was without title.
(4) Hindu Law recognises certain disqualifications as disabling a person from inheriting as the heir of another, the onus of proving which is upon the person alleging them, and these disqualifications some of which have been removed by legislation, may be conveniently classified as (a) physical, e. g., congenital-deafness and dumbness; (Hira Singh v. Ganga Sahai, ILR 6 All 322 : 11 Ind App 20 (PC); Savitribai Ganesh v. Bhaubhat Sakharambhat : AIR1927Bom103 Mt. Budha Kuer v. Mt. Sahodra Kuer, : AIR1931Pat367 ; Anukul Chandra v. Surendra Nath : AIR1939Cal451 mental, e. g., lunacy at the time the succession opens; (c) moral, e.g., unchastity of the widow of the last owner; (d) religious, e. g. loss of caste and (e) equitable, e. g., murderer excluded from inheriting the estate of the person whom he has murdered.
In this case we are concerned only with the physical disqualification viz., congenital deafness and dumbness. These disqualifications have now been removed by the Hindu Inheritance (Removal of Disabilities) Act of 1928. This Act which came into force on 20-9-1928 is, however, not retrospective and does not apply to any person governed by the Dayabhaga School of Hindu Law (See N. R. Raghavachariar's Hindu Law, Third Edition, page 472).
(5) It has often stated that the exclusion from partition and inheritance was based upon the incapacity to perform sacrifices and religious ceremonies. The answer to it was given by Sadasiva Ayyar, J. in Surayya v. Subbamma, ILR 43 Mad 4 : AIR 1920 Mad 361.
'Sudras were never entitled to perform vedic ceremonies nor Chandalas and other depressed classes. The laws of inheritance and exclusion from inheritance apply not only to the three castes or Dvijas (entitled to perform vedic ceremonies) but to all Hindus. (Vana Valkya in II 136 makes the rules of exclusion applicable to all the four classes). If therefore seems impossible to base the exclusion on incapacity to perform vedic ceremonies.'
According to Dr. Jolly, those who were incapable of work or trade on account of physical spiritual or moral defects were excluded from inheritance. (Jolly L and C 182) Baudhayana's bracketing together the minors and the disqualified heirs (Baudhayana II 2-3-36 (minors); 37-40 (disqualified heirs) and the illustrations of disqualified heirs in the earlier Dharmasutras (Apas II 6-14-1-15 (Madman, outcaste, enuchs; Vas XVII 54 enuchs and madmen) bear out the view that physical and mental incapacity to beget offspring formed the real foundation of the rules of disqualification. The exclusion of the outcaste and the person addicted to evil deeds was based on social grounds.
The theory that exclusion from succession was based mainly on religious motives appears therefore to be unfounded. It would be truer to say that the bar on disqualified persons was imposed not exclusively nor even primarily on religious grounds but in part on such grounds but chiefly on physical and mental incapacity. This conclusion derives great support from such a materialistic treatise as the Arthasastra of Kautilya (Arthas III 5-29-33 Jolly's edn; Shama Sastri 199) which gives substantially the same categories of disqualification. (See Mayne on Hindu Law and Usage, Eleventh Edition, pp. 713-714).
Dr. Gour in his Hindu Code Fourth Edn. at p. 992 is of the opinion that the true reason is that as the disqualified persons took no hand in the fighting, they took no hand in the estate though the reason assigned in the vedic Texts is that the disabilities of life are the results of past sins and consequently incompetent to inherit. It seems to be an obvious instance of the lame, the blind and the halting going to the wall in the fierce struggle for existence and of the survival of the fittest which characterises all primitive stages of civilisation.
