1. Bhabesh Chandra Roy Chowdhury, the proprietor of the Barla estate Chota Taraf, died on 9th April 1926. He died childless, survived by his widow, Hembarani. On 20th February 1926, shortly before his death, he executed a will (Ex. AB). He appointed eight persons, Surendra Narayan Sarbadhikari, Tarak Nath Singha, Bhabesh Chandra Sinha, Sushil Chandra Mondal, Harish Chandra Sen, Gopeswara Chakrabarty, Nobin Chandra Chattapadhyay and his wife as executors. In the will he expressed the desire of installing a deity, Sree Sree Iswar Baneswara Shib Thakur, and of dedieating to it specified properties yielding an annual income of about Rs. 6000. He provided that in case he died before installing the deity and dedicating those properties, his wife was to install the deity and to dedicate those properties to the idol by executing an Arpannama. She was to be the first shebait, to be succeeded by his natural son, if he had one or by his adopted son. He also expressed a desire to take a son in adoption, but in case he died without making an adoption, his wife was to adopt. The power that was conferred on his wife was to adopt five sons in succession. His widow, Hembarani alone took out probate and on her death, which occurred on 4th January 1933, three of the other executors, Surendra Narayan Sarbadhikari, Tarak Nath Singha and Sushil Chandra Mondal alias Sushil Chandra Sarkar took out probate. The last mentioned person, to be hereafter called Sushil, is a brother of Hembarani. After Bhabesh Chandra Eoy Chowdhury's death Sushil with his wife lived with his sister Hembarani at the Barla house of the Chota Taraf.
2. After her husband's death Hembarani became a sickly lady. Her principal malady was diabetes. In the first part of April 1929, (end of Chaitra 1336) she went to Calcutta for treatment. She returned to Barla about 20th April. A few days before her return to Barla she had injured her heel at Calcutta. A sore was formed at the injured part. An operation was performed by a local doctor, Dr. Dwarka Nath Mazumdar, on 27th April (14th Bysack) but it was not successful as it was a case of diabetic gangrene. Her leg became swollen and she could not move. After consulting other local doctors the Civil Surgeon of Beerbhoom was ultimately called in. He saw the lady on the morning of 6th May 1930 (23rd Bysack 1337) and expressed the opinion that an immediate amputation of her leg was the only chance of saving her life. On the night of the same day, Sushil and an officer left for Suri with a large amount of money for having the drafts of the deed of adoption and of the arpannama prepared by the pleaders. The evidence is that the drafts were completed late at night and settled next day when stamps far in excess of what were payable were purchased.
3. The adoption took place on 26th Bysack 1337-(9th May 1930), the child adopted being Uma Sankar who was then aged about eight months. He was then the only issue of Hembarani's brother Sushil. On adoption his name was changed to Shiva Sankar Roy Chowdhury. On tha same date she executed the arpannama dedicating the properties selected by her husband, and a tank, called Hemsagar, to the deity, Bhabeswar Shib Thakur. The lady left for Calcutta for treatment on the same night according to one version, or the next day according to another version, where her leg was amputated. She lived for about two and half years. Her death occurred on 4th January 1933. On the date of her death the plaintiff, Bholanath Roy Chowdhury, who is an agnate of Bhabesb took steps to prevent removal of valuable things from the Barla house by posting guards. He gave out that the adoption was invalid and that he was the person entitled to the properties as reversioner. There were proceedings before the Magistrate between him and Suahil. Ultimately on 12th January 1934 he filed the suit. The first three defendants are the three executors who had taken out probate of Bhabesh's will after Hembarani's death, namely Surendra Narayan Sarbadhikary, Tarak Nath Sinha and Sushil Chandra Sarkar. Defendant 4 was Uma Sankar, the adopted child in his personal capacity and as alleged shebait of the deity. His natural mother Lakshimony was ultimately appointed his guardian ad litem. In the plaint it was alleged that though a deed of adoption had been executed there was in fact no adoption, and even if there was in fact the adoption of Uma Sankar by Hembarani, that adoption was invalid in law inasmuch as Uma Sankar was born deaf and dumb and was an idiot. The plaintiff stated that Bhabesh was governed by the Mitakshara School of Hindu law, and according to that law the plaintiff as the nearest male agnate of Bhabesh had succeeded to his estate on Hembarani's death and had become the shebait of the idol. He made an alternative case that if it be held that Bhabesh was governed by the Bengal School of Hindu law then Bhabesh's maternal uncle's son, Gopinath alias Gopeswara Roy Mondal, became the owner of the secular properties left by Bhabesh and the shebait of the idol. He further alleged that the said Gopinath had conveyed to him his rights in the secular properties by a kobala dated 14th Falgoon 1339 B.S. (26th February 1933) and had executed in his favour an irrevocable deed of agreement on 15th Falgoon 1339 B.S. (27th February 1933) for the benefit of the idol by which he, the plaintiff, was made 'the malik of the deity together with all the endowed properties.' On the hypothesis that the Mitakshara School was applicable he has sued for possession in his own right and on the view that the Dayabhaga School of Hindu law was applicable, he has sued for possession on the strength of those deeds. Gopinath alias Gopeswara Roy Mondal and his son are pro forma defendants 5 and 6. The other pro forma defendants are the other executors named in Bhabesh's will who had not taken out probate.
