M.M. Ismail, J.
1. The plaintiff in O.S. No. 675 of 1957 on the file of the City Civil Court at Madras, whose suit was dismissed by the learned Fourth-Assistant Judge on a preliminary point is the appellant before this Court. The plaintiff and the first defendant are brothers, they being the sons of one Parthasarathy Mudaliar who died in 1945. The 16th defendant is the widow of the deceased Parthasarathy Mudaliar while the 9th defendant is the daughter of the deceased. The suit was instituted by the plaintiff in forma pauperis for declaration that certain. alienations of properties belonging to the joint family effected by the first defendant are null and void and not binding upon him and for partition-and separate possession of his 1/3rd share in all items of the properties except arable lands and one half share in arable lands. The case of the plaintiff was that the ancestral business was one in yam in Kothwal Bazaar and the properties were acquired out of the income from that business and that the first defendant who, after the death of their father, became manager of the joint family got into evil ways and for the purpose of meeting his illegal and immoral desires, he borrowed liberally and alienated the properties. The further case of the plaintiff was that the first defendant started a new business in horse trade in which he had no experience whatever which also ended in loss and the first defendant happened to borrow money from Multani money-lenders at usurious rates of interest and it is for the purpose of discharging the debts so incurred he had to alienate the properties of the family. Defendants 5, 6, 11, 12 and 13 are the mortgagees of certain items of the properties while defendants 7, 8, 9, 14 and 15 are purchasers of certain other properties. The fifth defendant filed a written statement contending that the alienations were for binding purposes and for family necessity and consequently binding on the plaintiff. It may be mentioned in this context that one other ground urged by the plaintiff in the plaint to which detailed reference will be made hereafter was that he was a man of weak understanding, incapable of looking after himself and manage his affairs and that was taken advantage of by the first defendant in alienating the properties. It is for the very same reason, the, plaintiff sought the leave of the Court to institute the suit by his next friend, namely, his wife Padmavathi Ammal and that prayer was also granted by the trial Court. With reference to this allegation, the fifth defendant repeatedly contended in the written statement that the plaintiff executed the documents not only on his behalf but on behalf of his minor sons also and his allegation in the plaint that he was of defective understanding and an imbecile and therefore the first defendant had a free hand in the management of the, joint family properties of the family was untrue. She contended again in paragraph 9 of the written statement that the plaintiff was never mentally infirm or defective in understanding and he joined in all the mortgages and other documents executed by the first defendant. She elaborated this in paragraph 11 of the written statement contending that the allegation in the plaint that the plaintiff had always been incapable of protecting his interests or that he was defective in understanding and incapable of acting for himself or on behalf of his minor children or of entering into any contractual obligations were absolutely false and invented only for the purpose of defrauding and cheating the creditors of the family including the fifth defendant it is also false to say that the first defendant obtained the plaintiff's signature to the mortgage executed in favour of the fifth defendant while the plaintiff was of defective understanding; the plaintiff had been and was perfectly sane and capable of understanding and entering into contractual obligations; the plaintiff had executed the mortgage in favour of the fifth defendant of his own free will and consent and in full possession of his senses understanding the real nature and import of the document he was executing and he also appeared before the Sub-Registrar of Sowcarpet, admitted execution of the mortgage deed and also registered it and the Sub-Registrar would not have registered the mortgage under Section 35 of the Indian Registration Act, if the plaintiff was really a lunatic or an idiot. In support of this case the fifth defendant also contended that the plaintiff had executed and registered a number of other documents in favour of other persons. On the pleadings, the learned trial Judge framed the necessary issues and as a matter of fact the next friend of the appellant was examined as P.W. 1. At that stage, the fifth defendant in the suit came forward with an application to file an additional written statement raising a new plea. In the affidavit filed in support of this application, the fifth defendant had stated that she was advised to state that even on the allegations in paragraphs 3, 6 and 13 of the plaint, the suit for partition was not maintainable under Hindu Law. The additional defence sought to be taken was that on the allegations in paragraphs 3, 6 and 13 of the plaint that the appellant is a person of defective understanding and an imbecile and as such incapable of protecting his own interest which allegations, however, the fifth defendant denied, the appellant was not entitled to file the suit for partition in claiming his share in the joint family properties. This application was allowed and an additional Issue was framed by the trial Judge as follows:
Is the plaintiff's suit not maintainable as contended by the fifth defendant in his(?) - (her) additional written statement?.
By agreement of parties, the additional issue so framed was agreed to be argued as a preliminary issue and on this point the learned trial Judge held against the appellant on 1st May, 1961 and in view of this, he dismissed the suit. Hence the present appeal by the plaintiff in the suit.