(6) The disabilities which exclude a male from inheritance also exclude a female from inheritance: Bakubai v. Manchhabai, 2 Bom HCR 5, where an heir is disqualified, the next heir of the deceased succeeds as if the disqualified person were dead. Bodhnarayan Singh v. Ajodhya Prasad Singh, 13 Moo I. A. 519 (PC). The disqualified person transmits no interest to his heir. Budha Kuer, : AIR1931Pat367 . The disability is purely personal, and does not extend to the legitimate issue of the disqualified heir. But adopted sons of disqualified heirs are not entitled to this heritable right. Mt. II-10-11 (See Mulla's Principles of Hindu Law, 12th Edition, 1959 at pages 184-185).
(7) S.V. Gupte in his Hindu Law, Second Edition, at page 496, commenting upon 'when succession opens' points out that the disability must exist at the time the succession opens, that is on the death of the owner whose estate is in question; but in Hindu Law succession may open more than once as where a female taking a limited estate intervenes; in that case, the material date is the date when the succession opens again, i. e. the date of the death of the limited owner.
(8) In regard to the rights of after-born son of a disqualified heir, the following apposite passage from Mayne's Hindu Law (Ibid) at pages 718 to 720, may be usefully referred to:
'The effect of a disability on the part of a person who would otherwise have been heir is at once to let in the next heir. For instance, if a man left an insane son, a daughter, the latter would take at once 2 W Mac N 42. So, if he left an insane daughter, and sons by her, the latter only would succeed (Bodhnarayan 13 Moo I. A. 519. In other words, the effect of the disqualification is, for purposes of succession, exactly the same as if the disqualified person were then dead or non-existent.
If the incapacitated person has issue then living, or en ventre sa mere, who would, if the father were actually dead, be the next heir, such issue will be entitled to succeed. But he must succeed on his own merits. He will not be allowed to step into his father's place. For instance, if a man dies, leaving a brother, and an insane brother and his son, the brother will take the whole estate; because the nephew cannot inherit while a brother is in existence. So, if a man dies leaving a sister's son, who is insane, and the sister's son himself has a son, the latter cannot in Bengal inherit because the sister's grandson is not an heir (Pef Peacock C. J. in Kalidas Das v. Krishna Chandra Das, 2 Beng LR 103).
If and when the defect which produces exclusion is subsequently removed, the right to inheritance revives but not so as to divest the estate already vested in another person (Mitakshara, 11, X, 7; V May IV-XI-2. In Deo Kishen v. Budh Prakash ILR 5 All 509, the widow of a man was insane at the time the succession opened to his estate. His daughter's son was held to be the heir in default of a nearer qualified heir. It was also held that although a person becomes qualified to succeed to property after the disqualification ceases, he cannot resume property from an heir who has succeeded to it in consequence of his disqualification existing at the time the succession opened.
As in such cases the Hindu Law never allows inheritance strictly so called to be in abeyance--the right of succession to the estate of a deceased owner vest immediately on his death in his nearest heir and the rule against divesting an estate already vested applies both to Dayabhaga inheritance and to obstructed inheritance under the Mitakshara law. Where in default of a qualified heir the estate has vested in the next heir, it cannot be divested by the removal of disqualification of the excluded heir who, if he were not disqualified, would have taken only as an obstructed heir: 2 Beng LR 103 (Dayabhaga case); Narasimharazu v. Veerabhadrarazu, ILR 17 Mad 287; Krishna v. Sami, ILR 9 Mad 64; Venkateswara Pattar v. Mankavammal 69 Mad LJ 410 : AIR 1935 Mad 775. So too, if the incapacitated person has a son subsequently conceived that son will not inherit, even though he would have been the next heir if he had been in legal existence at the time the succession opened (ibid).
But the case is however different under the Mitakshara law where the disqualified person is the son of the deceased. Where his disqualification is congenital, he would have no right by birth, according to the express text of the Mitakshara in II X placitum 1. Where the disqualification arises after birth and disentitles him to take his father's property or to a share on partition, it is clear that the right by birth which is already vested in him is not destroyed by the subsequent disqualification but lies dormant. (Muthuswami Gurakkal v. Meenammal ILR 43 Mad 464 : AIR 1920 Mad 652 : 69 MLJ 410 : AIR 1935 Mad 775. Mt. Dilraj Kuer v. Rikheswar Ram Duley, : AIR1934Pat373 Placitum 7 of the Mit., II, x, would undoubtedly apply to a case where the supervening disqualification is removed, and possibly also to a case where the congenital disqualification is subsequently removed.