4. Two sets of written statements have been filed, one by defendants 1 and 3 (Sushil) and the other by Lakshimony as guardian ad litem of defendant 4, Uma Sankar. They are on similar lines. It is therein stated inter alia that the adoption was in fact made on 9th May 1930 with the due ceremony, and that Uma Sankar was not born deaf and dumb. His power of hearing and his speech had no doubt become a little impaired as a result of a serious illness he had in his second year but he could still even then speak and hear, the defects being curable and besides he was a highly intelligent boy. It was pleaded alternatively that even if Uma Sankar was congenitally deaf and dumb, those defects could not bar him from the inheritance, and that the plaintiff could not claim the right of shebaitship as he had not been appointed shebait by the executors in terms of Bhabesh's will. In the written statements it was admitted that Bhabesh was governed by the Mitakshara School of Hindu law but the statement made by the plaintiff in his plaint that he was the nearest male agnate of Bhabesh was denied. The conveyance and the agreement executed by Gopinath in favour of the plaintiff was challenged as collusive and fraudulent.
5. The learned Subordinate Judge by his judgment and decree dated 28th July 1937 has decreed the suit in part. He found that the adoption had taken place in fact, the essential ceremony, namely secular giving and taking of the child having been performed. He, however, held that the child was congenitally a deaf mute and so the adoption was invalid in law. He further held that the plaintiff was the nearest male agnate of Bhabesh. He held that qua adopted son of Bhabesh Uma Sankar could not claim the shebaiti, but that he had become the she-bait by reason of his appointment to that office by Hembarani in terms of para. 14 of Bhabesh's will. On these findings and conclusions he gave the plaintiff a decree for possession of most of the secular properties a claimed in the suit but dismissed his suit in respect of the debutter properties and of some secular properties which stood in Sushil's name. Uma Sankar represented by his natural mother as guardian ad litem and defendants 1 and 3 have filed Appeal No. 298 of 1937 against the first part of the decree which concerns the secular properties and the plaintiff has filed Appeal No. 24 of 1938 against the last part of the decree which concerns the debutter properties and those items of secular properties which stand in Sushil's name. During the pendency of the appeals, Uma Sankar died on 5th July 1939 and after a contested proceeding his natural father Sushil, has been substituted in his place as his legal representative. The precise effect of the order for substitution is one of the questions in the appeals, which will be dealt with in Appeal No. 24 of 1938. Before us the plaintiff does not attack the finding of the learned Subordinate Judge relating to the facturn of adoption and the defendants do not challenge the fact of the plaintiff being the nearest male agnate of Bhabesb.
6. The first question of importance is whether the adoption is valid in law. That question depends upon two further questions as : to whether (a) the child, Uma Sankar, was congenitally deaf and dumb and (b) if he was so, whether he was eligible for adoption, it being now admitted by the plaintiff that he was not an idiot. We have already stated that the contesting defendants had stated in their written statements that Uma Sankar was not deaf or dumb. The case they made there is that he had developed little defects in hearing and speech as a result of his illness at the age of two and those defects according to medical opinion were curable. This was the statement in the written statements of the natural father and of the natural mother as guardian ad litem of the child. At a very early stage of the suit the plaintiff required the production of the boy in Court but on an opposition by the defendants no order was passed. As para. 21 of the written statements did not give particulars of the illness of Uma Sankar which according to the defendants had slightly affected his hearing and speech the plaintiff applied for examination of Suahil who was then present in Court under Order 10, Rule 2, Civil P.C., just before the hearing commenced. On that Sushil filed a petition in which he stated that the child had been attacked with typhoid at the age of two years. On being asked for further particulars he stated in another petition that the illness was in Aswin and Kartic 1338 B.S. (October-November 1931), it had lasted for ' five weeks and the child was medically treated at Barla. On the basis of those statements the hearing proceeded without the preliminary examination of the parties under Order 10, Rule 2. The plaintiff asserted that the child had never typhoid. He, however, admitted that in the middle of Aswin 1338 he was ill, but the malady was slight and he was cured in four or five days' time. In a later part of our judgment we will deal with the nature of the child's illness which admittedly began in Aswin 1338 B.S.
7. Before the child was produced in Court the defendants examined a number of witnesses/who stated that even then the boy could hear and speak. He had uttered mantras at the Sradh of Hembarani, could follow music and could utter simple words. But when the child was produced in Court in 1937 for examination by the medical experts, Dr. Satya-ban Roy appearing for the plaintiff and Dr. U.N. Dass for the defendants, it became quite clear that the boy was then absolutely deaf and dumb. Dr. U.N. Dass expressed the further opinion that the boy was absolutely deaf and dumb in 1933 and could not have uttered Mantras or words at the time of Hembarani's sradh which was per formed in that year. Thereafter Sushil and his wife deposed. They admitted that the boy was then deaf and dumb and had become so some years before. The question therefore is whether the boy was congenitally deaf and dumb or whether he had acquired these defects. We will first deal with the evidence of the two medical experts, Dr. Satyaban Roy and Dr. U.N. Dass and the relevant theories of medical science. Both those doctors are eminent doctors of Calcutta and are experts of ear, nose and throat diseases. For the theories of medical science we would refer to Dr. Philip Kerrison's treatise 'On Diseases of the Ear' (Edn. 4), as both Dr. Roy and Dr. Dass are agreed that that book is an authority on the subject.
