Case: Kamalammal &amp; Others Vs. Venkatalakshmi Ammal &amp; Another

2. The facts of the case are not very material but are being set out merely to appreciate how the question arose. One Pappachari died in 1928, leaving behind him his widow Sornammal, four daughters and ason Moogi Puttuswami. This son married Kamalammal who is the third defendant in the suit out of which the appeal arises. Puttuswami died in 1949 leaving behind him his widow Kamalammal and a minorthe fourth defendant in the suit. It is now common ground that the properties which are now in dispute between the widow of Pappachart who brought the suit and the wife and daughter of Puttuswami who contested their claim, were ancestral in the hands of Pappachari. Soon after the death of Pappachari his widow248 of 1950 in the Court of the District Munsiff, Krishnagiri for a declaration of her title to the suit properties, contesting in this respect the right of Kamalammal and her minor daughter to the suit property and for possession of the property after redemption. Sornammal died pending the suit and her eldestwas impleaded as her legal representative. The mortgagees resisted the claim for redemption made by Sornammal by putting forward the mortgage executed in their favour by Kamalammal and thus the real issue between the parties was as to who had the title to the property. Sornammal as the widow of Pappachan or Kamalammal as the heir of Puttuswami, the latter on the foot of the entire property having survived to him on the death of Pappachari.4. The learned trial Judge decreed the suit of the plaintiff holding that, on the authorities which he discussed and the law which he considered, Puttuswami who was admittedly disqualified to inherit was in the same position as if he did not exist and that in consequence on the death of Pappachari, without male heirs the suit property was inherited bywidow as his sole heir and that on her death the same devolved on her daughters. The result of this line of reasoning was that neither Puttuswami nor his widow, and daughter had any rights to the property and consequently the plaintiff was held entitled to possession of property after redemption of the usufructuary mortgage which she had executed. From this decision an appeal was taken by the mortgagees.The learned District Judge held that the question of law was concluded in favour of the appellants by the decision of a Full Bench of the Madras High Court to which we shall refer later and allowing the appeal, dismissed the suit, A second appeal was preferred to the High Court by Venkatalakshmidaughter of Sornammal, The learned Single Judge who heard the appeal referred to the Hindu law texts bearing on the point, made extracts from certain decisions and in effect refusing to follow the decision of the Full Bench of the Madras High Court, allowed the appeal and restored the decree for redemption passed by the trial Court, with the modification that the widow and daughter of Puttu swami were declared entitled to maintenance out of the properties and were granted a charge for the same. An application made to him under cl. 15 of the Letters Patent for leave to appeal from his judgment was dismissed. This Court, however, on being moved by Kamalammal and her daughter as well as by the mortgagees granted special leave and that is how this appeal is now before us.

Court's reasoning:
It is common ground that a person who is born deaf and dumb is disqualified from inheriting and Puttuswami was one such. It is also clear law that though he himself cannot inherit, his lawful issue is entitled to doquestion thus propounded is ultimately dependent upon the proper construction of certain texts of the Hindu law and on the interpretation which these texts have received at the hands of the Courts.6. Broadly stated, under the texts of the Hindu law which we shall refer presently, as interpreted by the courts, there are several bodily, defects like impotence, blindness, idiocy, leprosy, insanity etc. which are stated to have the effect of disqualifying a person from inheritance. It is unnecessary to refer to these in extenso, but it is sufficient for our purpose to mention that among them one born deaf and dumb where the defect is incurable, is oneAct received the assent of the GovernorGeneral on September 20, 1928 but its S. 3 made the Act prospective and preserved rights which had accrued and liabilities which had been incurred before the commencement of the Act. Pappachari died in 1928 but before the Act came into force and hence the provisions of this enactment would not help the appellant and remove the disqualification, if any, imposed upon the deaf and dumb Puttuswami. We are mentioning this in order to show that it is most unlikely that the point now arising for consideration would ever come before the Courts because of the operation of the statute which has been in force for over 35 years.We shall reserve our comments on these texts till after we make reference to the leading decisions which have considered this or the related problems. We need only add that there is no text of any Smriti or of any Commentary on them which directly deals with the problem now before us.It was not disputed by Mr. Choudhurylearned Counsel for the respondent that if the decision of the Full Bench of the Madras High Court in ILR (1946) Mad 452: (AIR 1946 Mad 287  ), was correct, the appeal must succeed, for there are no points of distinction on which the claim of the appellants could beentire passage is but a reproduction of the comment in Maynes Hindu Law, 11th Edn. at page 721, though not so stated. The point made by the Editor of Maynes Hindu Law in support of this last observation questioning the correctness of these decisions is rested on the position that if the disqualification is of a type which is congenital, as in the case of the deaf and the dumb he could never have had any right by birth, which is essential for his being treated as a member of the coparcenary and that if he was, by reason of the texts of the Hindu law, deprived, from the very moment of his birth, of his right to the property he could not obtain fresh rights by reason of the death of the other coparceners.Mr. Venkatasubrahmanya Aiyar has, in the artiole, devoted considerable attention to what he describes as the error committed by the author of the Sarasvati Vilasa in understanding the Smritis and the earlier commentaries, and in particular on the reasoning employed in the placita we have extracted. We do not propose to examine this criticism for the reason that if Sarasvati Vilasa is an authority in South India, and this is evident from what we have stated earlier, and there is no text of the Mitakshara which directly, contradicts the law as there expounded, it would not be proper to discard it on the ground of alleged defects in its reasoning.18. We have already set out the relevant extracts from Sarasvaii Vilasa where a clear distinction is drawn between enjoying a share and taking a share. We would add that such a distinction