1. This is a suit to recover (1) Nos. 35 and 33, Blackburn Lane, (2) No. 44, Mechua Bazar Street, (3) a two-thirds undivided share, in No. 1, Old China Bazar Street, and (4) the sale proceeds of Nos. 11, 12 and 13, Ram Mohun Ghose's Lane, under the following circumstances. One Ananta Ram Seal died on the 4th March 1907 intestate possessed of the premises in suit, leaving a son the defendant Bonomali Seal. Bonomali had a son Durga Charan, who died on the 13th July 1918 without issue but leaving two widows, the plaintiffs. On the 2nd April 1908 Sreemutty Debjani Dassi petitioned this Court for an enquiry as to whether Bonomali Seal was or was not of unsound mind and incapable of managing himself and his affairs. On the 6th April 1908 an order was made on this petition which was entitled ' In the matter of Lunacy Act XXXIV of 1858 and In the matter of clause 17 of the Charter and In the matter of Bonomali Seal a lunatic ' by Woodroffe, J., directing an enquiry to be held before him as to whether (inter alia) Bonomali Seal was or was not of unsound mind and incapable of managing himself and his affairs and the time during which he had been of unsound mind. Woodroffe, J., on the 27th April 1908, found and reported (inter alia) that Bonomali Seal was of unsound mind and incapable of managing himself and his affairs and that he had been of unsound mind for about fifteen years, and on the same day Srimati Debjani Dassee and one Kartick were appointed Committees of his person and estate. I should state that the report found that Bonomali Seal was entitled to the premises in Suits Nos. 11, 12 and 13, Ram Mohun Ghose's Lane, being then unsold and the whole of No. 1, Old China Bazar Street, being stated to belong to him.
2. Under the circumstances set out above the plaintiffs contend that as Bonomali was of unsound mind when his father died, he was incapable of inheriting and that the property in suit passed to Durga Charan as whose heirs they claim it.
3. The following issues were raised, (1) Is the. suit barred by limitation as to the sums as mentioned in page 7 of the plaint? (2) Are the plaintiffs estopped from asserting that Bonomali is not entitled to the estate? (3) Was Bonomali excluded from inheritance by reason of insanity? Was his mental condition such as to exclude him from the inheritance? (4) In the event of the plaintiffs' claim succeeding, what is the suitable maintenance and residence to which the defendant is entitled?
4. The following evidence was given before me. Binode Behari Adhya on behalf of the plaintiffs stated that he was a medical practitioner and an M. B. of the Calcutta University and that he had known Bonomali since his marriage with Debjani which was prior to 1907. He stated that Bonomali was not in a sound state of mind in 1907 and that some years after his marriage he became of unsound mind and that at the time of Ananta Barn's death he was not of sound mind and had hallucinations, stating that various people owed him money and that the Government was his rent collector, and that he could not get from him any proper reply as from a reasonable man. In cross-examination he stated that for two or three weeks he specially observed Bonomali for the purpose of giving evidence in the lunacy proceedings, but that before he observed him for the purpose of the lunacy proceedings he only attended him once and that for fever. That Bonomali performed his father's Sradh and that Bonomali used occasionally to come to his house and used to state that his 50 sons were beheaded last night but that his main hallucination was as to money. The next witness Net Behary Dass Sen stated that he first knew Bonomali 10 or 12 years ago and that ever since then he had noticed him to be insane, that he carried bunches of keys about and talked like an insane person and abused little boys who asked him how he was, threatening to send 10,000 troops to punish them. He stated that his state of mind was the same all along both before and after his father's death. In cross-examination he stated that he was a store-keeper in the Bengal Secretariat at Rs. 16 a month and that he was not a friend of the family, but that he used to sit on the ledge of the house and talk to Bonomali and that he found him talking at random. The witness appears to be a chance witness and I am not inclined to attach much importance to his evidence. Satish Chandra Das, the father of the 1st plaintiff, stated that he had known Bonomali for the last 25 or 26 years and that before his daughter's marriage with Durga Charan, Bonomali used to come to his house and used to write that Lord Curzon was his Collecting Sircar and that the Maharajah of Burdwan owed him a crore of rupees and that Government had granted him 10,000 troops, and that in Ananta Barn's lifetime he was not fit for the ordinary intercourse of life and that he thought poison was mixed with his food. That in conversation after the first few moments he began talking about his hallucinations.