8. The medical theory is that speech is the result of association. If a person is born deaf he would be dumb also. If a child becomes deaf as a result of disease or poison before he had acquired speaking habit, say at the age of two years or so, he would also become dumb. If, however, deafness is acquired after the child had formed the speaking habit, he would not become dumb. Except in that case and in those cases where the organs of speech or the speech centre in the brain only are destroyed by diseases or accident or where a child is born with defective organs of speech only or with defective brain, as in the case of idiots, dumbness goes with deafness, the former being the result, the latter being the cause. These cases aw called deamutism in medical science. Both Dr. Roy and Dr. Dass are of opinion that Uma Sankar was a deaf-mute.
9. The next point on which the two experts are agreed is that in congenital deaf mutism some sense of hearing generally remains but in the case of acquired deaf-mutism the deafness is complete. This theory has been deduced by examining a very large number of cases of deaf-mutes. Both of them are agreed that there may be exceptions to this general rule. If some sense of hearing is left, or as is put by Dr. Roy, there is 'an island of hearing in a sea of silence' in a subject the probability would be that it is a case of congenital deafness, and if there be no history of any disease, which produces deafness, the probability is very high - it would almost amount to a certainty that the subject was congenitally deaf. This is the positive evidence given by Dr. S. Roy and Dr. U.N. Dass's opinion as expressed in his re-examination is to the same effect. If, however, there had been any difference of opinion between the two experts on this point or points relating to medical science we would have preferred the opinion of Dr. S. Roy, He had better qualifications as a specialist on the subject, had more experience, was the head of the department of eye, ear and nose of the premier hospital in Bengal, namely Calcutta Medical College Hospital which notwithstanding what Dr. Dass has said, is a first grade hospital in all its departments, which are managed by physicians and surgeons who are much more qualified and have greater reputation than physicians and surgeons in charge of similar departments of the Campbell Medical School Hospital, which except in cases of infectious diseases, like cholera and small pox, is a second grade hospital.
10. In the treatise dealing with diseases of the ear, various tests for ascertaining the power of hearing of a subject are mentioned, but both the experts are agreed that the vestibular test (also called the Caloric test) is the most satisfactory and unfailing test. Both the experts applied that test to Uma Sankar, but with opposite results. We will deal with the results said to have been found by them in the child later on. At present, we would state what that test is, and what is the theory behind it. A dumb person cannot make himself intelligible by speech if he has heard a sound. The effect e of sound on hearing must therefore be observed in other outward manifestations, that is from the reaction of sound on the members of his body. The crudest test is to observe if a subject turns his head towards the source of the sound, when it is made at his back and at a short distance from him or by holding a tuning fork which has the effect of magnifying sound, near his ear. In our judgment these tests cannot be classed as scientific tests. We do not therefore attach much weight to Dr. Dass's observations when he applied those tests. Nor do we attach any importance to the bone conduction test which was applied by Dr. Dass. As those tests were not applied by Dr. S. Roy and as both had applied the vestibular test and both of them admitted that that test is the best we must proceed on the results of vestibular test obtained in this case. The 'Rotation' test described in Kerrison's book at pp. 284 to 287 would have been a good guide but neither Dr. Roy nor Dr. Dass applied that test to Uma Sankar.
11. The ear is divided into three parts - the outer ear, the mid-ear and the inner ear, called the labyrinth. The auditory organ is in the inner ear. The inner ear consists of (1) the cochlea, which is the auditory organ, (2) the vestibule and (3) three semi-circular canals or ducts. All the three are parts of the same system and occupy a total space of less than 1/10th of an inch. The last two are centres of body equilibrium. In a normal person or a person who has some sense of hearing still left the sound waves affect the cochlea and the vestibule at the same time with the result that he hears and his body equilibrium is also at the same time disturbed. That disturbance is indicated by physical disturbance, that is by movements of some members of his body. For instance in the case of a person with normal hearing a sudden sound of some intensity immediately produces a jerk in his body. If the cochlea is normal or not totally destroyed the vestibule retains the power of sensation. The basis of the vestibular test consists in exciting by artificial means the vestibule and the ducts. If the exciting cause produces physical effects the vestibule and the ducts can be taken to be not entirely damaged and the necessary consequence is that the cochlea can be taken to be still functioning. That is the theory as we understand of the vestibular test. The test consists of slowly irrigating the outer ear with water which is some degrees below or above blood heat. Observations show that if the labyrinth had been totally destroyed there would be no nystagmus (movement of the eye ball). This is called the negative result but if the labyrinth had not been totally destroyed, that is, if there is some sense of hearing still left in the subject, there would be nystagmus (movement of the eye ball) in the direction away from the ear in which water is poured in when the water is some degrees below blood heat and towards that ear when the water is some degrees above blood heat. This is called positive result. Dr. Kerrison states at p. 300 from the results of his observations that in some cases nystagmus is produced almost immediately, that is when the ear is irrigated for ten seconds or 30, but in some cases nystagmus may occur even after the ear had been irrigated continuously for about three minutes or so.
