Full Judgment Text
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PETITIONER:
1. R. MUTHAMMAL (Died)2. PARAMESWARI THAYAMMAL
Vs.
RESPONDENT:
SRI SUBRAMANIASWAMI DEVASTHANAM,TIRUCHENDUR
DATE OF JUDGMENT:
14/01/1960
BENCH:
HIDAYATULLAH, M.
BENCH:
HIDAYATULLAH, M.
DAS, S.K.
SARKAR, A.K.
CITATION:
1960 AIR 601 1960 SCR (2) 729
ACT:
Hindu Law-Exclusion from inheritance-Lunacy, if must be
congenital.
HEADNOTE:
A Hindu was found to be a lunatic when succession opened.
It was claimed that under the texts lunacy must be
congenital to exclude from inheritance.
Held, under the Hindu law lunacy as distinct from idiocy
need not be congenital to exclude from inheritance, if it
existed when succession opened.
Muthusami v. Meenammal. (1920) I.L.R. Mad. 464, Wooma
Parshad Roy v. Grish Chunker Prochundo, (1884) I.L.R. 10
Cal. 639 and Deo Kishen v. Budh Prakash, (1883) I.L.R. 5
All. 509 (F.B.)approved.
Murarji Gokuldas v. Parvatibai, (1876) I.L.R. 1 Bom. 177 and
Sanku v. Puttamma, (1891) I.L.R. 14 Mad. 289, disapproved.
JUDGMENT:
CIVIL APPELATE JURISDICTION: Civil Appeal No.200 of 1955.
Appeal from the judgment and decree dated January 20, 1943,
of the Madras High Court in A. S. No. 392 of 1943, arising
out of the judgment and decree dated March 30, 1943, of the
Sub Judge, Tuticorin in O. S. No. 34 of 1939.
S. V. Venugopalachariar and S. K. Aiyangar, for the
appellant No. 2.
A. V. Viswanatha Sastri, R. Ganaapathy Iyer and G.
Gopalakrishna, for respondent No. 1.
1960. January 14. The judgment of the Court was delivered
by
HIDAYATULLAH J.-This appeal has been filed on leave granted
by the High Court of Madras against its judgment and decree
dated January 20, 1947, by which the decree of the
Subordinate Judge, Tuticorin, dated March 30, 1943, was
substantially modified.
93
730
Before the application for leave to appeal to the Judicial
Committee could be filed, the first defendant (Ramasami
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Pillai) died, and the application for leave was filed by
his widow, R. Muthammal, who was the fourth defendant in
the suit. R. Muthammal also died soon afterwards and her
place was taken by Parameswari Thayammal (her daughter born
of Ramasami Pillai), who was the fifth defendant in this
case. Along with these three defendants, the other
members of Ramasami Pillai’s family were also joined as
defendants. The suit was filed by Sri Subramaniaswami
Devasthanam, Tiruchendur (hereinafter called for brevity,
the Devasthanam), and the Devasthanam is the only contesting
respondent in this Court.
One Poosa Pichai Pillai had five sons and three daughters,
of whom Meenakshisundaram Pillai died on May 21, 1919.
Before his death Meenakshisundaram Pillai executed a
registered will on May 20, 1919, and a registered codicil on
May 21, 1919. By these documents, he left his entire
property to his only son, M. Picha Pillai, with the
condition that should he die without issue, the property was
to go to the Devasthanam.
M. Picha Pillai died a bachelor on December 10, 1927. Three
claimants claimed the property after his death. The first
naturally was the Devasthanam claiming under the gift over
to it. The other two were the heirs of M. Picha Pillai, who
asserted that the gift over was void, and
Meenakshisundaram’s wife’s brother and sister, Arunachala
Irungol Pillai and N.S. Muthammal (third defendant),
respectively who claimed under an alleged will of M. Picha
Pillai. The heirs of M. Picha Pillai were defendants 7, 8,
10, 13 and 14, the father of defendants 9, and the first
defendant. These claimants denied the claim of the
Devasthanam, contended that the will and the codicil above
mentioned gave an absolute estate to M. Picha Pillai, and
that the gift over to the Devasthanam was, therefore, void.
