ORDER Sulaiman, C.J. and Bennet, J.
1. This is a defendant's appeal arising out of a suit for recovery of possession of certain house properties. Originally part of the properties belonged to Diwan Singh who had four sons including Kanhaiya Lal. It is an admitted fact that after the death of Diwan Singh there was a partition among his four sons and Kanhaiya Lal with his branch got a distinct one-fourth share. It is also an admitted fact that there was no formal partition between Kanhaiya Lal and his sons or between his sons inter se. On Kanhaiya Lal's death, there were three sons, Jai Kuar Mal, Sant Lal and Sheo Singh. Of these Jai Kuar Mal died issueless and shortly after him Sant Lal died who left a widow and two daughters who are the present plaintiffs. Sheo Singh survived. The position then is that if Sant Lal was the last male owner, then on his death his property devolved on the present plaintiffs who are his daughters in spite of the fact that Sheo Singh survived him. On the other hand, if Sheo Singh had an interest in the family property and was the last surviving member then on Sheo Singh's death the property would pass to the collaterals and would not devolve on Sant Lal's daughters,' who had predeceased his brother. It is now also an admitted fact that Sheo Singh had been suffering from leprosy of a sanious or virulent type at the time of the death of his father, Kanhaiya Lal. But it has been found that it had not been congenital.
2. The principal question for consideration in this case is whether Sheo Singh acquired any interest in the property of his grandfather, Diwan Singh, or his father, Kanhaiya Lal, and whether he could succeed to the entire estate by survivorship on the death of Sant Lal; or whether on account of his disease he was disqualified from acquiring any interest in this property at all so that on the death of Kanhaiya Lal and his eldest son the property remained vested in Sant Lal alone and Sheo Singh had no share, with the result that on the death of Sant Lal that property devolved on his daughters to the exclusion of Sheo Singh. On this point there has unfortunately been a conflict of opinion in this Court. In the case in Ram Ghulam v. Ram Sahai (1881) A.W.N. 121 a ruling of the Bombay High Court was followed and it was held that if incurable leprosy was contracted before partition, it would exclude the person afflicted with it from the share in the ancestral estate. The case was remanded as there was no clear and definite finding on that point by the Court below. On the other hand, in Tirbeni Sahai v. Muhammad Umar (1905) 28 All. 247 it was held that a member of a joint Hindu family who had acquired by his birth an interest in the joint family property was not divested of that interest by subsequently becoming insane. In Man Singh v. Mt. Gaini A.I.R. 1918 All. 377 it was held that there is no principle of Hindu law under which a person who contracts the disease of leprosy is thereby disqualified from dealing with his own property or from dealing with joint family property so as to bind his sons, provided the alienation is made for legal necessity.
3. The opinion expressed in the other High Courts is contrary to the opinion expressed in the later oases of this Court. See Ananta v. Ramabai (1875) 1 Bom. 554, Ram Sahye Bhukkut v. Lalla Lalji Sahye (1882) 8 Cal. 149, Ram Soonder Roy v. Ram Sahye Bhugut (1882) 8 Cal. 919 and Kayarohana Pathan v. Subbaraya Thevan A.I.R. 1916 Mad. 470. This latter case has been approved of by their Lordships of the Privy Council in Deo Kishen v. Budh Prakash (1883) 5 All. 509 corresponding to AIR 1924 PC 125. But in these last mentioned oases the only question which directly arose was as to whether deformity and unfitness for social intercourse arising from the virulent and disgusting nature of the disease would be the most satisfactory test, and not whether it should exist at the time of the partition. In the Pull Bench case in Deo Kishen v. Budh Prakash (1883) 5 All. 509 it was laid down that when once the estate has vested in an individual, it cannot be divested, by reason of her insanity. But in that case the question had arisen with regard to a widow who had not been born insane, but was insane at the time of her husband's death when the succession opened to her. That case is therefore distinguishable. An entirely new view has been taken in Muthusami Gurukkal v. Meenammal A.I.R. 1920 Mad. 652 where it has been laid down that the right of a member of a Hindu joint family to share in ancestral property which has come into existence at birth is not lost but is only in abeyance by reason of a subsequent disqualification and that it subsists all through although it is incapable of enforcement at the time of partition, if the disqualification then exists; but if on the death of all the other members the disqualified member becomes the sole surviving member of the family, he takes the whole property by survivorship. Section 10 of Ch. 2 of the Mitakshara (Colebrook's Translation) deals with such disqualifications and placita 6 and 7 are relevant. There is no doubt that disqualified persons are debarred of their shares if their disqualification arose before the division of the property and if the defect is removed at a period subsequent to partition, the right to partition takes effect by analogy of a son born after the death of his father. Ch. 8, para. 4 of the Vira Mitrodaya (Golapchandra Sarkar's Translation) contains a dearer rule of law applicable to both partition and succession. Sheo Singh having died in 1912, the case is not governed by Act 12 of 1928.
