R. Muthammal & ANR Vs. Sri
Subramaniaswami Devasthanam, Tiruchendur [1960] INSC 4 (14 January 1960)
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.
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
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 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 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 heard 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, 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 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 be made and which appealed to the Subordinate Judge of Tuticor in, is
not borne out by the evidence in the case. Such a long and continuous course of
conduct clearly proves the contention that Ramasami Pillai was, in fact, 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 have felt the
need for asserting the claim on his behalf, if he himself did not do so. In
view of the fact that the preponderance of probabilities is in favour of the decision
of the High Court, we do not think that the appellant has succeeded in
establishing the distinction, which was made in the case, between a lunatic and
a person of weak intellect on the evidence, such as it is. This brings us to
the next contention which is one of law. It may be pointed out here that before
the Subordinate Judge, Ramasami Pillai did not raise the contention 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 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
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.
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