The Devasthanam filed O.S.No. 57 of 1932 for declaration and
possession of the properties covered by the will, together
with other reliefs. During the pendency of the suit, the
heirs of M. Picha
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Pillai and the present defendants 15 and 16 (two of the
three sons of Arunachala Irungol Pillai) assigned their
interest in favour of the Devasthanam. The result of the
suit, therefore, was that a decree in favour of the
Devasthanam was passed in regard to the interest of the
assignors, but it was dismissed as regards the interest of
N.S. Muthammal (third defendant) and Pothiadia Irungol
Pillai (second defendant) who had not entered into the
compromise. It May be mentioned here that by Ex. D-22, a
registered agreement dated May 20, 1928, the heirs had
already agreed to give to Arunachala Irungol Pillai and
N.S. Muthammal one-eighth share each respectively in the
properties of M. Picha Pillai. Thus, by this compromise the
Devasthanam received 5/6th share of the properties of M.
Picha Pillai, the remaining 1/6th, going to Pothiadia
Irungol Pillai (1/24th) and N.S. Muthammal (1/8th). The
Devasthanam filed an appeal in the High Court against
the dismissal of the suit in respect of this 1/6th share
and failed. An appeal was then taken to the Judicial
Committee, which also failed. The judgment of the Privy
Council is reported in Sri Subramaniaswami Temple v. Rama-
samia Pillai (1).
Without waiting, however, for the result of the appeal in
so far as the 1/6th share was concerned, the Devasthanam
filed the present suit joining the two sets of claimants
for declaration, ejectment and possession by partition
of the properties to which it claimed title and for mesne
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profits. The properties were shown in various schedules
annexed to the plaint; but it is unnecessary to refer to
those schedule except were the needs of the judgment so
require. One of the contentions raised by the plaintiff-
Devasthanam in this suit was that the first
defendant,Ramasami Pillai, was not entitled to a share in
the properties as an heir of M. Picha Pillai, being a
lunatic when succession to these properties opened.
Onbehalf of the first defendant, Ramasami Pillai, who
contested the suit through his wife and guardian,
R.Muthammal, it was contended that he was not a
(1) (1950) 1 M.L.J. 300.
732
lunatic (buddhi swadeenam illadavar) but only a person of
weak intellect (buddhi deechanya matra), and thus,he was not
excluded from inheritance. This point was the main
argument in this appeal, because the two Courts below
reached opposite conclusions. According to the
Subordinate Judge of Tuticorin, Ramasam Pillai’s plea was
correct and proved. The High Court, on the other hand,
held that the mental defect in Ramasami Pillai amounted
to lunacy, and that it disentitled him to a share.
Connected with this above matter is the second contention
raised by Ramasami Pillai that he was entitled to a 1/9th
share by virtue of an alleged agreement stated on affidavit
in Ex. D-7 by Doraiappa Pillai on April 1, 1931. We shall
give the details of this contention hereafter. The third
contention raised in this appeal and also before the High
Court was that the properties described in plaint sch. 4-A
were the subject-matter of a decree dated September 19,
1927, in favour of M. Picha Pillai in O.S.No. 35 of 1924
filed by him against his cousins. According to Ramasami
Pillai (first defendant), the decree was not executed for a
period of 12 years and the claim thereto was, therefore,
barred under s. 48 of the Code of Civil Procedure, and thus
the Devasthanam was not entitled in this suit to claim
possession of those properties.
We shall begin with the question whether Ramasami Pillai was
excluded from inheritance by reason of his mental condition
on December 10, 1927. The argument of the appellant is two-
fold. The first is on the fact whether Ramasami Pillai was
a lunatic within the Hindu law texts. The second is a
question of law whether this lunacy was not required to be
proved to have been congenital to disentitle Ramasami Pillai
to succeed to his father. We shall deal with these two
questions separately.
In view of the fact that the two Courts below had reached
opposite conclusions on the fact of lunacy, we have looked
into the evidence in the case, and have heared arguments for
the appellant. We are satisfied that the opinion of the
High Court is correct in all the circumstances of this case.