5. On behalf of the defendant Apurba Charan Chakravarti stated that he was Ananta Ram's priest and that he knew Bonomali and had been priest of the family for over 40 years. He stated that Bonomali performed the Sradh ceremony after Ananta Ram's death and that he also performed the Chandrayan (expiation) ceremony and offered Pindas on the 10th day, and that he was the priest on those occasions. He also stated that Bonomali performed the Nandi Mag on the occasion of Durga Charan's marriage and also performed his father's annual Sradh and could talk like an ordinary human being and could pronounce the Mantras. In cross examination he stated that he was satisfied if a person performing the Sradh merely repeated the Mantras after him, and that Bonomali did repeat the Mantras when he told him. He stated that under the Shastras a mad man was not competent to perform the Sradh and that Bonomali was of sound mind at the time of his father's death and for 2 or 3 years after, and that he never observed any signs of insanity except talking to himself when alone, which began some 8 years or so ago, and that in 1908 be did cot notice that his state of mind was other than normal and that he noticed no change in his mind after his father's death.
6. The next' witness Manik Lal Dey stated that he was present at Ananta Ram's Sradh ceremony which was performed by Bonomali and that Bonomali's hallucinations were only as to money and that in all other matters he was quite reasonable. In cross-examination he stated that from 1907 upto his son's death in 1918 he was in much the same state, but that he got a little worse after his son's death and that he was invited by Bonomali personally to Durga Charan's wedding, and in re examination he stated that Bonomali on the occasion of his son's wedding did some of the entertaining of the guests. Ashutosh Mullick stated that he had known Bonomali for some 30 years and that Debjani was his niece. He stated that Bonomali was all right at the death of Anant Ram but that he suffered from hallusinations as to money matters, alleging that money was owing to him hut that when he was not under these hallucinations he talked like an ordinary sane man. That he carried his father's corpse to the burning Ghat, performed the Mukhagni and the Sradh and received and talked to the guests at the dinner two days after the Sradb, that Bonomali invited him to his son's wedding and that upto 1910 and 1911 he was all right and that there was nothing wrong about him. He stated that he came (know that something was wrong with him when he stood surety for Debjani, the Committee. Jyotish Chunder Mukerjee gave formal evidence.
7. The remaining witness Debjani was called by my direction at the plaintiffs' request. In answer to plaintiffs' Counsel she stated that Bonomali was a mad man now but that he was not so when Ananta Ram was alive, and that his present condition was the same as after Ananta Ram's death and that he bad been a mad man or like one for the last 11 or 12 years, but that in Ananta Ram's lifetime he was not a mad man but became such after Ananta Ram's death when he began to talk much--she also stated that Durga Charan was 13 or 14 when Bonomali's brain became deranged.
8. This concludes the oral evidence and I now have to decide how far the proceedings before Woodooffs, J., are admissible in evidence. The plaintiffs contend that as against Bonomali they are conclusive and tender in evidence the orders the report and the evidence of Bonomali who was examined before Woodroffe, J. The defendant contends that they are not admissible, urging that the orders are not judgments in rem and in any case are not evidence of the grounds upon which they were made, that the report is merely the judgment and is not admissible and that Bonomali's evidence can only be taken as admission against him under Section 145 of the evidence Act upon which he might be examined.