12. Both Dr. Roy and Dr. Dass had seen the boy at Calcutta at the instance of the defendants before they examined him in Court. Dr. Roy was consulted about the end of May 1936. He was asked whether the boy could, be cured. His answer was in the negative. The boy was taken twice to Dr. Dass at Calcutta. The first time in November 1936 and the second time in March 1937, shortly after Dr. Roy had examined the boy in Court and had deposed for the plaintiff. Those visits to leading doctors of Calcutta were after the suit had been filed, in which the important issue was whether the boy was congenitally deaf and dumb or not. In spite of Sushil's denial the purpose for which he went to Calcutta to Dr. Dass with the boy was to ascertain Dr. Dass's opinion as to whether the case was of congenital deafness. Dr. Dass stated in his deposition that as a result of his first examination at Calcutta he had only a suspicion that the case was of acquired deaf-mutes. His second examination at Calcutta confirmed his suspicion and he expressed the definite opinion that the case was of acquired deaf-mutism. At the time when he was consulted at Calcutta Dr. Benoy who had accompanied the party gave the history of the illness of the boy. He wrote what Dr. Benoy had said in the history sheet in the presence of Sushil. He also noted in the history sheet the results of his examination. The defendants did not call Dr. Dass to produce the history sheet. It is an important document and has not been produced by the defendants. It is however quite clear for the evidence that Dr. Dass was told by Dr. Benoy that the boy had typhoid and that may have influenced Dr. Dass's final opinion.
13. Dr. Roy examined the boy in Court in March 1937, not in the court-room but in g the Judge's chambers in the presence of the parties and their lawyers. He then deposed in Court. He stated that the veatibular test had produced positive results. No suggestion was made to him in cross examination on this part of his evidence. None can challenge his honesty, nor has it been challenged before us. Dr. Dass examined the boy in May 1937 in Court and in the presence of the Judge. He found negative results when he applied the vestibular test. The learned Judge has made his own notes about the examination. Those notes are very important. They are recorded at the top of page 548 of vol. I of the paper book. The water syringed into the ear was of 770(F), that was about 20 degrees below blood heat and the irrigation of each ear was for one minute only. No nystagmus was produced during that time but the boy only blinked. Having regard to what Dr. Kerrison has observed at page 300 of his book the experiment was not carried for a sufficient length of time. Dr. Dass who was an expert and was acquainted with Dr. Kerrison's book ought to have continued the irrigation for at least three minutes. We cannot therefore draw an inference in the favour of acquired deaf-mutism simply because the vestibular test as applied by Dr. Dass did not produce positive result in the short interval of one minute. Dr. Satyaban Roy found positive re-action and we must go upon his evidence. The probability would thus be in favour of congenital deaf-mutism and that probability would be increased if the story of typhoid with the complications as set up by the defendants be found to be untrue.
14. In support of his case that the child was only slightly indisposed in Aswin 1338 and was cured after a few days the plaintiff has examined two doctors, who admittedly treated him at that time - Dr. Jogendra Narayan ft Mozumdar and Dr. Bhujanga Bhusan Sar-kar. Both of them were the family physicians of Barla Chota Taraf. The former used to be paid fees but the latter only an annual retainer of Rs. 50 plus the costs of medicines he supplied from his dispensary. Both the doctors resided at the village Kuramgram which is about three miles from Barla. Dr. Bhujanga had his dispensary at Barla. He used to come to Barla every day and stay the whole day at that village, taking his midday meal at the Barla Bara Taraf house. He used to go at night to his village Kuramgram. The defendants have nothing to say against Dr. Jogendra but they attack Dr. Bhujanga as being a partisan witness.
15. Dr. Jogendra's evidence is that on one day only in Aswin 1338 he either saw the child for some minor ailment or sent medicine on receiving a report and the child was thereafter cured. He produced his account book and from it it appears that he sent medicine only on 12th Aswin 1338 for the child. (Exhibit 22 (d) not printed.) The case of both sides is, the boy was apparently cured but that a few days later the boy again became ill and this time Dr. Bhujanga was called in. Dr. Bhujanga's evidence is that he treated the child for three or four days only in Aswin 1338, when he was cured. The child had never typhoid in his life and neither Dr. Akinchanan nor Dr. Benoy had ever treated the child or any member of Barla Chota Taraf. Dr. Bhujanga produced his day book and accounts book of the year 1338 relating to supply of medicines to the child and other patients of his. They are exhibited but have not been printed. The defendants do not challenge those books. They show that he supplied medicine for the child on 18th, 19th and 20th Aswin 1338. There are no other entries in Aswin or Kartic. He deposed on two other points, namely, on the question of adoption and on the question as to whether the child was deaf and dumb ever since his birth. On those points his evidence is that he did not see the adoption ceremony or had heard that the child had been adopted. He admitted that at that time Hembarani was very ill and he was in almost constant attendance at the Barla house. On the morning of the day of adoption, he dressed Hembarani and remained at the Barla house up to about 10 A.M. or so, when he left to attend his dispensary and to take his meals. He was away up to about 2 P. M. when he came back and was asked by Sushil to sign the deed of adoption as an attesting witness at the cutchery house and he signed it on trust, but he did not see the adoption ceremony nor did he hear that the child had been adopted on that day. He further deposed that the child was deaf and dumb from birth. He had treated him when he was three or four months old, in Kartic 1336. At that time the boy did not respond to sounds and there was a rumour that 'the boy was deaf and dumb. When the child was eight, nine or ten months old Hembarani once asked him to examine the child to find out if he was deaf and dumb. This was about a month before she left for Calcutta to get her leg amputated. On those points we do not consider his evidence to be improbable or false. It is quite clear that adoption was arranged in a hurry.