The argument on behalf
733
of the appellant was that in judging this issue we should
see the evidence regarding the mental condition of Ramasami
Pillai antecedent and subsequent to December 10, 1927, the
conduct of his father, relatives and the other claimants
of the property. It was contended that Ramasami Pillai was
attending school. though nothing was shown to us from
which we infer that he had profited by the attempts to
educate him. The appellant, however, set great store by two
documents, Exs. D-1 and D-2, executed by his father,
Perumal Pillai, in January and April 1924. By the first,
Perumal Pillai released his claim to certain properties in
favour of his four sons, mentioning therein Ramasami Pillai
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without adverting to the fact that he was a lunatic and
without mentioning a guardian. By the second, which was a
will, Perumal Pillai gave equal shares in his properties to
his sons including Ramasami Pillai, and once again without a
mention of his mental condition. It was contended that
Perumal Pillai was a Sub-Registrar who would know the
importance of such a fact and also the law that a lunatic
was not entitled to succeed. The fact that the father in
these two documents made no mention of the mental condition
of his son does not bear upon the present case for two
reasons. The first is that the case of Ramasami Pillai in
this suit was that he was quite sane till 1924, and that his
mental condition deteriorated only after that year. The
second is that the omission by the father to mention this
fact might be grounded on love and affection in which the
claim of a mentally defective child might not have been
viewed by him in the same manner as the law does.
It was next contended that the other heirs recognised the
right of Ramasami Pillai in April 1928 and agreed to give
him a 1/9th share, as has been already stated above. That
too would not prove that Ramaswami Pillai was entitled, in
law, to a share. The compromise (which is also contested)
might have been out of motives of charity but might not have
been due to the fact that Ramasami Pillai’s right to a share
was legally entertainable.
The evidence, however, of Ramasami Pillai’s mental
incapacity is really voluminous. Between
734
June 1924 and till his death, numerous suits were filed by
different members of the family, including his wife, his
cousins, uncle and aunt, in which Ramasami Pillai was always
shown as a lunatic requiring the appointment of a next
friend or a guardian-ad-litem. In one case only where
Ramasami Pillai was the second defendant, an appearance was
entered on his behalf by a vakil, who contended that
Ramasami Pillai was sane and ought to be represented in
person. The Court on that occasion appointed the Head Clerk
of the Court as his guardian, and asked him to report about
the condition of Ramasami Pillai. Ramasami Pillai was also
asked to appear in Court in person, so that the Court might
form its own opinion by questioning him. The Head Clerk
visited Ramasami Pillai and submitted his report, Ex. P-8,
in which lie described his observations. It appears that
Ramasami Pillai did not even give his name when questioned,
and appeared to be woody and silent. The relatives felt
that he was hungry and fed him; but even after this,
Ramasami Pillai did not give any answers to the questions
put to him in the presence of his wife and others. The Head
Clerk therefore reported that the appearance of Ramasami
Pillai as a gloomy and sickly person with a vacant look and
that his inability to answer even the simple question about
his name, clearly showed that he was insane, This report was
presented to the Court in the presence of the vakil, who had
filed the vakalatnama, and on September 20,1924, an order
(G. S. No. 35 of 1924) was recorded by the Subordinate
Judge (Ex. P-9). It was mentioned therein that the report
was not objected to by the vakil for Ramasami Pillai, and
that Ramasami Pillai was treated as a lunatic. Ramasami
Pillai himself did not appear.
It was contended that this enquiry as well as the fact that
in numerous litigations Ramasami Pillai had a guardian or
next friend to look after his interests did not prove that
he was insane within the meaning of the Hindu law texts; it
only proved that he was a person incapable of looking after
his interests and for the purposes of the conduct of the
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suits a guardian or next friend, as the case might be, was
necessary. In our opinion, the long and continued course of
conduct
735
on the part of the various relatives clearly shows that
Ramasami Pillai was, in fact, a lunatic, and the report of
the Head Clerk given in a case long before the present one
was ever contemplated, shows only too clearly that he was,
for all intents and purposes, not only a person who was
slightly mentally deranged but one who was regarded and
found to be a lunatic. There being this evidence, the
distinction now sought to bemade and which appealed to the
Subordinate Judge of Tuticorin, is not borne out by the
evidence in the case.Such a long and continuous course
of conduct clearlyproves the contention that Ramasami
Pillai was, infact, mad. Further, in Ex. D-22 dated May 20,
1928, Ramaswami Pillai was not considered as a claimant,and
his claims could not have been overlooked by all his
relatives simply because they were to get an additional
share each in the property by reasonof his exclusion.
