Wort, J.:— This is an appeal by the defendant in an action in which the plaintiffs succeeded in the trial court in establishing their right as the nearest heirs of the last male holder of the Loro Estate, who, according to the plaintiffs, was one Ram Sundar.

The case of the first defendant, who was the only contesting defendant, was that Ram Sundar was insane and died in that condition, and that in the events which happened the estate never vested in him but in Janardan, Ram Sundar's step-brother, who predeceased Ram Sundar, leaving his widow Saraswati and mother Musammat Dilraj Kuari as his heirs.

The common ancestor was one Ghasiram who had two sons Motiram and Ratiram. Motiram was the great great grandfather of Ram Sundar and Janardan. Ram Sundar was the son of Raghunath by his first wife Deoki Kuar, and Janardan the son of Raghunath by his second wife Dilraj Kuar. The third defendant in the action is the Manager of the Court of Wards who has been the Manager of the estate for many years, indeed since the time that Raghunath the father became insane. The plaintiffs are the great great grandsons of Ratiram who was the second son, as I have stated, of the common ancestor Ghasiram.

The questions that were argued in this Court were first that under the Hindu law Ram Sundar being born insane acquired no interest in the estate by birth. Alternatively becoming insane he lost all interest in the family estate. A third case on the point of insanity was that Ram Sundar although not insane at the time of the death of his father became insane before the death of Janardan, his step-brother. But whether he was insane at the death of his father or at the death of Janardan, in my judgment, makes no difference to the question of law to be decided. There was a further alternative case that Ram Sundar had separated from his father and had no interest in the estate, but this is not supported by any evidence.

The appellant relied on a letter from the Deputy Commissioner of Ranchi (in 1929) in which it was stated that this contention of having separated, was put forward at that time. This is clearly not evidence against the plaintiffs. The Khewat of mauza Loro recorded the manager of the Court of Wards in possession on behalf of Raghunath Ram Duhe and of Ram Sundar. First, the Khewat cannot be treated as evidence of the status of the parties mentioned; and secondly, as it is not the contention of any of the parties that the Court of Wards was in possession of more than one estate, the mere mention of the Manager being in possession for two persons certain does not support the allegation of the appellant that Ram Sundar and his father were separate. It is not disputed that Ram Sundar was messing separately from his father for reasons which do not appear and new fore the evidence of Dilraj Kuar that Ram Sundar lived separate from her adds nothing to the defendant's case on this point. The decision of the Subordinate Judge on this question seems to me to be unassailable.

The substantial point relates to the insanity of Ram Sundar. It was contended that he was a congenital idiot but the evidence did not entitle the appellant seriously to press this point.

The learned Judge in the Court below has held on the evidence that the defendant failed to prove that Ram Sundar was ‘completely mad at the time that his father died’, but the learned Judge proceeded to hold that had he been so he was not excluded front the succession. It is on he basis of his, being insane at the death of Raghunath, his father, or on the death of Janardan that the parties have been content to argue their case.

The family was governed by the Mitakshara and the defendant's case therefore depends upon the construction to be placed upon Chapter II, section 10, placitum 6. (Colebrook's translation), placitum 6, is as follows:—

“They (referring to disqualified person mentioned in placitum 2, impotent persons, an outcast, etc., a man affected by any of the various sorts of insanity) are debarred of their shares if their disqualification are before the division of the property. But one already separated from his co-heirs he is not deprived of his allotment.”

In substance the argument is, on the analogy of the cases relating to impartible estates, that the right of property in the estate under the Mitakshara is so connected with the right to partition that does not exist where there is to right to it—[Sartaj Kuari's case]. As the disqualification resulted in there being no right to partition under placitum 6, and there being no right, to partition, it involved a complete disqualification and Ram Sundar having no right of coparcenary, nothing would go to the plaintiffs. The argument, is put in another form; Ram Sundar on being afflicted with insanity from which he never recovered, suffered civil death and being in that state at the time of Janardan his brother's death, the whole of the property went to the widow and mother of Janardan. As a further alternative, the property having once vested in Janardan, Ram Sundar being insane at the death of his father, it could not divest and for this proposition reliance is placed upon the case of Bapuji Lakshman v. Pandurang.

Against these contentions it is said by the respondent that on the birth of Ram Sundar he not being disqualified at the time, an interest in the estate vested and although insanity supervened and Ram Sundar was disqualified from taking a portion on partition, had there been one, that right was merely in abeyance but his rights as a coparcener were not otherwise affected. Placitum 7 of the same Chapter and section provides:

“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) when the sons have been separated one who is afterwards born of 3 woman equal in class shares the distribution.”