16. The Civil Surgeon had given his opinion on 23rd Bysak 1337, that Hembarani's condition was serious and only an immediate amputation could possibly save her life. The evidence is that on hearing the opinion of the Civil Surgeon Hembarani became, as was natural, extremely nervous and desired to perform her husband's wishes before she left for Calcutta. Those wishes had been expressed in his will. They were the adoption of a child by her and the installation of a deity and dedication of certain properties to it. The idol had been installed before but properties had not been dedicated up to that time. We find that on the same day the Civil Surgeon gave his opinion, her brother Sushil and her khajanchi, Bholanath, left for Suri and had the drafts of the adoption deed and of the arpannama prepared late at night. Next day the drafts were settled by a senior pleader and the party came back to Barla by a motor car. Such was the hurry. In the haste the will was left behind and that was fetched with great expedition for the purpose of supplying the schedule to the arpannama. In those circumstances the ceremony of adoption would not be a big affair, for there was no time to arrange in a style which would be befitting the occasion. In fact the learned Subordinate Judge has found that there was no religious ceremony even. A religious ceremony is not essential in the case of Sudras, to which the parties belong, but it is usually performed at the time of adoption in a rich family. The finding is that there was only secular giving and taking of the child. That would be performed in the inner apartment and would take a few minutes to complete. We cannot therefore say that Dr. Bhujanga was lying when he said that he did not see with his own eyes the adoption, nor did he hear of it. The inmates of the house were so very anxious for Hembarani and must have been preoccupied with the arrangements for her immediate removal to Calcutta.
17. We do not also feel the force of comment that Hembarani would not have adopted the child if she had suspicion about his faculties. She desired to adopt a son of her brother Sushil, and the evidence is that as no son had been born to Sushil she waited for five years. Probably but for her condition, she would have waited for the second son of Sushil, for though the adoption of an eldest or only son is not illegal, there is a sentimental feeling in Bengal against such adoption. The natural parents, unless very poor, do not like, especially the mother, to part with the first born or the only son and the adopter also tries to avoid the adoption of the eldest or the only child, when the natural father or mother is his or her near relation. At that time she apprehended death, and it was with her then a choice between no adoption and adoption of her brother's only son. According to Dr. Bhujanga's evidence, the child could not hear or speak then, that there was a rumour that the boy was dumb. There was suspicion on the part of Hembarani that the child may turn out to be dumb but there would also be optimism on her part and Hembarani and other members of the family may have thought the case to be a delayed case and that the child may later on begin to speak. Such delayed cases are not rare. Even if the statements of the witnesses of the defendants that the child could then indulge in baby prattle be believed, that fact would not necessarily exclude the possibility of the child being a deaf-mute (see Kerrison, p. 576). We do not, however, believe those witnesses and prefer Dr. Bhujanga's evidence on the point. (After considering the evidence their Lordships proceeded.) On this state of the evidence, we do not feel justified in reversing the finding of the learned Subordinate Judge to the effect that the child had only slight illness for a few days in Aswin 1338 and that he was not attacked with typhoid or had any prolonged illness.
18. Immediately after Hembarani's death there was trouble. Immediately after the dead body was removed to the burning ground, the plaintiff placed guards to prevent secretion of valuables from the house by Sushil and his agents. This the plaintiff has admitted. But Sushil's allegation is that he and some officers were locked up by the plaintiff. The evidence of Bhola Nath Roy (accountant of Chota Taraf) discloses that Sushil laid a complaint before the Magistrate against the plaintiff for wrongful confinement. The plaintiff also laid counter charges against Sushil. The Sub-Divisional Magistrate of Bampurhat who was asked by the Magistrate to enquire and report and to take necessary steps first ordered an inventory, which was made. He also took statements from the plaintiff and Sushil. He embodied the statements in his report to the Magistrate dated 29th January 1933 (Ex. K. 11.46 of the paper book of Appeal No. 24 of 1938). In his report he says that the Bara Taraf (meaning the plaintiff) stated that the child (Uina Sankar) could not inherit as he was deaf and dumb. The Chota Taraf (meaning Sushil) stated that the child was ff not deaf and it was premature to say that he was dumb as he was then only four years old. That statement implied that the boy had no defect, either natural or acquired through illness and the statement was that his was a case of delayed development. If the case that the boy was gradually losing: his power of hearing and speech owing to an attack of typhoid were true, as is now the case of the defendants, that case would have been put to the Sub-Divisional Magistrate and the allegation of the plaintiff would have been met by Sushil not in that way but by saying that as the boy was not I deaf or dumb by birth or even at the time of adoption but was becoming so gradually as a result of typhoid the boy could not be excluded from inheritance. Our finding is that the child was not attacked with typhoid in Aswin or Kartik 1338. In this view of the matter, it is not necessary to discuss the question as to whether a patient can survive an attack of typhoid with meningitis and whether the loss of hearing due to typhoid is permanent or passes off with the gathering of strength. On these points Dr. Kaligati Banerjee, examined by the plaintiff has deposed and his evidence is supported by high 9 medical authorities (Tice on Medical Practice, Vol. 4, pp, 548 and 549, 552 and 561; Osier, Principles and Practice of Medicine, page 26, Edn. 10). For the reasons given above, we hold in agreement with the learned Subordinate Judge that the child Uma Sankar was born deaf and dumb. The plaintiff's advocate admits before us that he was not an idiot.
