S.K. Ghose, J.
1. This is a second appeal by the plaintiff in a suit for establishment of title to land and for recovery of khas possession. The land belonged originally to one Ekkari Bhattacharjee who died leaving a son named Kangali and a daughter named Shilabati. Kangali who was born in 1315 B.S., left home in 1333 B.S. and has not been heard of since then, so it is presumed that he is dead. He did not marry. Shilabati died childless in 1336 B.S. The plain, tiff's case is that he being the nearest heir as the son of Ekkari's brother has inherited the disputed property. The suit is contested by defendant 1 who is the husband of Shilabati, now deceased. His case is that Kangali was born deaf and dumb and so was excluded from inheritance, and that the property ultimately devolved on defendant 1 after the death of Shilabati and her son. The learned Munsif took up the question whether Kangali's alleged deafness and dumbness were congenital and incurable. Upon the evidence he held in the negative and in that view he decided that Kangali had inherited the disputed properties on his father's death and so the plaintiff has now become the heir of Kangali. Accordingly he decreed the suit. On appeal the learned District Judge decided upon the evidence that Kangali was a congenital deaf mute and as such debarred from inheritance, He therefore disagreed with the Munsif and dismissed the suit. Hence this second appeal by the plaintiff.
2. In this second appeal it is contended that the judgment of the learned Judge below is not a proper judgment of reversal as, he has not properly considered the points upon which the trial Court decided in favour of the plaintiff's case. The learned Judge has considered three items of documentary evidence saying that they were mainly relied on by the Munsif, namely the fact that Kangali's name was recorded in the settlement proceedings, that when filing objections under Section 103, Ben. Ten. Act, the defendant did not base his case on the allegation that Kangali was deaf and dumb, and thirdly that Kangali's name was mutated in respect of a revenue paying estate in the Touzi Register. The learned Judge holds that these items of documentary evidence cannot outweigh the oral evidence in favour of the defence and he remarks that the learned Munsif admitted that the oral evidence that Kangali was deaf and dumb was clearly in favour of the defence. The learned Judge however omits to consider what the Munsif did consider, viz. whether the witnesses are interested and how far their evidence would stand the test of consideration in the light of probabilities. The learned Munsif also pointed out that the plaintiff had bitter enmity with defendant 1 and his witness Dr. Manmatha Nath Mukherjee (D.W. 6). It seems to me that the learned Judge below did not consider the evidence in all its aspects as learned Munsif did.
3. I therefore accept the contention that the judgment is not a proper judgment of reversal. On that ground it must be set aside and the matter should be remanded to the lower Appellate Court for fresh consideration.
4. There is however a point of law taken in this appeal and it is necessary that it should be decided at this stage. Mr. Bose for the appellant before us has contended that in order to exclude Kangali from in-heritance it must be shown not only that he was born deaf and dumb, but also that this particular defect of his was incurable. He points out that the learned Judge below, although he finds that Kangali was a congenital deaf and dumb, said nothing about the defect being incurable. The judgment of the learned Munsif on the other hand shows that he had before him the question as to whether Kangali's alleged deafness and dumbness were both congenital and incurable. There was no dispute on the question of law before him and it seems to have been assumed that even if it was proved that Kangali was born deaf and dumb then, having regard to the circumstances, his deafness and dumbness were also incurable. I cannot say that such a view is unreasonable and it seems to me that the parties went to trial upon the case that, if it was proved that Kangali was born deaf and dumb, then his defect was not only congenital but incurable. In this case therefore it must be said that if the lower Appellate Court finds upon the evidence that it has been proved that Kangali was born deaf and dumb, then a separate question of fact as to whether that deafness and dumbness were also incurable would not arise for decision. Nevertheless, the question has been raised in the form of a question of law, namely that in order to disqualify from inheritance it must be shown that deafness and dumbness should be both congenital and incurable. That position is contested by Mr. Chakravarty for the respondent.
5. Modern textbook writers state that deafness and dumbness, in order to exclude from inheritance, must be both congenital and incurable. In these textbooks this statement is sought to be supported by reference to reported decisions: See, for instance, D.F. Mulla's Principles of Hindu Law, Edn. 8, Section 98, p. 103 where the cases are cited. Mr. Chakravarty has pointed out that these cases do not contain any express decision on the point and it there, fore remains to be decided whether this statement of the textbook writers can be supported by authorities. The point was suggested to be raised in Charu Chunder Pal v. Nabo Sundari Dasi (1891) 18 Cal. 327. That case however was decided upon a different point and a different set of facts. At p, 332 of the report Banerjee J. says as follows:
A good deal of argument was addressed to us on behalf of the appellant to show that dumbness, in order to disqualify a person from inheriting, need not be congenital; and if it were necessary to decide that question in this case, I should have felt inclined to answer it in favour of the appellant's contention. But I do not think it necessary to go into that question here.