2. As pointed out already, the additional issue was framed and the additional defence was taken solely on the basis of the averments contained in paragraphs 3, 6 and 13 of the plaint and admittedly no evidence whatever was let in by the fifth defendant to substantiate the defence taken by her in the additional written statement and at the stage when the additional written statement was filed, the wife, the next friend of the appellant, was in the process of being examined. Consequently it is necessary to examine the averments contained in paragraphs 3, 6 and 13 of the plaint to find out whether the fifth defendant was justified, on the basis of those averments, in putting forward the contention that the suit itself was not maintainable since the appellant was not entitled to claim partition. In paragraph 3 of the plaint, the relevant statement is that the plaintiff-appellant is a person of defective understanding and an imbecile and as such incapable of protecting his own interest. In paragraph 6, the relevant allegation is that as the plaintiff was defective in understanding and an imbecile, the first defendant had a free hand in the management of the family business and properties. In paragraph 13, the averment was that the plaintiff had always been incapable of protecting his interest; on account of his defective understanding he was incapable of acting for himself or on behalf of his minor children or entering into contractual obligations; while he was in such a condition the first defendant appeared to have obtained the plaintiff's signature to the documents detailed in paragraphs 9 and 10 and the plaintiff never understood the real nature and import of the said documents to which his signatures were taken and in no sense was a contracting or a consenting party to the said documents either on his own behalf or on behalf of his minor children.
3. Before we refer as to what we understand from those averments in the plaint, it is necessary to refer to the legal ground urged in support of the plea of non-maintainability of the suit. The contention that was put forward and accepted by the trial Court was that under the Hindu Law a congenital idiot or lunatic was not entitled to inheritance or obtain a share in Joint family property and even if the lunacy or idiocy is supervening the person concerned is incapable of instituting a suit for partition. Therefore, we have to consider whether the averments to which we have made reference (in paragraphs 3, 6 and 13 of the plaint) contain any statement to indicate or show that the appellant herein was a congenital idiot or a lunatic, or if that is not established from the averments, whether the appellant can be said to be a person suffering from supervening lunacy and therefore, in law disqualified from instituting the suit for partition. Before us, reliance has been placed upon Exhibits A-12 and A-14, two of the certificates issued by the Superintendent of the Government Mental Hospital, Madras with regard to the condition of the appellant. As far as Exhibit A-12 is concerned, it is dated 8th October, 1956, and the certificate itself points out that the Superintendent who granted the certificate examined the appellant who was aged 28 on 8th October, 1956, and on the basis of that examination granted the certificate. The certificate, after pointing out that the appellant was unable to walk upto his seventh year of age, began to talk only when he was 12 years old and used to talk and he talked in monosyllables and his gait was shabby and shuffling and that condition had been progressing gradually, wound up by saying that the case was of mental defect amounting to imbecility, unfit to manage his own affairs and that that was a progressive condition which had been developing since childhood. As we pointed out, there is nothing to show that the Superintendent who granted the certificate had examined the appellant earlier to 8th October, 1956 and his statement that it was a progressive condition which had been developing since childhood was only a matter of his opinion. Even that statement does not establish that the condition of the appellant was a congenital one. The second certificate is dated 21st September, 1960 and that has been issued after the appellant was kept under observation from 12th September, 1960 to 21st September, 1960. The certificate stated that the appellant's case was of mental deficiency amounting to feeblemindedness and in the opinion of the Superintendent who granted the certificate this defect existed from birth onwards. Here again we are unable to agree with the contention of the learned Counsel for the appellant that Exhibit A-14 establishes that the appellant was a congenital idiot. It may be mentioned in this context that Exhibits A-12 and A-14 were produced on behalf of the appellant himself for the purpose of enabling his wife Padmavathy to act as the next friend of the appellant in instituting the suit. Apart from these two certificates, the only other reliance was as we pointed out already, on the averments contained in paragraphs 3, 6 and 13 of the plaint and We are clearly of the opinion that the said averments do not amount to either an allegation or an admission that the appellant was an idiot or a lunatic congenially. In this context, it is rather difficult to understand what exactly the trial Court has actually held. The learned trial Judge points out in paragraph 9 of his judgment that from the description of the plaintiff in the plaint it cannot be said that the plaintiff is not an imbecile from birth. Again in paragraph 12 of the judgment, he states that in his opinion, from the description of the plaintiff in the plaint the plaintiff is a person who is a lunatic and he states further:
I am also of the opintion that not having been stated explicitly that the plaintiff is not a lunatic from birth it can be presumed that he is a lunatic from birth.
