1. The facts which have given rise to this appeal have been set out at length in the judgments of the Courts below, and it is, therefore, unnecessary for us to repeat them here. The plaintiff prayed for declaration of title to and separate possession of the lands in Schedule 2, for declaration of title to one-fourth share of the lands in Schedule I and for recovery of that share on partition, and for declaration of title to one-fourth share of the lands in Schedules 6 and 7 and for recovery of joint possession of the same and for other reliefs mentioned in the plaint. The defendant No. 1 contended that the plaintiff being a leper did not inherit the properties left by his maternal grandfather, one Jagannath, and that, in any event, the plaintiff's claim was barred by limitation. The defendants Nos. 2 and 3 pleaded that the plaintiff had no cause of action as against them. The defendant No. 4 supported the defendant No. 1. The Court of first instance found that the plaintiff was not disqualified to inherit the properties which belonged to Jagannath on account of his leprosy and that the suit was not barred by limitation. The lower Appellate Court on appeal found, according to the medicel evidence which had been adduced in the case, that the plaintiff had anaesthetic leprosy of the mildest kind and that it was not of a bad type and was not ulcerous and accordingly held that at the time when the succession opened, he had no leprosy of such a kind as could disqualify him from inheriting the properties which belonged to his maternal grandfather. On the question of limitation, the lower Appellate Court found that, inasmuch as Jagannath's widow, Sreemati Bhagbati, was in possession of the joint properties till 1321 B.S. when she died, time began to run as against the plaintiff Only from the death of Bhagbati when the succession opened, and, therefore, the plaintiff's suit was not barred by limitation. The lower Appellate Court accordingly affirmed the decree of the First Court. Against this judgment and decree of the lower Appellate Court the present apppeal has been preferred by the defendants Nos. 1 and 4 and on their behalf it has been contended before us that, on the findings of the two Courts below, it should have been held that the plaintiff was excluded from inheritance, and, secondly, that it had not been shown what the condition of the plaintiff was at the time when the succession opened.
2. Now, under the Hindu Law, the grounds of exclusion from inheritance fall under the follwing six heads: (i) physical and mental defects, (ii) incurable or agonizing diseases, (iii) degradation from caste by reason of crime or otherwise, (iv) vicious, criminal or irreligious conduct, (v) becoming naisthika brahmachari (perpetual student); vanaprasthasrami (hermit) or sanyasi (ascetic.) The physical and mental defects expressly mentioned in the text are impotence, dumbness, deafness, lunacy, lameness, blindness and idiocy. Manu has a further vague ground of exclusion nirindriyatwa, i.e., absence of limb or sense which includes according to Saraswati Vilasa females as a class. Among the diseases, lunacy has already been referred to. Other deseases expressly mentioned are leprosy (Vishnu) and elephantiasis (Devala). Yajnavalkya has a general ground acjikitsya roga (incurable disease) of which consumption is given as an illustration by the Mitakshara, and Narada has a similar general ground deerghteeraroga obstinate or agonizing disease. There is some difference of opinion as to some of these defects, whether they should be congenital. Sir Thomas Strange distinguishes between infirmities, such as blindness, deafness, dumbness, etc., which to disqualify must be coeval with birth, and disqualifying diseases such as leprosy, etc., which the Hindu religion regards as visitations not only for sins committed in a preceding state, but also for sins Committed in this life; and, therefore, such visitations are not necessarily congenital in order to disqualify.
3. Of the smriti writers, the only one who expressly excludes a leper is Devala, whose text runs as follows:--'When the father is dead, an impotent man, a leper, a madman, an idiot, a blind man, an outcaste, the offspring of an outcaste, and person wearing the token (of religious mendicity) are not competent to share the heritage.' Manu excludes one who is a nirindriya, that is, devoid of an organ, after expressly mentioning eunuchs and outcastes, one born blind or deaf, an insane, an idiot and a dumb man, but a leper is not referred to by him. See Buhler, Ch. IX, sloka 201. Apostamba and Vasistha do not exclude him. Narada excludes persons afflicted with a chronic or acute disease (see Sacred Books of the East, Volume 33, page 194), or, as otherwise translated, an acute or agonizing distemper. Atrophy or pulmonary consumption is instanced as a chronic, and leprosy as an acute, disease in the Ratnakara; Yajnavalkya and Vishnu exclude persons suffering from an incurable disease. So far as leprosy is concerned, the later Hindu Law books generally lay down that to be a ground of exclusion it must be of the sanious or ulcerous and not of the anaesthetic type: see Janardhan Pandurang v. Gopal Pandurang 5 B.H.C.R. (A.C.J.) 145, Ananta v. Ramabal 1 B. 554 : 1 Ind. Dec. (N.S.) 367, Rangayya Chetti v. Thamkachalla Mudali 19 M. 74 : 6 Ind. Dec. (N.S.) 757, Helan Dasi v. Dutga Das Mundal 4 C.L.J. 323, Bhagaban Ramanuj Das v. Ram Praparna Ramanuj Das 22 C. 843 : 22 I.A. 94 : 6 Sar. P.C.J. 536 : 11 Ind. Dec. (N.S.) 558 (P.C.), and Kayarohana Pathan v. Subbaraya Thevan 19 Ind. Cas. 690 : 38 M. 250 : 13 M.L.T. 460 : (1913) M.W.N. 642 : 25 M.L.J. 251.
4. The presumption of Hindu Law is against disqualification and the burden of proof of disqualification lies on a person who seeks to exclude another who would be an heir, should no cause of exclusion be established. It is also settled that where it is contended that a person is excluded from inheritance by reason of disease, the strictest proof of the disease as will disqualify him at the time the succession opened will be required. On the findings arrived at by the two Courts below and on the authorities referred to, with which we are in agreement, we must hold that the plaintiff was not disqualified from inheriting the properties which belonged to his grandfather after the death of Sreemati Bhagabati Dasi. In this view of the matter the two contentions advanced on behalf of the appellants fail, and this appeal must be dismissed with costs.