Some one of his relatives would havefelt the need for
asserting the claim on his behalf, ifhe himself did not
do so. In view of the fact that thepreponderance of
probabilities is in favour of thedecision of the High
Court, we do not think that theappellant has succeeded
in establishing the distinction,which was made in the
case, between a lunatic and aperson of weak intellect on
the evidence, such as it is.This brings us to the next
contention which is oneof law. It may be pointed out here
that before theSubordinate Judge, Ramasami Pillai did
not raise thecontention that as a matter of law insanity
must becongenital before a person would be excluded from
inheritance. Learned counsel for the appellant explained
that it was futile to raise this contention in view of the
decision of the Madras High Court in Muthusami v. Meenammal
(1), in which it was ruled that insanity need not be
congenital to create the disability, and that insanity at
the time succession opened was enough. The point, however,
appears to have been raised in the High Court, but it was
decided against Ramasami Pillai. The soundness of this view
is questioned in this appeal.
The argument shortly is this: The text of Manu (ix, 201)
mentions many causes of exclusion from
(1) (1920) I.L.R. Mad. 464.
736
inheritance, some of which like blindness, muteness,idiocy
and lameness, it is settled, must be congenital to exclude a
person from inheritance. It is argued that the collection
of the words in the text suggests that insanity like these
other disabilities must also be congenital. No doubt, the
word " Unmatha " comes between the words
"Jatyandhabadhirau" and " Jadamukascha "; but the rulings
have uniformly held that for the madness, the test, that it
should be congenital, does not apply. The argument now
raised has the support of the opinion expressed by Dr.
Sarvadhikari in his Principles of Hindu Law Inheritance-(2nd
Edn.) p. 846,where the author expounded the text according
to rules of grammar, though he was doubtful if according to
medical science, madness as opposed to idiocy is ever
congenital. The translations of the same text by Setlur,
Gharpure and Dr. Ghose do not admit this interpretation. In
Muthusami v. Meenammal (1), it was pointed out also that "
Unmatha " was not qualified by the word " Jati ". Seshagiri
Ayyar, J. observed that it according to Mimamsa rules of
interpretation, an adjective qualifying one clause should
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not by implication qualify a different clause ". The counsel
on that occasion agreed that this was the correct approach,
but relied upon the opinion of Dr. Sarvadhikari which was
not accepted.
Learned counsel for the appellant also referred to the
opinion of Colebrooke in his Digest, Vol. 11, p. 432.
Colebrooke’s translation is based upon the commentary of
Jagannatha Tarkapanchanana, and it is Jagannatha who made no
difference between the various disabilities, and opined that
madness like blindness or muteness must be also congenital.
No doubt, much weight must be attached to the opinion of
Jagannatha who was " one of the most learned pandits that
Bengal had ever produced ". But this translation of
Colebrooke has not been universally accepted, and is not
borne out by the original texts and commentaries on the
Mitakshara. Dr. Ghose in his Hindu Law, Vol. 1, p. 224 has
expressed his doubts. The texts of Narada XIII, 21, 22,
Yajnavalkya 11, 140-141 and others do not show that the
defect of madness must also be
(1) (1920) I.L R. 43 Mad. 464.
737
congenital. In Saraswati Vilasa 148, the emphasis of
congenital disability is placed on blindness and deafness.
Similarly, in Smriti Chandrika, Chap. V , 4, persons born
blind and deaf are mentioned apart from madmen and idiots.
That idiots must be congenitally so, is ruled by the Courts.
The cases that have come before the Courts have Devasthanam
all been uniform, except Murarji Gokuldas v. Parvatibai (1),
where the observation is obiter and Sanku v. Puttamma (2),
which was dissented from in later cases. On the other hand,
Wooma Pershad Roy v. Grish Chunder Prochundo (3), Deo Kishen
v. Budh Prakash (4) and other decisions have clearly held
the contrary. In two cases before the Privy Council it was
assumed that madness need not be congenital. It may also be
noted that when the Legislature passed the Hindu Inheritance
(Removal of Disabilities) Act XII of 1928 making the change
to madness from birth as a ground of exclusion the law was
not made retrospective, thus recognising the correctness of
the judicial exposition of the original texts. In this view
of the matter, we do not think that we should unsettle the
law on the subject; nor has it been made to appear to us
that any different view is open. We accordingly do not
accept the contention.
