Judgment Case ID: 830

Judgment:
ppeal No.200 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 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 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 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 exhibit 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 vs 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 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) 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 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 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 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 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	 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 20	1924	 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 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 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	 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 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 1/9th 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 1/8th 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 (F.B.). 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 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	 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 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.

Summary:
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 vs Meenammal. 	 Wooma Parshad Roy vs Grish Chunker Prochundo	 Cal. 639 and Deo Kishen vs Budh Prakash	 All. 509 (F.B.)approved. Murarji Gokuldas vs Parvatibai	 Bom. 177 and Sanku vs Puttamma	 Mad. 289	 disapproved.