6. So the point was not decided. The opinion of Banerjee J., which was undoubtedly of great weight, was considered by Shah J. in Savitribai v. Bhaubhat Sakharambhat : AIR1927Bom103 In that case it was expressly decided that under the Hindu law dumbness must be congenital in order to be sufficient to disqualify an heir from inheritance. Shah J. went further and gave it as his opinion that in order to constitute a disqualification, this particular infirmity must be shown to be incurable. In coming to the decision that dumbness must be congenital, the learned Judges relied on Vallabhram Shivarayan v. Bai Hariganga (1867) 4 Bom. H.C. 135 and some other Bombay decisions were referred to. This Bombay case appears to be the only express decision on the point we are considering. We have been referred to the Dayabhaga, Ch. V, the relevant provisions being in verses 6, 7, 9, 10, 11, 17 and 18 and also to the Mitakshara, Ch. 2, Section 10 the relevant provisions being in verses 1, 2, 3 and 7. It is conceded that the relevant passages in other commentaries like Dayakrahma Sangraha and Dayatatwa throw no further light on the subject. As between the Dayabhaga and the Mitakshara, there is a difference in the reading of text of Yajnyawalkya. Jimuta Vahana and 'Vachaspati Misra favour the reading 'adi' (and others) which gives to the text of Yajnyawalkya perhaps a wider significance. But it is not contended before us that with regard to the question of exclusion from inheritance on this particular point, there is a difference in the law in vogue in the two provinces, and therefore we are not concerned here with a supposed conflict of authorities as between the two commentaries. For this reason, I am disposed to agree with the reasoning of Shah J. and when he refers to a rule that where there are texts of two smriti writers on points, as to which one is silent, they must be read as supplementing each other as far as possible. The reference is to the texts of Manu and Yajnawalkya on which both commentators rely on this point. For my purpose I may take the two defects, deafness and dumbness together, as indeed they go together in real life when the defects are congenital.
7. As to the first question as to whether they should be congenital in order to disqualify from inheritance, it is to be noted that the texts quoted in the commentaries are not clear on the point. Manu mentions 'born blind and deaf' but 'dumb' without the qualification 'born'; Yajnyawalkya does not mention dumb' or deaf but mentions 'blind' without 'born' and he ends with the words 'incurable disease', as read in the Dayabhaga. But the annotations both in Dayabhaga and the Mitakshara show that the commentators themselves adopt a liberal interpretation and, reconciling the texts, they assume dumbness to be a disqualification in the same sense as blindness and deafness. In the 18feh verse the Dayabhaga considers an argument suggesting deafness and dumbness to be congenital. It is too late in the day now to say that dumbness, like deafness, in order to disqualify, need not be congenital. In some cases before the Judicial Committee the point was not disputed; for instance, the case in Hira Singh v. Gunga Sahai (1884) 6 All. 322 and the case in Lala Muddun Gopal Lal v. Mt. Khikhindu Kore (1891) 18 Cal. 341. There it was assumed that a person born deaf and dumb was excluded from inheritance under the Hindu law. From this it would be a small step further to say that deafness and dumbness should not only be congenital but also incurable. On this point, I am in sympathy with the reasoning adopted by Shah J. in the Bombay case.2 I have already referred to the 10th verse in the Dayabhaga which gives a reading of the text of Yajnyawalkya as concluding with the words 'a person afflicted with an incurable disease.' The corresponding passage in the Mitakshara concludes with the words ' as well as others similarly disqualified.'
8. As I have already stated, the reading of the text in the Mitakshara is wider and advantage is taken of this by the commentator in the third verse where he seeks to embrace in the term 'others' a' number of persons including the dumb, the whole group being composed of diverse and incongruous elements: See the remarks of Coutts-Trotter J. in Pudiava Nadan v. Bavanasa Nadan (1923) 10 A.I.R. Mad. 215 at page 970 where he points out that some of the disqualifications are so vague that no Court of law could now assert their validity. But although the concluding words of Yajnyawalkya are differently read, it is clear on both readings that Yajnyawalkya does not profess to give an exhaustive list of disqualified persons. I agree with Shah J. in thinking that the law-givers and commentators have in view only those defects which are of a very serious nature. If it be possible to read in the commentaries the provisions that deafness and dumbness must be congenital, it does not seem to be difficult to read the further provisions that those infirmities must also be incurable. Yajnyawalkya mentions 'incurable disease' as a generic class and it seems to me to be too narrow a view to take to say that a physical infirmity, which may not be a disease but which at the same time is incur, able, is not included as a disqualification. In Gunjeshwar Kunwar v. Durga Prosad Singh (1917) 4 A.I.R. P.C. 146 their Lordships of the Judicial Committee quote with approval the remarks of Jackson J. in Mohesh Chunder Roy v. Chunder Mohun Roy (1875) 14 Beng. L.R. 273:
A rule of Hindu law, which is relied upon as preventing the natural course of inheritance, ought to be clear and unmistakable.