4. We think that the question is of great importance, particularly as there are various kinds of defects which constitute disqualification. We are therefore of the opinion that the following questions of law should be referred to a Pull Bench for determination : (1) Whether a person, who had not been a leper from birth, but was afflicted with leprosy of a sanious or virulent type at the time of the death of his father, became entitled to an interest in the joint ancestral property along with his brothers or not? (2) Even if he was disqualified from taking a share in the family property in the lifetime of his brothers, whether the property became vested in him if he happened to be the sole surviving brother so that he got the property and became a fresh stock of descent to the exclusion of the daughters of his last predeceased brother?
JUDGMENT
5. This is a defendant's appeal arising out of a suit for recovery of possession of certain house properties. It is sufficient to state that Kanhaiya Lal was the owner of the property, and on his death left two sons Sant Lal and Sheo Singh, and a third son Jai Kuar Mal who died issueless. Sant Lai died later, leaving a widow and two daughters, who are the present plaintiffs. Sheo Singh had not been a leper from his birth, but was certainly a leper at the time when Kanhaiya Lal died and died a leper. The defendants are representatives of certain collaterals of Sheo Singh. The plaintiffs claimed that on account of his leprosy Sheo Singh did not acquire any interest in this property at all and that accordingly on the death of Sant Lal, who was the sole owner, the property devolved on his widow and then on his daughters. The defendants however contended that inasmuch as Sheo Singh had not been suffering from congenital leprosy, he had an interest which devolved on his own legal heirs after his death. The case came up before two of us, who on account of the importance of the point involved referred the two following questions to this Full Bench for answers:
(1) Whether a person, who had not been a leper from birth but was afflicted with leprosy of a sanious or virulent type at the time of the death of his father, became entitled to an interest in the joint ancestral property along with his brothers or not?
(2) Even if he was disqualified from taking a share in the family property in the life-time of his brothers, whether the property became vested in him if be happened to be the sole surviving brother so that he got the property and became a fresh stock of descent to the exclusion of the daughters of his last predeceased brother?
6. The texts of the Mitakshara, which is of paramount authority in this province, are somewhat ambiguous on the main question which arises in this case. In Colebrooke's translation the texts of the commentary have been re-arranged under chapters and sections and paragraphs serially numbered, although such an arrangement does not find a place in the original. It will be convenient to refer to these by number. Ch. 2, Section 10 deals with the question of exclusion from inheritance. The commentator notes that the author has stated an exception to what has been said by him respecting the succession of the son, the widow and other heirs, as well as the reunited parcener. The original text of Yajnyawalkya is quoted:
An impotent person, an outcast, and his issue, one lame, a madman, an idiot, a blind man, and a person afflicted with an incurable disease, as well as others (similarly disqualified), must be maintained, excluding them however from participation.
7. Then certain terms are denned and certain explanations are added until we come to para. 6 where it is stated:
They are debarred of their shares, if their disqualification arose before the division of the property. But one, already separated from his co-heirs, is not deprived of his allotment.
8. Para. 7 says:
If the defect be removed by medicaments or other means as penance and atonement at a period subsequent to partition, the right of participation takes effect by analogy to the case of a son born after separation.
9. The text of Yajnyawalkya is then quoted:
But their sons, whether legitimate, or the offspring of the wife by a kinsman, are entitled to allotments if free from similar defects.
10. These texts and the comments leave no doubt in one's mind that there is a disqualification on a person who is suffering from an incurable disease, which is defined by the commentator as meaning an irremediable distemper, such as marasmus or the like. It is noteworthy that the commentary quotes a verse of Manu:
Impotent persons and outcasts are excluded from a share of the heritage; and so are persons born blind and deaf, as well as madmen, idiots, the dumb, and those who have lost a sense or a limb.