In the former case, but for the disqualification, he would have taken as an unobstructed heir, whether the property was ancestral property or the father's self-acquired property. His right in such a case which was dormant becomes active and enforceable and if the disqualification ceased, he would be entitled to divest the person in whom the estate was vested in the meantime as for an obstructed inheritance. So too, if a son is born to a disqualified person, whether the disqualification was congenital or arose subsequent to his birth, that son would be entitled to divest the estate of any one who had taken the estate in the meantime.
The views expressed by Peacock, C. J. in 2 Beng LR 103, a Dayabhaga case, as to the Mitakshara rule were only obiter dicta and have been dissented from by a Full Bench of the Madras High Court in ILR 9 Mad 64 where the distinction between an obstructed and an unobstructed inheritance is clearly laid down. But in Bapuji v. Pandurang, ILR 6 Bom 616 where a man died leaving his undivided son born deaf and dumb and his undivided brother's son, it was held that the nephew succeeded to the entire family estate on the death of the uncle and that a son born to the disqualified son could not divest the nephew to the extent of his share.
In Pawadewa v. Venkatesh, ILR 32 Bom 455, where a widow succeeded to her husband's estate in the presence of a disqualified son, it was held that a son born subsequently to the latter would not divest the widow's estate. Both these decisions overlook the well-established distinction between the lineal succession of the male issue which is unobstructed and collateral succession which is obstructed. Even the congenitally disqualified son's right being latent,, would come into operation when the disqualification ceases, as it does in the case of an after-born son. The Allahabad, Bombay and Patna High Courts have recently adopted the view laid down in ILR 43 Mad 464 : AIR 1920 Mad 652 Moolchand v. Chahta Devi : AIR1937All605 Bhagawati Saran v. Parmeswari Nandan, ILR (1942) All 518 : AIR 1942 All 267; Vithaldas Govindram v. Vadilal Chhaganlal, : AIR1934Pat373 .
In two Full Bench decisions the High Court of Madras has purported to extend the principle of these decisions. In one case, it was held that a congenital idiot has in law the status of a coparcener and that he could successfully impeach a bequest made by his father as the sole surviving coparcener in favour of his widow. In the other case, the Full Bench decided that a congenitally deaf an dumb person is, in spite of his disqualification, entitled to take and enjoy the whole estate when he becomes the sole surviving member of the family (Amirthammal v. Vallimayil Ammal, ILR 1942 Mad 807 : AIR 1942 Mad 693 ; Kesava v. Govindan, ILR (1946) Mad 452: AIR 1946 Mad 287. The correctness of these decisions is some-what open to question.'
But that apart on the facts of this case there was no question of Puttuswami being the sole surviving member of the family of the estate devolving on heirs outside the family or of escheat to the Crown and therefore the ratio ILR 1946 Mad 452 : AIR 1946 Mad 287 is not applicable to the facts of this case; ILR 1942 Mad 807 : AIR 1942 Mad 693 is authority only to the proposition that a congenital idiot has the status of a coparcener notwithstanding that he is excluded from the enjoyment of his share and which ratio follows only ILR 9 Mad 64 as stated in ILR 1942 Mad 807 : AIR 1942 Mad 693 itself.
(9) In ILR 9 Mad 64 it was further held that under the Hindu Law of inheritance in Southern India, 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 they were born after the death of their grandfather and that in such a case the estate vests on the death of the grandfather in the qualified heirs subjected to the contingency of its being divested on the recovery of the disqualified, or the birth of a qualified heir.