9. It seems to me that where there is evidence to show that deafness and dumbness, though congenital, may be cured by treatment, to hold that such a defect would still be a bar to inheritance would be repugnant to one's sense of justice. So in the 7th verse the Mitakshara states that if the defect be removed by medicaments or otherwise, the right of participation takes effect.
10. In my view therefore the modern textbook writers are correct in stating that deafness and dumbness, in order to be a bar to inheritance, must be shown to be both congenital and incurable. It may be that in a particular case the one would follow from the other. It may also be that with the progress of medical science incurability may not be a reasonable inference. In that case the disqualification would be obsolete. But that is a matter with which I am not concerned here. The result is that the judgment appealed against must be set aside and the case remanded to the lower Appellate Court for fresh consideration upon the evidence on the record. As I have already stated, if it be held upon the evidence in this particular case that Kangali was born deaf and dumb then, it would follow upon the case made by the parties that these defects in this case are incurable. So the further question of incurability as a question of fact will not arise for consideration. Costs will abide the result.
B.K. Mukherjea J.
11. I regret that I have not been able to take the same view as my learned brother has taken on the question of law involved in this case. Having regard however to the opinion which he has expressed on the particular facts of the present case, the difference of opinion would not affect the result of this appeal and I would concur in the order of remand which has been passed by my learned brother. It is necessary however to state my own reasoning in support of the view, which I am taking on the point, as to whether for excluding an heir from inheritance according to Hindu law, it is necessary not only that he must be born blind and deaf but that the defects must be proved to be incurable. In this case the facts are not disputed. The properties in suit belonged admittedly to one Bkkari who died in 1314 B.S. leaving a widow Lanchu Bala and a daughter named Shilabati. Panchu Bala gave birth to a posthumous son shortly after the death of her husband and this son was named Kangali. Kangali left his house some time in the year 1333 B.S. and since then has not been heard of. It is the case of both sides that Kangali is either dead or must be presumed to be so. The question therefore arose as to who would succeed to the properties left by Ekkari. According to the plaintiff the properties left by Ekkari would devolve upon Kangali and after Kangali's death upon the present plaintiff who is the nearest agnate and heir according to Hindu law. The case of defendant 1, on the other hand, is that Kangali was born blind and deaf and consequently he was excluded from inheritance. The properties of Ekkari therefore would devolve upon his widow, his daughter Shilabati and Shilabati's son in succession, and on the death of Shilabati's son it devolved upon defendant 1 who is the husband of Shilabati. The whole controversy therefore centres round the point as to whether or not Kangali was excluded by reason of his physical infirmities from succeeding to the properties left by his father. The trial Court answered this question in the negative but the lower Appellate Court has answered it in the affirmative.
12. Mr. Bose, who appears in support of the appeal, has put forward a two-fold contention. In the first place he has argued that the finding of the lower Appellate Court is insufficient to warrant the dismissal of the plaintiff's suit inasmuch as it is not enough, according to Hindu law, to exclude a person from inheritance simply because he is born deaf and dumb; it must further be proved and established as a fact that that infirmity was of an incurable type. In support of this contention Mr. Bose has placed reliance upon the statement of law as contained in D.F. Mulla's Principles of Hindu Law, Edn. 8, Section 98. The second argument of Mr. Bose is that the judgment of the lower Appellate Court is not a proper judgment of reversal in law and the lower Appellate Court has not considered several material points upon which the trial Court based its decision.
13. I may say at once that I am in entire agreement with the view taken by my learned brother on the second contention raised by Mr. Bose. The lower Appellate Court has not considered the entire evidence on the record and he has omitted to advert to certain material things upon which the trial Court placed material reliance. One fact is that Kangali was invested with sacred thread at the proper time and in the usual way and the second thing is that there was a long silence on the part of both defendant 1 and his wife, for which no explanation is forthcoming. In these circumstances therefore, I agree with my learned brother that the case should be sent back for further investigation. On the first question however I am constrained to take a different view from that taken by my learned brother. In my opinion there is no rule of Hindu law which requires that for the purpose of excluding an heir from inheritance it is not only necessary to prove that the defects of the ear or of the speech were congenital but were also incurable. I would first of all refer to the texts of the earliest Smriti writers on this point. The text of Yajnyawalkya, upon which Mitakshara bases his statement of law, is contained in verse 141, Chapter 2 of his book. The verse runs as follows:
An impotent person, an outcaste, and his issue, one lame, a mad man, an idiot, a blind man, and a person afflicted with an incurable disease, as well as others (similarly disqualified) must be maintained; excluding them however from participation.