19. The question, therefore, is whether a child who is congenitally deaf and dumb but who is not an idiot is eligible for adoption. The fundamental principle of Hindu law is that a boy to be eligible for adoption must be one who is able to fulfil the religious obligations enjoined on a son by the Shastras. One of the principal obligations of a son is to deliver his dead father from the region called put, the purgatory, the region of the nether world where according to Hindu theology the soul of a dead man goes for purification. This the son does by performing his father's sradh. The essential ceremony in sradh is the offering of pindas with the recitation of mantras. A person who is ineligible to utter the sradh mantras or is unable to utter them owing to physical defects cannot accordingly perform the essential shastrie duties. It would follow that a person who is ineligible to utter those mantras or unable to do so cannot be eligible for adoption. In Amarendra Man Singh v. Sanatan Singh Sir George Lowndes in deliver, ing the judgment of the Judicial Committee emphasised the spiritual aspect of adoption and observed that according to the Hindu doctrine of adoption devolution of property, though recognised as an inherent right of the son, is altogether a secondary consideration. The Hindu jurists consider exclusion from inheritance and exclusion from the privilege of uttering mantras at sradhs to be inter-dependent. Raghunandan who is considered to be a high authority in Bengal on matters involving religious ceremonials says in his Suddhi Tatwa that:
Eunuchs and outcastes persons born blind or deaf, madman, idiots, the dumb and such as have lost the use of limb have no right to offer pandas
and the reason he gives is that they, according to the text of Manu, are excluded from inheritance. (Astabingsati Tatwa by Raghunandan edited by Pundit Shyama Kanta Vidyabhusan, p. 397). The eligibility for adoption must, therefore, be tested by the rules of exclusion from inheritance. We cannot accordingly accept the view of Mr. Golap Chandra Sarkar Sastri (Hindu Law on Adoption, p. 358, Edn. 2) to the effect that a s person who by reason of physical defects is disqualified from inheriting can be validly adopted, though by adoption he would not inherit his adoptive father's property. In our view, such a person cannot be validly adopted. In fact it is conceded by both the learned advocates appearing for the parties that the test for judging the validity of the adoption would be whether a person born deaf and dumb but who is not an idiot but has sufficient intelligence is disqualified from inheriting. The learned advocate for the appellant has advanced his argument in the following manner. In modern times, a deafly mute, who is not an idiot but is sufficiently intelligent, is teachable. The modern methods of teaching such deaf-mutes have reached the stage of perfection. The reason underlying his exclusion from inheritance has accordingly disappeared in modern times. We should not therefore go by the strict letter of the texts of Hindu sages and commentators, especially when British Courts in India, as also the Judicial Committee of the Privy Council, have in other cases of physical defects mollified those texts. We may at once say that we cannot accept his contention. We hold that a deaf-mute, who is not an idiot, would not have the right to inherit, Manu's text is as follows:
Eunuchs and outcastes, persona born blind or deaf, madman, idiots, the dumb and such as have lost the use of a limb are excluded from a share of the heritage: Manu Chap. 9 verse 201.
20. He places idiots in a class by itself and deaf and dumb persons under separate heads. Jajnyavalka's text is as follows:
An impotent person, an outcaste and his issue, one lame, a madman, an idiot, a blind man and a person affected with incurable disease as well as others (similarly disqualified) must be maintained; excluding them, however from participation.
21. The born deaf-mute would under this text come within the residuary class-persons who are afflicted with incurable disease. If this text had stood alone without the comment of his chief commentator, Vijnaneswara, it would have been possible to contend that a deaf-mute would not come within the exclusion if he could be cured. On that point however, there is a difference of judicial opinion even in a recent decision of this Court, In Ankul Chandra v. Surendra Neth : AIR1939Cal451 Ghosh J. held that in order that a person may be excluded from inheritance deafness and dumbness must not only be congenital but also incurable. Mukherjea J., however, held that it is sufficient if those physical defects are congenital. It is not necessary to decide which of these views is correct, for it is proved in this case that the defect of Uma Sankar was incurable. That was the opinion of both Dr. Roy and Dr. Dass. But curability is one thing and teach ability is another. A deaf-mute may be made by teaching to follow words spoken by others by watching their lip movements, and he may be taught to utter articulate words by giving him a special and technical course of training. The methods employed have been summarised in chap. 27 of Dr. Kerrison's book. At the concluding portion of chap. 26, however, Dr. Kerrison observes that in vast majority of cases deaf-mutism is not amenable to medical treatment. These observations imply that though a deaf-mute cannot be cured, he can be successfully taught. Vijnaneswara clarifies the concluding general words of the text of Yajnyavalka by referring to the text of Vasishtha, Narada and Manu. A person born deaf is expressly mentioned by him as a disqualified person. Jimutvahana in the first instance notices Manu's text. That text is taken by him to be the principal text. His comment is that the word 'born' qualifies both the words 'blind' and 'deaf.' He then cites Yajnyavalka's text (Dayabhaga chap. V). Nanda Pandit in his Dattaka Mimansa by implication says that persons who are excluded from inheritance such as out-castes, etc., cannot be adoped (Section 11 verse 62). He does not mention congenitally deaf and dumb person by name but only quotes in an abbreviated form the text of Yajnavalkya dealing with exclusion from inheritance.
