ppeal No200 of 1955
Appeal from the judgment and decree dated January 20 1943 of the Madras High Court in A section No 392 of 1943 arising out of the judgment and decree dated March 30 1943 of the Sub Judge Tuticorin in O section No 34 of 1939
section V Venugopalachariar and section 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 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 NS 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 OSNo 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 731 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 NS Muthammal third defendant and Pothiadia Irungol Pillai second defendant who had not entered into the compromise
It May be mentioned here that by exhibit D 22 a registered agreement dated May 20 1928 the heirs had already agreed to give to Arunachala Irungol Pillai and NS Muthammal one eighth share each respectively in the properties of M Picha Pillai
Thus by this compromise the Devasthanam received 56th share of the properties of M Picha Pillai the remaining 16th going to Pothiadia Irungol Pillai 124th and NS Muthammal 18th
The Devasthanam filed an appeal in the High Court against the dismissal of the suit in respect of this 16th 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 vs Rama samia Pillai 1
Without waiting however for the result of the appeal in so far as the 16th 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 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 defendantRamasami 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 RMuthammal it was contended that he was not a 1 732 lunatic buddhi swadeenam illadavar but only a person of weak intellect buddhi deechanya matra and thushe 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 19th share by virtue of an alleged agreement stated on affidavit in exhibit 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 OSNo 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 section 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 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 19th 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 exhibit 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 201924 an order G section No 35 of 1924 was recorded by the Subordinate Judge exhibit 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 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 exhibit D 22 dated May 20 1928 Ramaswami Pillai was not considered as a claimantand 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 distinctionwhich 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 vs 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 1 736 inheritance some of which like blindness mutenessidiocy 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 846where 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 vs 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 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 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 vs Parvatibai 1 where the observation is obiter and Sanku vs Puttamma 2 which was dissented from in later cases
On the other hand Wooma Pershad Roy vs Grish Chunder Prochundo 3 Deo Kishen vs 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 19th share on the basis of an alleged arrangement evidenced by exhibit D 7 dated April 1 1931
This document is an affidavit which was filed by Doriappa Pillai Defendant 8 in a suit O section No 25 of 1930 filed by him for possession after partition of his 18th share on the basis of exhibit D 22
In that suit Ramasami Pillai was the second defendant
exhibit 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 exhibit D 6
In the affidavit which was filed it was stated as follows  1 Bom
2 Mad
3 Cal
4 All 509 FB
94 738 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
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
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 DW 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 DW 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 OS 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 exhibit 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 DW 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 pressedand no other point having been argued we hold that the appeal has no merits
It will accordingly be dismissed with costs
Appeal dismissed


Summary:
Rule 54 of the Mineral Concession Rules 1949 provided as follows  Review
Upon receipt of such application the Central Government may if it thinks fit call for the relevant records and other information from the Provincial Government and after considering any explanation that may be offered by the Provincial Government cancel the order of the Provincial Government or revise it in such manner as the Central Government may deem just and proper
The appellant was granted mining leases in respect of five areas and possession was delivered to him
On an application for review made by one of the respondents under r 52 of the Rules the Central Government without giving the appellant an opportunity of being heard cancelled the leases with regard to two of the areas and directed the State Government to grant leases in respect thereof to the said respondent
The appellant applied to the High Court under article 226 of the Constitution for quashing the said order
The Single judge who heard the application as well as the Division Bench on appeal held that the order of cancellation was an administrative order and the appellant was not entitled to a hearing
It was contended on behalf of the appellant in this Court that rr
52 55 of the Rules showed that the proceeding before the Central Government was a quasijudicial proceeding and consequently the rules of natural justice must apply
Held that the contention must prevail and the order of cancellation be quashed
In exercising its power of review under r 54 of the Mineral Concessions Rules 1949 the Central Government acted judicially and not administratively
Assuming that the act of the State Government in granting a mining lease was an administrative act it was not correct to say that no right of any kind passed to the lessee thereunder untill the review was decided by the Central Government where a review had been applied for
Rule 52 therefore by giving the aggrieved party the right to a review created a lis between him and the lessee and consequently in the absence of anything to the contrary either in r 54 or the statute itself there could be no 99 776 doubt that the Central Government was acting quasi judicially under r 54
Province of Bombay vs Kushaldas section Advani
1950 SCR621 applied
R vs Electricity Commissioner
1924 I K B 171 referred to