The result -is that Ramasami Pillai was not entitled to
succeed to M. Picha Pillai. We now come to the next
contention. It is that even if this be the position,
Ramasami Pillai was entitled to 1/9th share on the basis of
an alleged arrangement evidenced by Ex. D-7 dated April 1,
1931. This document is an affidavit which was filed by
Doriappa Pillai (Defendant 8) in a suit (O. S. No. 25 of
1930) filed by him for possession after partition of his
1/8th share on the basis of Ex. D-22. In that suit,
Ramasami Pillai was the second defendant. Ex. P-5 is the
written statement filed on his behalf in which he repudiated
that he was excluded from inheritance by reason of his
insanity. This suit was withdrawn on April 2, 1931, with
the leave of the Court, with liberty to bring a fresh suit
(Ex. D-6). In the affidavit which was filed, it was stated
as follows :
(1) (1876) I.L.R. 1 Bom. 177. (2) (1801) I.L.R. 14 Mad.
289.
(3) (1884) I.L.R. 10 Cal. 639. (4) (1883) I.L.R. 5 All. 509
(F.B.).
94
738
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5. Excepting Defendant 9, myself and almost all the
Defendants agree to give. to Defendant 2 an equal share
with others and thus come to some amicable arrangement
between us.
6. In view of the ninth Defendant’s contentions in the suit
and in view of the fact that I have not prayed in this suit
for a declaration of my title to the suit properties as
against him, I am advised that I should withdraw the present
suit for partition with liberty to institute a fresh suit as
I may be advised.
7. It is therefore just and necessary that I may be
permitted to withdraw this suit with liberty to bring a
fresh suit properly framed."
The Subordinate Judge held on this and the evidence of D.W.
2 that this family arrangement was duly proved, and that
Defendant 10 who was present in Court when the above
statement was made, did not choose to deny it.
The High Court rightly pointed out that the affidavit did
not show the compromise as a completed fact, and also did
not accept the word of D.W. 2. The claimants, who are stated
to have given a share to Ramasami Pillai, have not been
examined. The High Court also noticed that no application
for transfer of the pattas was made. In view of these
circumstances which are all correct, the appellant cannot be
said to have successfully established the family
arrangement, and we do not consider it necessary to examine
the oral evidence in the case.
This brings us to the last point that Ramasami Pillai was
entitled to a share in the properties comprised in Sch. 4-A.
M. Picha Pillai had filed O.S. No. 35 of 1924 against his
cousins for possession of these properties. The suit was
decreed on September 19, 1927. On October 30, 1927, P.
Picha Pillai (Defendant 7) and Serindia Pillai sent a
notice, Ex. P-3, informing M. Picha Pillai that he could
take possession of the properties covered by, the decree.
This notice was refused and returned to the senders. M.
Picha Pillai died soon afterwards on December 10, 1927. It
is contended that the properties thus remained in possession
of the judgment-debtors, and the decree not
739
having been executed, the present suit filed on October 18,
1939, is barred in so far as those properties are concerned,
and the Devasthanam cannot get possession of them.
Both the Courts below have concurred in holding that M.
Picha Pillai must have got possession otherwise than by
execution of the decree, because even D.W. 2 not very
friendly to the Devasthanam admitted that M. Picha Pillai
was at the time of his death in possession of all the suit
properties. The two Courts below also adverted to the fact
that for the years, Faslis 1338 and 1339 the 10th defendant
paid the taxes, and this would not happen if the heirs of M.
Picha, Pillai were not in enjoyment. The fact that the
patta stood in the names of the original judgment-debtors
would not indicate anything, because mutations some. times
lag behind change of possession. In view of the fact that
the two Courts below have agreed on the finding and there is
evidence to support it, we see no reason to interfere.
The question of mesne profits was not pressed,and no other
point having been argued, we hold that the appeal has no
merits. It will, accordingly, be dismissed with costs.
Appeal dismissed.