22. We must go by the positive and unambiguous texts of the commentators, Vijnaneswara, if Bhabesh be taken to have been governed by the Mitakshara School and of Jimutvahana, if he was governed by the Bengal School of Hindu law. The acceptance of the contention of the appellants that a person who is a deaf-mute would be excluded from inheritance only if he was an idiot, and a deaf-mute who is not an idiot would not be excluded, on the reason that the former cannot be taught and the latter can be, would lead to a substantial departure from the commentaries of both Vijnaneswara and Jimutvahana, for both of them put idiots into one class and deaf and dumb persons into another separate class. With regard to the last mentioned persons they hint no distinction between teachables and unteachables. So far as modern authorities are concerned they are unanimous in holding that a person disqualified from inheriting, such as a person born deaf and dumb, is not eligible for adoption : Sutherland's synopsis p. 665; Shyama Sarkar's Vyavastha Darpan, Vol. 1, p. 339, comment (i) on Vyavastha No. 349, Edn. 3. Those authorities are cited with approval by Mayne in his Hindu Law, Edn. 10, p. 244, foot-note (v). We are not impressed by the line of argument adopted by the learned Judges in 43 Mad. 43 and cannot hold that it is open to a Court to say that a definite rule of exclusion laid down either in the Mitakshara or the Dayabhaga, which had in the past been recognised by Courts of this country established in the British regime as being rules of law and not mere moral recommendations, is now, at the present day, obsolete. That is not permissible for a Court of law; it is solely within the province of the Legislature. The decision given in Surayya v. Subbamma ('20) 7 A.I.R. 1920 Mad. 361 was expressly overruled by a Full Bench of the same Court, Pudiava Nadan v. Pavanasa Nadan ('23) 10 A.I.R. 1923 Mad. 215. We fully agree with the observations of Schwabe C.J., made at p. 962:
A law does not cease to be operative because it is out of keeping with the times. A law does not become obsolete because it is an anachronism or because it is antiquated or because the reason why it originally became law, would be no reason for the introduction of such a law at the present time. To hold the contrary, in my judgment, would be an entire misunderstanding of the meaning of the legal maxim 'cessat ratio cessat lex.... If authority were required for this proposition, it is to be found clearly stated by their Lordships of the Privy Council in Kishore Singh v. Mt. Gahenabai ('19) 6 A.I.R. 1919 P.C. 100 at p. 574 in the following words:
Their Lordships therefore are of opinion that the principle embodied in the expression cessat ratio cessat lex does not apply where custom outlives the condition of things which gave it birth.
23. Congenital deafness and dumbness have even in recent cases been held to be a good ground for exclusion from inheritance : Savitri Bai v. Bhaubhat Sakharambhat : AIR1927Bom103 and Ankul Chandra v. Surendra Nath : AIR1939Cal451 . It is no doubt a sound rule that a rule of law which deprives an heir of his legal rights, must be construed strictly. Where there is room for interpretation of a text of Hindu law dealing with exclusion from inheritance an interpretation which would not have the effect of exclusion ought to be preferred. But where the rule is clear with regard to a particular class of person there cannot, in our judgment, be any scope for the so-called doctrine of 'mollification.' Leaving aside the question of curability, which does not arise in the case before us, the texts both of the Mitakshara and of the Dayabhaga are clear, namely, that a person born deaf (and so dumb as a necessary consequence) cannot inherit. Such a person cannot therefore be validly adopted. We accordingly hold that Uma Sankar did not become a son of Bhabesh. If Bhabesh was governed by the Mitakshara School and we hold that he was, the plaintiff would succeed to his estate, the secular properties, as it is admitted before us that he was Bhabesh's nearest male agnate at Hembarani's death. If Bhabesh was governed by the Dayabhaga, it is admitted before us that his maternal uncle's son Gopeswara alias Gopinath Roy Mandal would be the nearest reversioner. He has executed a conveyance (Ex. AP II 162) on 2nd February 1933, in favour of the plaintiff by which he has conveyed all his rights to the secular properties left by Bhabesh. Gopinoth the vendor, though a party to the suit has not challenged the deed. On the principle in Lala Achal Ram v. Raja Kazim husain Khan ('05) 27 All. 271, it is not open to the contesting defendants to challenge the conveyance. We accordingly hold that the plaintiff is entitled to the secular properties of Bhabesh. This appeal is accordingly dismissed with coats to the plaintiff-respondent.
24. F.A. No. 24 of 1938. - Two points arise in this appeal: (i) Whether the properties mentioned in Para. 25 of the written state, ment of defendants 1 and 3 appertain to the estate of Bhabesh and (ii) Whether the plaintiff is the shebait of the idol, Sree Sree Baneswar Shib Linga.
25. The learned Subordinate Judge has held b those properties to be the personal properties of Sushil. On the second point he has held that though Uma Sankar was not validly adopted, he is the shebait, having been appointed by Hembarani under and in accordance with the power conferred on her by para. 14 of her husband's will, (i) On the evidence as it stands we cannot accept the plaintiff's contention on the first point. The title deeds of those properties stand in Sushil's name. Prima facie he is the owner and the onus is on the plaintiff to displace that presumption. The evidence on the record is not of such a nature as would enable us to revise the finding of the learned Subordinate Judge on this point, (ii) As Uma Sankar's adoption has been found to be invalid in law, he cannot become a shebait on Hembarani's death by reason of the provisions of Paras. 1 and 4 of Bhabesh's will. In the arpannama Ex. A (II-10) by which Hembarani dedicated the properties to the deity in accordance with the wishes of her husband she stated that in accordance with the provisions of her husband's will she will be the shebait during her lifetime and after her death her 'adopted son together with sons, grandsons etc.,' will be the shebait. She lays down line of shebaits in terms of Para. 4 of the will-a heritable she-baitship in accordance with that paragraph. No power as has been conferred upon her by para. 14 of the will was therefore exercised. Uma Sankar was to become the next shebait after her only in his character as an adopted son, not as persona designata. His appointment as shebait under Para. 14 of the will cannot be justified for many reasons. He had not the qualification of being appointed shebait under the provisions of Para. 14. That paragraph provides that the shebait to be appointed must be a competent man, 'a proper religiously minded and self-denying, grihasta (householder and not sannyasi) spiritualist.' A child about eight months old cannot be said to have those qualifications. Besides the occasion for exercising the power had not arisen, for the power was to come into existence only if a natural born son or the adopted son were to die during Hembarani's lifetime. The existence of a natural born son or of a validly adopted son followed by the death of the natural born or the adopted son during Hembarani's lifetime was a sine qua non. Uma Sankar did not therefore become shebait after Hembarani's death.