14. It is to be seen that the text does not expressly mention a deaf or dumb person in the category of excluded heirs. They come however under the residuary clause 'as well as others' according to Mitakshara. The residuary clause is thus interpreted by Vignaneswar:
Under the term 'others' are comprehended one who has entered into an order of devotion (i.e. has become an ascetio) an enemy to his father, a sinner in an inferior degree and a person deaf, dumb or wanting an organ.
15. Here again we notice that Mitakshara does not say that blindness or deafness should be congenital. It is held however by, all the High Courts that these infirmities in order that they might exclude a person from inheritance must be in existence from the date of his birth. This is deduced from the text of Manu which lays down that a person must be born blind and deaf in order that he may be prevented from participating in the share of his ancestral property. The same principle has been held to be applicable to dumbness, and this position has not been challenged before us by the learned advocates on both sides: vide the case in Lala Muddun Gopal Lal v. Mt. Khikhindu Kore (1891) 18 Cal. 341; the case in Vallabhram Shivarayan v. Bai Hariganga (1867) 4 Bom. H.C. 135 and the case in Savitribai v. Bhaubhat Sakharambhat : AIR1927Bom103 . In the last mentioned case however Shah J. expressed his opinion that dumbness must not only be congenital; it must be incurable also. According to him this follows in the first place from the text of Yajnyawalkya where the word 'aohikitsya' (incurable) is used. Shah J. is of opinion that as 'deaf' and 'dumb ' are brought under the word 'adi' ('others') as used in Yajnyawalkya's text, the same characteristic must apply to deafness and dumbness, namely that they should be incurable. He says in the second place that it would be in accordance with the rule that where there are texts of two Smriti-writers on points, as to which one is silent, they must be read as supplementing each other as far as possible. I do not think that the process of reasoning employed by the learned Judge is at all sound.
16. In the first place, the interpretation that the learned Judge has placed upon 'the word 'adi' is in contradiction with that which Vignaneswar himself has put upon this particular word in Yajnyawalkya's text, and I am unable to hold that the interpretation put upon this text by Mitakshara which is the recognized authority throughout India should be ignored. As I have said already, the word ' others ' is interpreted by Mitakshara to mean a variety of persons, namely one who has entered into an order of devotion or is an enemy to his father, etc., and by no process of reasoning it can be said that the word 'adi' must be construed ' suffering from along with the expression ejusdem generis incurable disease ' when none of the persons specifically mentioned by Mitakshara suffers from any disease and much less from an incurable disease. I think that the expression 'afflicted with an incurable disease' connotes a separate group alto-gether and the words 'and others' must be construed as including persons who suffer from similar defects but not necessarily from a disease which is incurable. ' I am also unable to agree with Shah J., that if the text of Manu be taken as supplementing the text of Yajnyawalkya on this point, this conclusion would necessarily follow. As it would be seen presently, Manu mentions specifically the blind and deaf persons who are born so but with regard to neither of them it is said by Manu or by any of the commentators that the defect must be incurable. If we now come to the law that is in force in Bengal,, we find that Jimuta Vahana devotes chapter 5 of his book to the treatment of this subject. In para. 7 he quotes the texts oi Manu as follows:
Impotent persons and outeastes are excluded from a share of the heritage ; and so are persons born blind and deaf ; as well as madmen, idiots, the dumb, and those who have lost a sense. (Manu,. Chap. 9, verse 201.
17. In para. 9 Jimuta Vahana explains that the word 'born' must be connected in construction with the words 'blind and deaf.' This is also the explanation given by Sri Krishna in his Dayakrahma Sangraha. In para. 10 Jimuta Vahana quotes the text of Yajnyawalkya, but his reading is slightly different from that which is adopted by Vignaneswar. The text of Yajnyawalkya is thus quoted in Dayabhaga:
An impotent person, an outcasts, and his issue, one lame, a madman, an idiot, a blind man, and a person afflicted with an incurable disease, must be maintained, excluding them however from., participation.