would square logically with the accepted position that even if at birth there is an affiction which disqualifies, still if the defect is later remedied, he becomes entitled to claim a share. The basic postulate of the Mitakshara being that the right to property is by, birth. unless a vestigial right in property is assumed to exist at birth even with a disqualification which disentitles the person from the right to active participation, his right to participation on the removal of the disability cannot be logically explained. If the distinction betweener be sound, it would convey no meaning it one were to hold that while though the disqualified person be aThe next line of approach is whether there is anything in the text of the Smritis or of the Mitakshara which overrides the statement of the law in Sarasvati Vilasa and forbids effect being given to the law as there enunciated. What is relied on in this connection is not so much any text but the principle underlying the theory of coparcenery. . It is said that a coparcenary interest arises on birth and if a disqualification attaches not after the right by birth has been obtained but even at the moment of birth preventing, as it were, the right by birth emerging how can the right of survivorship which is dependent on the existence of a right by birth come into being on the death of the other coparceners? As pointed out earlier, it is this that forms, as it were, the core of the argument against the correctness of the Full Bench decision in ILR (1946) Mad 452:, (AIR 1946 Mad 287  ) (FB), to be found in Maynes Hindu Law. There is no doubt that this is a powerful argument and if the law had to be determined only on the basis of logic the argument would have got force, subject to what we have pointed out earlier as flowing from the accepted position that on the defect ceasing the right is enforceable. But Hindu Law has not always been logical. Thus we have the instance in the law relating to impartible estates, of the property being treated as coparcenary property in which the other members of thecoparcenary have no right to interdict alienations.It might be said that this was the result of the decisions of the Privy Council in Sartaj Kuari v. Deorajkuari., 15 Ind App 51: ILR l0 All 272 (PC), and Venkata Surya v. Court of Wards, 26 Ind App 83: ILR 22 Mad 383 (PC), but that might not wholly suffice to brush them aside. In the next place, the texts including, theNarada. Vishnu as well as Mitakshara expressly confer uponheir a right to maintenance and brand it as a sin to deny him maintenance during his entire life. That might indicate that it would not be violent inference to hold that the disqualified heir had still some interest, however little it might be in the property for surely it is the proprietary right that gives him the right to maintenance. It might be notice that under the Hindu law the liability to maintain others arises in amanner: (a) from the existence of a particular relationship independent of the possession of any property (b) on possession of property. In the first category fall the cases of the liability to maintain a persons wife, minor sons, and unmarried daughters and aged parents. Here the obligation is personal and is brought into existence by the relationship. In the other category are those where the liability is dependent on the possession of coparcenery property. Assuredly the liability to provide for the maintenance of the disqualified heir under the Hindu law would fall under the latter category also, i.e., it is not confined to the particular relationships which cast the obligation to maintain. Thus a brother would have to be maintained out of the joint property where he is disqualified from claiming partition. No doubt, the texts deny him the right to partition but that is not the subject matter of the discussion here. If the right to be maintained is traceable to his right to the property in which he is excluded from participating in full, it would not be a violent inference to hold that he has an incipient and vestigial interest in that property which is not capable of being asserted against other coparceners, but when there is none entitled to enjoy it as coparcener, blossoms into a full right. Next, we have the circumstance that the qualified male issue of a disqualified person is a coparcener and is entitled to take the property by survivorship. The theory, therefore, cannot be that a disqualified heir should be treated as if he did not exist at all.20. These considerations on the merits apart, there are two other factors to which we are bound to refer. The first is that this decision of the Madras High Court has not been doubted or dissented from in any Court in India these 50 years and more and has determined the rights of parties at least in Madras during this period. Besides, as we have already pointed out, the distinction betweener which forms one of the lines of reasoning on which the decision in Amirthammals case, ILR (1942) Mad 807; (AIR 1942 Mad 693   (FB). rests, was approved by several Judges of the Federal Court in 1949 FCR 715; (AIR 1950 FC 142), though the case then before the court was one of a disqualification arising after the vesting of the property and can, therefore, be distinguished on that ground. Lastly, the law as to disqualified heirs has now been amended and made statutory by the Hindu Inheritance (Removal of Disabilities) Act, 1928 and the precise rule of Hindu law apart from statute is no longer of any practical significance. In these circumstances, we consider that we cannot accede to the submission of the respondent and upset the law as laid down in ILR (1946) Mad 452. (AIR 1946 Mad 287  ) (FB).21. Before concluding it is necessary to advert to one feature which would be apparent even from our narrative. There was a decision of the Full Bench which interpreted the texts and laid down the law on the topic and it is somewhat surprising that the learned Single Judge of the Court thought it proper to refuse to be bound by that judgment and proceeded on his own line of reasoning based on authorities several of which were discussed by the Full Bench relying merely on the statement by the Editor of Maynes Hindu Law that the decision required reconsideration. We cannot but deprecate this practice as it destroys the certainty of the law which the theory of judicial precedent seeks to establish. Not merely convention but rules framed by several High Courts require that where a learned Single Judge or a Division Bench does not agree with a Full Bench decision he or they either make a reference to the Full Bench of place the papers before the Chief Justice for such a reference being made. But that was not, however, what the learned Single Judge did in the present case. He took the unusual step of practically overruling the Full Bench and refusing to be bound by it. In addition he refused leave to appeal under cl. 15 of the Letters Patent, with the result that the appellant was forced to move this Court for special leave.