9. I think there is no doubt that in English Law the proceedings before Woodroffe, J., would even as between third parties be evidence of the lunacy, although not conclusive and liable to be traversed. See Hill v. Glifford (1907) 2 Ch. D. 236 at p. 244 : 76 L.J.Ch. 627 : 97 L.T. 266 : 23 T.L.R 601 and Harvey v. Rex (1901) A.C. 6O1 at p. 611 : 70 L.J.P.C. 107 : 84 L.T. 849 : 17 T.L.R. 601. In the last case, which was an appeal to the Judicial Committee from the Supreme Court of Ceylon, where it was argued that orders in. lunacy made in England were not admissible in evidence in the Ceylon Courts and that these Counts were justified in paying no attention to them, Lord Lindley in delivering the judgment of the Board states as follows :
The orders are not conclusive evidence of anything except their own existence; but being made by a competent tribunal in a matter within its jurisdiction they cannot be rejected as inadmissible, or as no evidence of the truth of those facts re-cited in them which are essential to their validity. They are admissible as prima facie evidence and if uncontradicted they ought to be regarded as sufficient evidence of those facts, not only in this country, but in all His Majesty's dominions.
10. The question, therefore, which I have to decide is whether I am debarred by the Indian Evidence Act from admitting the proceedings before Woodroffe, J., in evidence. I am of the opinion that they do not fall within either sections 40, 41 or 42 of the evidence Act, but that they are admissible under other provisions of the Act. I accordingly admit the orders and the report, but not the evidence of Bonomali who was not called before me and whose evidence would, I think, only be admissible to contradict any evidence he might have given before me had he been called.
11. I now come to deal with the issues. So far as the 1st issue is concerned, I am of opinion that the sums referred to in paragraph 7 of the plaint are not barred by limitation. It is suggested by the defendant that Article 62 of the Limitation Act applies and that as the moneys were received in 1914 and that as the plaintiffs claim through Durga Charan, their claim as to these moneys is barred. 1 do not think that these moneys however, fall within Article 62. Durga Charan, at the time the moneys were received, had made no claim to the estate and the estate at the date of their receipt was in Bonomah's possession through his Committee. Consequently I do not think that they can be said to be moneys received by the defendant to the plaintiffs' use (or to Durga Charan's use) within Article 62. The Article' applicable would, I think, be Article 120 and under this Article the claim is not barred, So far as the 2nd issue is concerned, I do not see that any question of estoppel arises or how by reason of Durga Charan having signed the accounts on his mother's behalf, Bonomali can be said to have changed his position. I now come to the 3rd issue which is the real issue in the case. The conclusion which I have come to upon the evidence is that Bonomali's state of mind at the time of his father's death was not dissimilar to his state of mind upon the 27th April 1908, that is to say, that he suffered from hallucinations and was not normal, but I should be inclined to think that after his father's death there was some increase in his malady. I think that probably at Ananta Ram's death he was incapable of managing his affairs like an ordinary man or of transacting business. At the same time I think it is abundantly established upon the evidence that he performed his father's Sradh and the usual ceremonies connected with the death. Under these circumstances the question which I have to decide is whether his condition was such at his father's death as to make him incapable of inheriting according to Hindu Law. I think, that it was not. Mental affection to disqualify a 'person from inheriting must, I thinks be of such a nature that a man is thereby debarred or incapable of performing the funeral rites and offering the proper funeral oblations; Dwarkanath Bysak v. Mahendranath Bysak 9 B.L.R. 198 at p. 209 : 18 W.R. 305, surti v. Narain Das 12 A. 530 : A.W.N. (1890) 110 : 6 Ind. Dec. (N.S.) 1082, Mayne's Hindu Law and Usage, 8th Edition, page 834. There is no evidence before me that Bonomali, being incapable of performing these duties, was allowed to perform them with a view of defrauding another of the inheritance; there is not only no such evidence but the fast sworn to by the priest and by others that he did perform them and was capable of so doing. This being so, I answer the 3rd issue in the negative. The fourth issue does not arise. In the result the suit fails and must be dismissed with costs on scale No. 2.