We are unable to agree with the reasoning of the learned trial Judge in this behalf. Certainly when the plaint does not proceed to state that the appellant was not a congenital lunatic and proceeds to state his mental capacity and condition at the time, the transactions were entered into and at the time when the suit was instituted, no obligation whatever was imposed on the next friend of the plaintiff to state that the plaintiff was congenitally an idiot and from the absence of any such statement no presumption whatever can be drawn that he was a lunatic from birth. The learned trial Judge himself has not referred to any principle or authority on the basis of which such presumption can be raised. On the other hand, the burden was certainly on the fifth defendant who having obtained a mortgage deed from the plaintiff himself to establish that notwithstanding the fact she entered into the transaction with the plaintiff and obtained a document executed by him, the plaintiff happened to be a congenital lunatic or idiot. If she does not discharge that burden certainly the defence taken by the fifth defendant in this behalf cannot be upheld on the basis of any presumption as the learned trial Judge has done.
4. The other question for consideration is that if the mental defect of the appellant is not congenital but supervening, is he debarred from instituting the suit for partition. The learned trial Judge, accepting the contention of the fifth defendant had come to the conclusion that he is so debarred. In paragraph n of his judgment he states that under the Hindu Inheritance Removal of Disabilities Act such a person not being a lunatic front-birth is entitled to a share. Notwithstanding this, he expresses his opinion that all that the Hindu Inheritance Removal of Disabilities Act lays down is that a person other than one who has been from birth a lunatic or an idiot shall not be excluded from inheritance or from any right or share in the joint family property and that no doubt meant that a person who has not been a lunatic from birth can have a share in the joint family property but certainly it would riot mean that a person who had not been a lunatic from birth can file & suit for partition. The learned trial Judge has not given any reason whatever for coming to this conclusion. In our opinion this conclusion is thoroughly erroneous and it is directly opposed to the provisions, of the statute to which he was making a reference. Section 2 of the Hindu Inheritance (Removal of Disabilities) Act (XII of 1928) 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 joint family property by reason only of any disease, deformity or physical or mental defect. From the terms of the statute itself, it is clear that the only disqualification out of the many that the textual Hindu Law had prescribed, which had been preserved by the statute is the disqualification arising from congenital lunacy or idiocy and that all the other disqualifications have been wiped out. If so it passess one's comprehension as to how the learned trial Judge can hold that notwithstanding the statutory provision the appellant herein was not entitled to institute the suit for partition.
5. There are two decisions on this point, one by a Bench of this Court, which is binding on us, and another by a Bench of the Mysore High Court. The decision of this Court is in Parameswaram Pillai Velayudham Pillai v. Parameswaram Pillai Narayanan Pillai : AIR1961Mad345 . That also was a case of a suit for partition instituted by one brother of unsound mind represented by his wife as a next friend for partition and separate possession of his half share against the other brother. The defence taken was that by virtue of the unsoundness of mind of the plaintiff, the suit for partition was not maintainable. In that case it was common ground that the unsoundness was not congenital but supervening. The Court had to consider the effect of the statute, namely the Travancore Hindu Inheritance (Removal of Disabilities) Act (XVIII of 1114. M.E.), corresponding to Central Act (XII of 1928) and deal with the argument of the plaintiff in that case that by virtue of his being a lunatic, he did not have any volition of his own so that he could not express his desire to obtain a partition to disrupt the joint status of the tarwad. It was pointed out:
The contention is based upon a fallacy. When a minor or lunatic represented by a guardian or next friend files a suit to enforce his rights under law, there is no question of any exercise of volition. A minor in law can have no volition but surely it cannot be contended that a guardian or next friend of a minor cannot bring a suit to enforce the minor's right to property including a suit for partition. There is no question here of a right to disrupt joint family status by unequivocal declaration of the intention of a coparcener to separate himself from the coparcenary. We are not concerned in this case whether it will be permissible to disrupt the status by such declaration on the part of a lunatic through his guardian or next friend. Here we have a case of a regular suit instituted by a next friend.
No authority was cited to us which has even a remote bearing on this question and which supports this odd contention on behalf of the respondent. Mr. Sarangapani Aiyangar referred to certain observations in Ratneswari Nandan v. Bhagwati Saran 1949 F.C.R. 715 : 1950 S.C.J. 514 : A.I.R. 1950 F.C. 142. It is unnecessary to deal with this decision because there is nothing in it or in the observation therein which h-as any bearing on the question which falls for decision in this case.