11. It is significant that as regards blind and deaf persons there is a qualification that they should be born blind and deaf, whereas there is no such qualification as regards madmen, etc. Thus there can be disease which is not only congenital but also one which has supervened, and in? either case there would be a disqualification. The difficulty is in trying to find out whether the disability merely means, that the person is disqualified from getting any interest in the ancestral property if he was disqualified at the time of his birth; or from getting an inheritance if he is disqualified at the time when the succession opens. The actual word used in the text is "daya," which the learned Judges of the Madras High Court in Muthusami Gurukkal v. Meenammal A.I.R. 1920 Mad. 652 at p. 469 refrained from trying to define. But it was pointed out by Coutts-Trotter, J. in Pudiava nadan v. Pavanasa Nadan A.I.R. 1928 Mad. 215 at p. 976 that the word has been defined in the Mitakshara itself as meaning both an obstructed as well as unobstructed inheritance see Ch. 1, Section 1, para. 3. The texts quoted from the Mitakshara make it quite clear that the case of a person suffering from an incurable disease is an exception to the right of succession dealt with by the author previously, and that such a person is debarred of his share, if the disqualification arose before the division of the property, but that one who had already separated from his co-heirs would not be deprived of his allotment, and that if at a subsequent period the defect be removed in any way, then the right of participation would take effect. It is further clear that although the disqualification attaches to the affected person directly, his sons, whether legitimate or not, are entitled to allotment if they themselves be free from similar defects. It would, therefore, follow that the disqualification is a personal one and disentitles the person suffering from the defect from claiming a share or allotment at the time of the division or the partition, and that his right is really in abeyance so long as the defect continues, and would be revived as soon as it is removed, and further that he can be a, stock of descent and his interest can devolve on his offspring. No text of the Mitakshara has been pointed out to us which would expressly lay down that the interest which a qualified person acquires by birth would be lost or divested by reason of a supervening disease. Of course if he was suffering from such a disease at the time when the succession opened in the case of collateral inheritance, he would be disqualified; but it does not follow that if the property had already become vested in him by reason of his birth, he would be deprived of an interest in the property by reason of his subsequent illness. In the absence of any clear text, one would prima facie be inclined to hold that the disqualification is merely personal and a temporary one, and does not involve an extinguishment of all interest in the property.
12. The learned Counsel for the respondent has relied on several cases which can be easily distinguished. In Ananta v. Ramabai (1875) 1 Bom 554, the only question was whether the incurable leprosy was of the sanious or ulcerous type contracted before partition in which event it would exclude the person afflicted with it from a share in the ancestral property. It was never held in that case that there was a complete extinguishment of all his rights. It may farther be noted that in that case Ananta who had been suffering from leprosy was alive and was a defendant to the suit. In Bapuji Lakshman v. Pandurang (1881) 6 Bom. 616, on the death of Bapuji he left two heirs Lakshman, who was born deaf and dumb, and Pandurang, his brother's son. The latter had subsequently sold a part of the property. Later Lakshman married and had a son, the plaintiff, who sued to recover his half share. The learned Judges pointed out at p. 621 that the law in this respect in Bombay was the same as in Bengal and that therefore they should follow the rulings of the Bengal High Court. If they applied the Dayabagha law, then of course the position would be different because on the death of Bapuji the property would be inherited by Pandurang only and would not devolve on Lakshman at all who was disqualified at the time that the succession opened. In Ram Ghulam v. Ram Sahai (1881) A.W.N. 121 the findings of the Court below were inconclusive. The learned Judges merely held that it is incurable leprosy only of the sanious or ulcerous type which, if contracted before partition, excludes the person afflicted with it from a share in the ancestral estate; and as there was no distinct finding by either of the lower Courts on the necessary points, issues were sent down for determination. The case is, therefore, clearly distinguishable.
13. Similarly, in Ram Soonder Roy v. Ram Sahye Bhugut (1882) 8 Cal. 919, a lunatic, a member of a joint Mitakshara family, was himself suing to recover the property belonging to the joint family, and it was held that as he was disqualified and was not entitled to a share or partition in the property, but only to maintenance, he could not sue to recover joint family property. The learned Judges were careful to remark at p. 922 that the plaintiff had no such right in the property in dispute as would entitle him to maintain this suit for the purpose of restoring it to the joint family. They did not lay down that he had no interest in the ancestral property at all or that any interest he might have acquired had been completely destroyed and extinguished. We then come to the Full Bench case of this Court, namely, Deo Kishen v. Budh Prakash (1883) 5 All. 509. In that case the learned Judges laid down in clear terms at p. 512:
When property has once vested by succession in the heir, his subsequent insanity will not be a ground for its resumption.
