Barlee, J.:— The appellant applied for limited letters of administration in respect of certain property in the Ahmedabad District which, he said, belonged to one Vadilal Gulabji who died on 16th April 1912. At the date of his death he left a son Jivram, who was then a lunatic-though he does not appear to have been a congenital lunatic. Jivram was married and had a daughter called Bai Jashi. Bai Jashi married one Vadilal Chhaganlal and died on 16th June 1930. The petitioner presented his application on behalf of the lunatio Jivram since he had been appointed a curator of the lunatic by the Huzur Court of the Mansa State. The property in respect of which letters of adminisiration were asked consisted of certain shares in a company at Ahmedabad. The application was contested by Vadilal Chhaganlal, the husband of the deceased Bai Jashi, and the question on which the parties fought in the Court of the Assistant Judge of Ahmedabad was whether the lunatic Jivram was entitled no the estate of the deceased Vadilal Gulabji as his heir. The opponents' case was that Jivram was not entitled as he was a lunatic, and the learned Assistant Judge, following the case of 6 Bom 616 (1), decided that the lunatic Jivram was debarred from taking the property as the heir of the deceased Vadilal Gulabji and that the petitioner was therefore not entitled to letters of administration under Section 246 of the Succession Act.
2. The curator has appealed and Mr. C.K Shah on behalf of the respondents has taken a preliminary objection that the curator has no locus standi inasmuch as his appointment has been cancelled by the Huzur Court of the Mansa State. We have not all the papers here on this point; but it appears that the order of the Huzur Court of the Mansa State has been suspended and prima facie the appellant, V.G Gandhi, is still the curator. There would apparently be no objection to his being recognized by a Court in British India since he is the person who has been appointed by the Mansa Court and presumably the lunatic was domiciled in Mansa.
3. The decision on which the learned Assistant Judge has based his finding, 6 Bom 616 , was not directly in point. One Bapuji died, leaving him surviving Lakshman, his undivided son, who had been born deaf and dumb, and the defendant Pandurang, his undivided nephew. It was held that Lakshman was disqualified from inheriting and that therefore on Bapuji's death Pandurang had succeeded to the entire family estate and was competent to dispose of it; and that a son subsequently born to Lakshman could not recover any part of the estate sold from the purchaser. The present case is distinguishable on the ground that Jivram was not a congenital idiot and therefore did become a coparcener on birth whereas in 6 Bom 616 , the son never became a coparcener. The present case seems to us to be on all fours with that of 43 Mad 464 (2). One Gangadhara Gurukkal was entitled to an archaka office in a temple. Though he was born sane, he became insane after his son Subbayya attained his majority. During the period of Gangadhara's insanity Subbayya was doing the archaka service. Subbayya died in 1874. Gangadhara continued insane until his death, which took place in 1880. Subbayya's widow died in 1911 and Gangadhara's widow died in 1912. The plaintiff as the reversioner of Subbayya, the son, brought the suit against the daughter and daughter's son of Gangadhara for a declaration of his right to, and for possession of, the office of archaka. Defendants were the daughter and grandsons of Gangadhara and so they were sister and sister's sons of Subbayya. If the property belonged to Subbayya, the defendants being only the sister and sister's sons of the owner were excluded by the plaintiff. If, on the other hand, Gangadhara was the owner at the time of his death, the defendants, as his daughter and daughter's sons, would exclude the plaintiff. The question then was whether Gangadhara, on the death of his son, took the property as the last male holder of the family.
4. Their Lordships considered at length the Sanskrit texts and decided that the right of a member of Hindu joint 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. It subsists all through, although it is incapable of enforcement at the time of partition, if the disqualification then exists. Hence, 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 decision is directly in point; for here Jivram was a coparcener at birth, and though his lunacy would have disqualified him from asking for a share on partition, on the death of his father he became the last surviving male of the family. The learned Assistant Judge failed to notice that the Bombay case of 6 Bom 616 was distinguishable. It is of course binding on us so far as it goes. But it merely decides that the congenital deaf mute is not a coparcener and goes no further. We think that it would be dangerous to extend this principle by analogy to the case of members of a family who become disqualified by subsequent disqualifications. Both these cases have been considered by a Bench of the Patna High Court in 13 Pat 712 (3), where it was decided, following the Madras case, 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 coparcenary interest by reason of the disability. The case of 6 Bom 616 , was mentioned and distinguished on the ground, which I have noted, that it was a case of a congenital deaf mute.
5. Mr. Shah has drawn our attention to a Full Bench decision of the Madras High Court in 45 Mad 949 (4). That case merely decides that the rule of Hindu law that a congenitally blind person is excluded from succession has not become obsolete. It is not on all fours with the present case. The learned advocate relies on some observations of Coutts Trotter, J., at p. 976, where the learned Judge expresses the view that the role of exclusion in the Mitakshara applies to those who take by survivorship as well as to those who take by succession. This may be conceded; but it does not touch the main point whether a member of a family who becomes insane loses his status as a member of a coparcenary. On this ground we differ from the learned Assistant Judge.
6. Mr. Shah has raised another point. He seeks to put the appellant into a dilemma. If the family property be the separate property of Vadilal, the lunatic, he says, cannot claim it; whilst if it be joint property, there is no machinery by which he can be given a certificate under the Succession Certificate Act. But the answer to this is given in various decisions of our Court. In Bombay letters of administration are always granted in respect of undivided family property. The latest case is a decision of Kania, J., in 37 Bom LR 300 (5). A petition was filed for letters of administration of the joint family properties and credits standing in the name of one Govindji Khushal. No one objected that letters of administration could not be given of the joint family properties, and the order was that letters of administration should, issue to Ujambai for the use and benefit of her minor son Amritlal Govindji Khushal and limited to the period of his minority with the exception of the separate property of the deceased, is they were granted with respect to the joint family property only. In 28 Bom 644 (6), Jenkins, C.J, remarked (p. 646);
The point urged on behalf of the appellant is that the decased was, at the time of his death, joint in family and entitled only to joint property; so that letters of administration could not be granted, as though he had left separate property. But in Bombay it has been repeatedly held that on applications for probate the Court will not enter on a question as to the title to the property which the testator by his will purports to leave.
7. And letters of administration were granted. Our conclusion then is that the learned Assistant Judge was incorrect in his decision that the applicant was not entitled to letters of administration under Section 246 of the Succession Act, on behalf of the lunatic Jivram.
8. The appeal will therefore be allowed. The order of the learned Assistant Judge is set aside. The papers will be returned to him so that he may deal with the case in accordance with law. The appellant will get his costs of the appeal and the security given by the appellant is discharged.
N.J Wadia, J.:— I agree.
R.M/R.K
9. Appeal allowed.