(10) See also C. S. Ramakrishna's Hindu Law, Volume II pages 209-210, where the contrary decisions of the other High Courts are referred to viz., the son of a deaf and dumb man born after the death of his grand father cannot succeed to the estate descended from him; Sarvadhikari's Principles of the Hindu Law of Inheritance Second Edition, (Tagore Law Lectures) at page 842; Golapchandra Sarkar, Sastri's Hindu Law, Eighth Edition, p. 518. where the decision of the Calcutta High Court in 2 Beng LR 103 that the widow is not divested by a son, of a disqualified son born subsequent to her succession is referred and it is stated that this rule cannot apply to the Mitakshara family, and the decision of this Court in ILR 9 Mad 64 is referred as laying down in the correct principle. (The Madras High Court followed the principle underlying the decision in Raghunadha v. Brozo Kishore 3 Ind App 154 : ILR 1 Mad 69 (PC); West and Majid's Digest of the Hindu Law, Fourth Edition, pages 141 and 150; and Gour's Hindu Code, Fourth Edition, page 993.) (The disqualification of a person disqualifies his widow and adopted son and even his other heirs, since the disqualified person has no jural existence and having no rights or his own, he can transmit no rights to his heirs).
(11) Bearing these principles in mind, let us examine the facts of this case set out in the form of chronological form of events.
26-5-1928. Pappachari died and the first plaintiff took possession and began to enjoy the properties as the widow and the only qualified member of the family at that time.
30-3-1943. The first plaintiff leased out or executed a usufructuary mortgage of item 1 of the plaint schedule in favour of the first defendant for Rs. 250/- under Ex. B-1.
October 1948. Moogu Puttuswami died, one and a half years before the filing of the plaint.
10-1-1950. Notice by the first plaintiff to the first defendant for redemption of the mortgage Ex. B-1 dated 30-3-1943. No reply.
4-2-1950. Ex. B-2, usufructuary mortgage, was executed in favour of defendants 5 and 2 by defendants 3 and 4 i. e., the widow and daughter respectively of Moogu Puttuswami the disqualified son of Pappachari in respect of all the three items of the suit property.
8-4-1950. Plaint in the present suit O. S. 248 of 1950 for redemption filed by the first plaintiff against the first defendant, the mortgagee of item I under Ex. B-1, and against defendants 2 and 5, the mortgagees from defendants 3 and 4.
25-4-1951. Pending suit, the first plaintiff executed the gift deed Ex. A-1 in favour of her elder daughter, the second plaintiff.
1952. The first plaintiff's legal representatives, i. e., the second plaintiff and defendants 6 and 7 (the other daughters of the first plaintiff) were brought on record in I. A. No. 923 of 1952.
(12) On these facts there can be no doubt that the conclusion of the learned District Munsif is correct. Pappachari died on 26-5-1928. The Hindu Inheritance (Removal of Disabilities) Act of 1928 came into force on 20-9-1928 and it is not retrospective. Therefore, on the date of death of Pappachari, his son the congenital deaf and dumb Moogu Puttuswami was disqualified and in the eye of the law was as if were dead. Hence, the wife of Pappachari Intervened taking a limited estate and the succession opened on the date of her death viz., in 1952.
That succession could naturally be only to the last male owner viz., Pappachari. So, in 1952 who were the heirs of Pappachari? The contending people before us are Pappachari's daughters and Moogu Puttuswami's widow and daughter. In other words, the contest is between the daughters of the last male owner and the widowed daughter-in-law and the Poutri of Pappachari. The daughters rank as No. 5 in the Mitakshara succession: vide Mulla's Hindu Law, 12th Edition, page 123. The predeceased son's widow, widow of predeceased son of predeceased son and after 14-4-1937, the widow, the predeceased son's widow and predeceased son's predeceased son's widow, rank above that order in the order of priority.