14. It was held that a person is disqualified under Hindu law from succeeding to property, if he is insane when the succession opens, whether his insanity is curable or incurable. In that case a person who had become qualified to succeed to a property was previously insane. It was held that he was not entitled to resume the property from an heir who bad succeeded to it in consequence of his disqualification when the succession opened. The case in Tirbeni Sahai v. Muhammad Umar (1905) 28 All. 247 really goes much further than the Full Bench case which it purported to follow. It was held in that case that a suit brought by a lunatic to recover possession of his share as a member of a joint Hindu family in certain house properties was maintainable if the lunacy wag not congenital but had supervened after his birth. This case appears to be contrary to the texts of the Mitakshara quoted above, is certainly inconsistent with several rulings of the Indian High Courts and does not lay down good taw. To hold that the supervening insanity would not divest the interest which the plaintiff had so acquired by birthright id one thing and to hold that the right to partition can be enforced while the insanity still lasts is quite another. The latter right is certainly denied to an insane member of a joint Hindu family by the Hindu law. In Man Singh v. Mt. Gaini A.I.R. 1918 All. 377, a person who had contracted the disease of leprosy subsequent to his birth was held not to be disqualified from dealing with his own property or from dealing with joint family property so as to bind his sons, provided the alienations were made for legal necessity. It is not necessary in the present case to consider the soundness of this ruling, as it appears to be doubtful whether a leper who is not entitled to claim a share on partition can alienate his share for legal necessity. But it may be pointed out that the only other coparceners were his sons and the property had been inherited by the father, who was suffering from leprosy, from his ancestors and the alienation had been made to discharge certain antecedent debts.
15. There are several oases of the other High Courts which are directly in favour of the appellant. In Muthusami Gurukkal v. Meenammal A.I.R. 1920 Mad. 652, it was held by a Division Bench of the Madras High Court that the right of a member of a joint Hindu family to share in ancestral property comes into existence at birth, and is not lost but is only in abeyance by reason of a disqualification, and that it subsists all through, although it is incapable of enforcement at the time of partition, if the disqualification then exists; and that therefore if on the death of all the other members the disqualified member becomes the sole surviving member of the family, he takes the whole property by survivorship. This case is directly on point, and we agree with the conclusion arrived at in that ruling. This case was followed by another Bench of the Madras High Court in Venkateswara v. Mankayammal A.I.R. 1935 Mad. 775. It was pointed out there that there was a distinction in matters of succession between a congenital disability and supervening disability. Supervening disability does not affect a right already vested by birth; and that accordingly a disqualified person may be a coparcener enough to take by survivorship. The Patna High Court in Mt. Dilraj Kuar v. Rikheshwar Ram Dube A.I.R. 1934 Pat 373, came to the conclusion that under the Mitakshara school of Hindu law a coparcener taking an interest in the family property by birth merely becomes incapable of enforcing his right to a share upon partition upon becoming afflicted with madness and does not lose all his coparcenaries interest by reason of the disability; and therefore where the disqualification supervenes later and the disqualified person is the sole surviving member, he takes the whole estate by survivorship.
16. The Bombay, High Court in a recent case in Vithaldas Govindram v. Vadilal Chhaganlal A.I.R. 1936 Bom. 191, has expressed the same view and held that under the Mitakshara School of Hindu law a coparcener taking an interest in the family property by birth, does not lose his status as a member of coparcenary interest by reason of subsequent lunacy, although his lunacy may disqualify him from asking for a share at partition, and that where therefore such a member becomes the sole surviving member of the family, he takes the whole property by survivorship. It is thus clear that there is a great preponderance of authority in favour of the view which has been expressed in this Court and according to which there is not a complete destruction of the proprietary interest of a member of the family who becomes a leper subsequently, but that the disqualification is a personal one and is Confined to his right of claiming a partition or being allotted a share at the time of division, so that if it so happens that there is no other coparcener left except himself and he becomes the sole member of the family and there has been no occasion for partition, he acquires the entire estate and becomes the owner of it, with the result that on his death it would devolve on his legal heirs and not on the heirs of the last deceased coparcener.
17. Our answers to the questions referred to us are (1) that a person, who had not been a leper from birth, but was afflicted with leprosy of a sanious or virulent type at the time of the death of his father, and had previously acquired an interest in the joint ancestral property by his birth along with his brothers, would not be completely divested of such an interest, though he would be disqualified from claiming a partition of his share or claiming an allotment of his share at the time of partition so long as his leprosy lasts, and (2) that in spite of the restricted disqualification under which he would labour, if he happens to be the sole surviving member of the family, then the property which had become originally vested in him by birth would belong to him, and he would become a fresh stock of descent" to the exclusion of the daughters of the last predeceased brother.