26. The next question is whether the plaintiff is the shebait. The founder of the endowment must be taken to be Bhabesh and not Hembarani. The founder's heir therefore would become the shebait in default of appointment of a shebait in terms of Para. 14 of the will. If Bhabesh was govern, ed by the Mitakshara School of Hindu law, the plaintiff would be his heir and so would be the shebait. If, however, he was governed by the Bengal School of Hindu law, Gopinath Roy Mandal, Bhabesh's maternal uncle's son, would be the heir and so the shebait. The deed of ' irrevocable agreement' Ex. AF (1)(II, 169) executed by Gopinath in favour of the plaintiff would not have conferred the right of shebaitship on the plaintiff, for that document is void in law. The transfer of the shebaiti right or of the idol with the endowed property regarded as a transaction is bad in law : Sree Sree Iswar Lakshi Durga Har Tatneswara v. Surendra Nath Sarkar ('41) 45 C.W.N. 665. If, however, the document be construed as one making the plaintiff agent of Gopinath in the matter of the management of the worship and of the endowed properties, the plaintiff would have no right, to sue in his own name for possession of the debutter properties on the strength of this document.
27. While these appeals were pending Uma Sankar died. On that the plaintiff made an application in First Appeal No. 298 of 1937, in which Uma Sankar along with defendants 1 and 3 were the appellants to the effect that that appeal could not be further proceeded with as in reality Uma Sankar was the only appellant, and on the footing that Uma Sankar had been validly adopted he, the plaintiff, was Uma Sankar's legal representative. His claim to be the legal representative of Uma Sankar was on the footing that Bhabesh, and accordingly Uma Sankar, was governed by the Mitakahara School of Hindu law. The grounds of that application were that the appeal could not proceed as the respondent had become the real appellant. Sushil made an application for substituting himself as the legal representative of Uma Sankar. His case was that if the adoption was valid be had become in law the maternal uncle of Sushil and so his legal representative, for according to him Uma Sankar was governed by the Bengal School. As the point was important this Court directed the learned Subordinate Judge to take evidence as to which School of Hindu law governed Uma Sankar. He reported his findings and this Court held by its order dated 4th June 1940 (to which both of us were parties) that Sushil was the legal representative of Uma Sankar on the basis that the Bengal School of Hindu law was applicable.
28. So far as these appeals are concerned it must be held that the question of legal representative has been conclusively determined. When the matter of substitution was under our consideration, an argument was advanced by the plaintiff's advocate that by reason of the admission made by Sushil and by Uma Sankar in their written statements that Bhabesh was governed by the Mitakshara School, Sushil could not turn round then and say that he was governed by the Bengal School. We overruled that contention holding that Sushil was not precluded from leading such evidence as he may require to establish his character of legal representative but at the same time we reserved the point as to whether he would be able to plead against the written statement of Uma Sankar after he got himself substituted as Uma Sankar's legal representative. That question we have now to decide. We hold that Sushil as the legal representative of Uma Sankar is bound to adopt the written statement of the latter (Order 22, Rule 4, Sub-rule (2), Civil P.C), and that he cannot at the appellate stage raise a new case, a case inconsistent with the case of Uma Sankar as made in his written statement. In the lower Court all the parties, the plaintiff and all the contesting defendants were agreed that Bhabesh was governed by the Mitakshara School of Hindu law. On the state of the pleadings of the parties, that is on the plaint and the admission in the written statements, we hold that Bhabesh was governed by the Mitakshara School. The plaintiff is therefore in his own right, the heir of Bhabesh and the shebait of the idola. He is entitled to recover possession of the debutter properties from the defendants.
29. This appeal accordingly succeeds in part. The plaintiff will have the costs of this appeal from the contesting defendants. As the plaintiff has succeeded substantially he will recover five-sixths of the costs of the lower Court from the contesting defendants. The net result of both the appeals is that the plaintiff will get all the reliefs granted to him by the decree of the lower Court, and over and above, he will get a declaration that he is the shebait of the idol Sree Sree Bha-beswar Shib Linga Thakur and a decree for recovery of possession of the properties dedicated to that deity by the arpannama Ex. A, with five-sixths of the costs of the Court below and full costs of both these appeals from defendants 1 and 8. As defendant 3 had contested the claim of the plaintiff in his individual character also, the decree for costs will not be confined to the assets he had received from Uma Sankar. In conclusion, we may point out an inaccuracy in the judgment of the learned Subordinate Judge, which is not material at this stage. The plaintiff did not withdraw his prayer for mesne profits. He simply made an application for postponing the inquiry into mesne profits at a later s stage of the suit. That application is dated 1st April 1937 and is printed at p. 363 of Part. 1, vol. II of the Paper Book. The order on that application is No. 135 printed at p. 15 of Part 1 of the Paper Book.