In the case of a widow of a disqualified person, though the disqualified person does not transmit his disability to his heirs, it is, as already stated, the settled law that the disqualification of a person disqualifies his widow and adopted son and even his other heirs, since the disqualified person has no jural existence and having no rights of his own, he can transmit no rights to his heirs. But in the case of his son and son's son, their rights do not arise through the father but they have vested rights as members of a coparcenary claiming through their grandfather and great grandfather, the disqualified person not transmitting his disability also to his son and son's son. The disqualification is only personal and does not taint the blood.
So, if Moogu Puttuswami had left behind a son and not a daughter that son would have by reason of unobstructed heritage succeeded to the properties of his grandfather Pappachari. Therefore, the widow of Moogu Puttuswami has got to be ruled out from the list of heirs and the position of Moogu Puttuswami's daughter in the Mitakshara succession has got to be considered. That son's daughter ranks as No 13A: vide Mulla, page 127. This is the place assigned to the son's daughter by the Hindu Law of Inheritance (Amendment) Act 2 of 1929. Before that Act she was recognised as an heir only in the Bombay and Madras States, where she ranked as a Bandhu. Under the Act she inherits as an heir in all places where the Mitakshara law applies, and succeeds immediately after the father's father, whose place is No. 13.
The son's daughter before the passing of the Hindu Succession Act of 1956, took an absolute estate in Bombay, and in Madras she took a limited estate. On the other hand, the daughters of the last male owner took the rank of No. 5. The daughters do not inherit until all the widows are dead. As between daughters, the inheritance goes, first to the unmarried daughters, next to daughters who are married and unprovided for, that is, indigent, and lastly to daughters who are married and are enriched i. e., possessed of means. A married daughter may be a widow. No member of the second class can inherit while any member of the first class is in existence and no member of the third class can inherit while any member of the first or the second class is in existence Two or more daughters of a class take the estate jointly as in the case of widows, with rights of survivorship.
On the death of the daughter who took a limited estate in the estate of her father, the estate passes not to her heirs but to the next heirs of her father viz., reversioners. This has now been altered under S. 14 of the Hindu Succession Act, 1956, which subject to certain qualifications, confers full heritable capacity on a female heir in respect of all property acquired by her whether before or after the commencement of that enactment. In this case the daughters of Pappachari have been brought on record viz., the second plaintiff and defendants 6 and 7.
They are the persons entitled to the estate of Pappachari when the succession opened and they would now take absolutely Pappachari's estate, but subject to the rights of maintenance of Moogu Puttuswami's widow and daughter. It is well settled Hindu Law, that where a person is excluded from inheritance on account of disability, he and his wife and children are entitled to maintenance out of the property which he would have inherited but for the disability and where he is excluded from a share on partition, he and his wife and children are entitled to have provision made for their maintenance out of the joint family properties; Vijnanesvara says:
'Those persons the impotent man and the rest are excluded from partition. They do not share the estate but must be supported by an allowance of food and raiment only' Mit. II-X-5-6-10; Smriti Chandrika v; Madhaviya p. 49; Sarasvati Vilasa paras 146-149; V May IVXI; Viramit VIII (Setlur II, 461), Vivadaratnakara V; Vivadachintamani 242-246; Dayabhaga v; Raghunandana IV, Setlur II 483-484 Ram Sahya v. Lalla Laljee, ILR 8 Cal 149; Ram Soonder Roy v. Ram Sahae, ILR 8 Cal 919; Mitakshara, Chap. ii, S. 10 (Mulla, page 187, S. 110; Mayne p. 714 S. 596).
(12a) The net result of this analysis is that the decree and judgment of the learned Subordinate Judge have got to be set aside and are hereby set aside and the decree and judgment of the learned District Munsif are restored viz., that the second plaintiff and defendants 6 and 7 are entitled to the reliefs of declaration, possession and the redemption in respect of item 1. The suit properties and the properties of Pappachari are declared to be subject to a charge for the maintenance of Moogu Puttuswami's widow and daughter, which right will have to be worked out by them in separate proceedings. Time for redemption: Three months. This second appeal is allowed and in the circumstances without costs.
(13) Order accordingly.