The decision of the Mysore High Court is Bapuram Vedavyasa Rao v. Bapuram Narayan Rao A.I.R. 1962 Mys. 18. That also dealt with a case of a suit for partition instituted by a person of unsound mind and represented by his next friend and the case directly involved the interpretation of Section 2 of Central Act (XII of 1928), which we have extracted already. The learned Judge after extracting the section stated:
We see that it speaks of not merely of 'inheritance' but also of 'any right or a share'. Shri Lakshmanaswami wants us to read the words 'or from any right or a share' as ejusdem generis, to the word 'inheritance'. If this contention, is correct the words, 'or from any right or a share' must be considered superfluous. Such an interpretation is opposed to the rules of construction of statutes. In our judgment, the words 'or from any right or a share' have been purposely introduced by the Legislature. Prohibition laid down by the Hindu Law-texts debarring parsons of unbound mind from claiming a share is removed by the Act. 'Any right' means all rights which includes a right to claim partition. Again a right to get a share means a right to get a separate share. The Act in question is a social legislation intended to remove certain social disabilities imposed by the customary Hindu Law. It calls for a benevolent construction. In our judgment 'the Act' placed a coparcener of unsound mind in the same position as that of a sane coparcener.
If we may say so, with respect, this judgment correctly interprets the relevant section. If the argument of the learned Counsel for the fifth defendant is to be accepted, the expression 'or any right or share' occurring in Section 2 will become really otiose or meaningless. Consequently we are of the view that the construction sought to be placed upon Section 2 of Central Act (XII of 1928) by the fifth defendant is an untenable one.
6. Mr. Dorairaj, the learned Counsel for the fifth defendant brought to our notice the following passage occurring in Mulla's Hindu Law, Thirteenth Edition, page 156, paragraph 107:
The High Court of Calcutta has held that a member of a joint family who was not born a lunatic, but is a lunatic at the time of partition is not entitled to claim his share by partition. This is also the opinion of the High Court of Allahabad.
In our opinion, this statement has no relevancy to the facts of the present case, because, in this case, Central Act XII of 1928 directly applies and the statement in the said book deals with the law as gathered from the textual Hindu Law. Mr. Dorairaj invited our attention to certain observations contained in the judgment of the Supreme Court in Muthammal v. Sri Subramaniaswami Devasthanam, Tiruchendur : 2SCR729 . That again dealt with the position resulting from the textual Hindu Law and did not deal with a succession which opened subsequent to the coming into force of Central Act XII of 1928. In that case the succession opened on 10th December, 1927, while the Act came into force on 10th September, 1928. As a matter of fact, the Supreme Court was fully aware of this position in the judgment referred to above and points out in paragraph 14 of the judgment that the Act itself was not retrospective. In view of this position, we are unable to draw any support for the stand taken by the fifth defendant from this judgment of the Supreme Court. We are therefore clearly of the opinion that the conclusion of the learned trial Judge that the suit for partition instituted by the appellant-plaintiff was not maintainable is erroneous and that conclusion has necessarily to be set aside and the dismissal of the suit has also to be set aside.
7. We may point out that we have considered the question of supervening idiocy or lunacy of the appellant only for the purpose of considering the maintainability of the suit and we have not expressed any opinion as to the contentions of the parties on the merits such as whether the appellant was fully aware of the nature of the transactions he was entering into when he executed the several documents on his behalf as well as on behalf of his minor children and that is a matter to be tried and decided as part of the controversy between the parties.
8. An argument was advanced before us that on the analogy of suit instituted for partition on behalf of a minor, with regard to a suit instituted on behalf of a person of unsound mind, the Court has to find out and determine whether the partition will be for the benefit of the plaintiff or not. As far as the present case is concerned, We do not have any doubt whatever that the partition will be for the benefit of the plaintiff-appellant since a vast majority of the family properties, if not the whole of it, had been alienated by the first defendant and those alienations are challenged in the present suit, incidental to the demand for partition and separate possession of the plaintiff's share of the properties. In these circumstances, we allow the appeal, set aside the dismissal of the suit and remand the suit to the trial Court for disposal on merits on the footing that the suit is maintainable and the partition demanded is for the benefit of the plaintiff-appellant.
9. The appeal has been filed in forma pauperis and since the appellant succeeded and the fifth defendant has failed in her defence on the preliminary issue, the Court-fee due to the Government on the memorandum of appeal will have to be paid by tha fifth defendant. There will be no order as to costs in this appeal.