18. It will be seem from the above that Jimuta Vahana drops the residuary clause altogether and he uses the word ' aohikitsya rogarta ' that is to say 'persons afflicted with incurable disease' in place of 'achikitsyarogadya' which means 'persons suffering from incurable disease as well as others.' In fact it was not necessary for Jimuta Vahana, who relies primarily upon Manu and quotes Yajnyawalkya only as a subsidiary authority, to bring a deaf and dumb person within the residuary clause at all, as these disqualified persons have been specifically mentioned by Manu in his text. In my opinion there is nothing in the texts of Jimuta Vahana or even of the Mitakshara, which goes to support the view that according to Hindu law it must be established that deafness and dumbness-which are proved to be congenital are beyond cure before a person can be excluded from-inheritance. The decisions upon which Sir-D. II. Mulla purports to base his statement of law also, in my opinion, do not support his view and this has been practically conceded by Mr. Bose who appears for the appellant. So far as the case law in Bengal is concerned, one of the earliest pronouncements is to be found in Mohesh Chunder Roy v. Chunder Mohun Roy (1875) 14 Beng. L.R. 273 There it was a case of blindness which was not proved to be congenital. It was held by the learned Judges that blindness which under the Hindu law, as recognized in Bengal, excludes an afflicted person from inheritance refers to congenital blindness and not to loss of sight which has supervened after birth. In course of argument it was argued on the side of the appellant that even though Manu expressly stated that the person must be born blind and deaf, yet a person who became blind afterwards might come under the general description of people deprived of senses (Nirindriya) as used in Manu's text. In reply to that it was said that if the subsequent portion of the text carried the matter beyond what was implied in the previous portion it must be clear that the' person excluded from inheritance must be incurably blind or such who had lost the sense of sight. This particular question, therefore, which arises for decision in this case, was neither raised before nor decided by the learned Judges.
19. In Charu Chunder Pal v. Nabo Sundari Dasi (1891) 18 Cal. 327 which is also referred to by Mulla, the question that arose for decision was as to whether under the Bengal School of Hindu law a widowed daughter who had a son who was dumb at the time when the succession opened out, was entitled to succeed to her mother's stridhan property. Banerjee J. pointed out in that case that this matter did not come within the purview of the texts at all, as the question was not as to whether a dumb son could inherit, but whether the mother who had got a dumb son could be said to be a daughter having no son at the time when the question of succession to the stridhan property of her own mother arose. But at the same time Banerjee J. pointed out that even if it was necessary to decide that question he should feel inclined to answer it in favour of the appellant's contention. This question was also not touched upon in any of the other cases to which reference has been made by Sir D.F. Mulla with the exception of the passage found in Savitribai v. Bhaubhat Sakharambhat : AIR1927Bom103 and there also it was an opinion expressed by Shah J. alone which was not shared by his learned colleague. It may be that some of the Judges who decided the cases used the words 'congenital' and 'in curable' as mere convertible terms and it may be that the Hindu law-givers when they insisted upon the defects being congenital' in order to deprive a man of his right of inheritance had in mind the idea of their being incurable. But nowhere-either in the texts of the Smriti writers or in the discussions of the digest-makers, with which we are primarily concerned, any statement of law is to be found that incurability is also an additional fact which has got to be established from evidence-over and above the fact that the defect was congenital. In fact curability or incurability of the defect has never been considered to be a materfel factor in connexion with this matter. In Gunjeshwr Kunwr v. Durga Prosad Singh (1917) 4 A.I.R. P.C. 146 their Lordships of the Judicial Committee approved of the following statement of law given by Rajkumar Sarbadhikari in his Principles of Hindu Law of Inheritance and wherein he referred to the question of blindness:
Blindness, to cause exclusion from inheritance must be congenital. Mere loss of sight which has supervened after birth is not a ground of disqualification. Incurable blindness, if not congenital, is not such as an affliction as under the Hindu law excludes a person from inheritance.
20. I think the same remarks apply to the case of deafness and dumbness as well. It cannot be disputed for one moment, as was pointed out by their Lordships of the Judicial Committee, that the rule of Hindu law which is relied upon as preventing the natural course of inheritance, ought to be clear and unmistakable. It is also true that a rule of law which deprives an heir of his legal rights, and therefore might work harshly, has got to be construed strictly, but at the same time, if this rule is to be enforced at all and not ignored, the Courts in my opinion cannot but give effect to the plain interpretation of the texts as are contained in the works of the digest-makers who are regarded as authorities in a particular province. I agree for the reasons given above that the case should be sent back to the lower Appellate Court. My learned brother has expressed the opinion that the enquiry by the Court below should be confined to the question as to whether the defect in this particular case was congenital or not, and if it is found to be congenital it must be presumed to be incurable. I do not differ therefore from the order which my learned brother has passed.