The appellant asks the Court to go back to the text of Manu (Max Muller, Sacred Books of the East, Inheritance by Geo. Buhler) Volume XXV, page 372, paragraph 201 which says “Eunuchs and outcasts persons born blind or deaf, the insane, idiots and the dumb as well as those deficient in any organ (of action or sensation) receive no share”, and it is suggested that this must be taken as meaning that the idiot or insane are share less, in other words, they never share and are not in any sense co-parceners. One other argument put forward on behalf of the respondent based upon this text was that insanity must be congenital. This was not persisted in in—this connexion see the case of Deo Kishen v. Budh Prakash. We are, however, to ascertain the position from the Mitakshara, the school to which the parties belong and in any event the view contended for adds nothing in my judgment to the case. The text of Mitakshara is silent as to whether the disqualified person loses his right as a coparcener or merely his right to partition and therefore it is the, argument that it must be construed as meaning that his right as a coparcener disappeared on his becoming disqualified. Any other argument, it is contended, would result in there being a casus omissus.

Placitum 9 which allows to the sons of a dis-qualified person a right on partition is said to be confined to sons alone. Therefore the plaintiffs not being sons can get nothing. One view put forward is that if at the time at which disqualification supervenes he does not lose his right as a coparcener (excepting of course the right to a share) there would appear to be no reason why he should lose merely the right to partition. As I have already stated, the appellant relies on the principle stated in Sartaj Kuari v. Deoraj Kuari where their Lordships of the Judicial Committee of the Privy Council stated (the passage to which I have already referred) “The property in the paternal or ancestral estate acquired by birth under the Mitakshara law, is, in their Lordships' opinion, so connected with the right to partition that it does not exist where there is no right to it”.

It is said, therefore, that as the right to partition ceased to exist in the case of Ram Sundar on his becoming insane it necessarily followed that his right which ordinarily he would have acquired by birth disappeared with it. But the case relied upon was admittedly one relating to an impartible estate, and their Lordships were not dealing with the case of a disqualified person. Indeed in dealing with the arguments of one of the parties and with certain decisions relied upon, their Lordships observed that the cases must be understood with reference to the questions which were then before them, and they were also careful to point out that although an impartible estate may be for some purposes spoken of as joint family property, a coparcenary in it which under the Mitakshara law is created by birth does not exist. Nothing in my judgment, an be gained from the statement of a principle which was intended by their Lordships to apply only to the class of case in hand.

The other case relied upon by the appellants was Rama Rao v. Rajah of Pittapur which was also a case of an impartible estate and in which their Lordships said there, was no coparcenary.

In the case before us Ram Sundar acquired an interest in the estate. The question therefore is the narrow one—whether his right as a coparcener is so affected by the supervening disqualification as to prevent his taking the whole estate by survivorship after the death of his step-brother.

The Mitakshara being silent on this matter, a great part of the argument has been concerned with a number of authorities in India which have dealt with the point and in the first place it is said that the case of Bapuji Lakshman v. Pandurang can be explained only on the assumption that a person in the position of Ram Sundar lost his rights as a coparcener on his becoming insane. In that case it was held that the plaintiff who was the minor son of a man who was disqualified by being deaf and dumb could not recover property of which his great uncle had become sole proprietor, on the death of his co-sharer, the grand-father of the minor son, on the ground that the property having vested in possession in the grand uncle could not be defeated by the subsequent birth of the plaintiff. But the case was however one of a congenital defect which distinguishes the case from the present and it must be noticed that the learned Judges relied upon the case of Callydoss Doss v. Krisen Chander Doss which was admittedly a Bengal case in which Sir Barnes Peacock in the course of his judgment relied upon the Dayabhaga, Chapter I, Verse 5.

The case of Ram Sahay Bhukkut v. Lata Laljee Sahay offers no assistance to the appellant's case as a the success of the disqualified plaintiff would have involved a right to partition which admittedly he was not entitle to under the Mitakshara, and it was on that principle that the case was decided. The Madras case of Pudiava Nadar v. Pavanasa Nadar was a case of congenital blindness and the question submitted to the Full Bench was—

“Is a Hindu who is congenitally blind thereby excluded from the inheritance, or has the rule become obsolete.”

It was decided that the rule was not obsolete and that the plaintiff was excluded. The case may be explained, so far as it decided that the plaintiff was excluded, on the ground that a decision in favour of the plaintiff would have involved a partition as the other surviving members of the family had sold the property in dispute to the defendant. However, that was not the reason which was stated as being the basis of the decision. The Madras High Court, however, has considered the point in dispute in the case of Muthusami Gurukkal v. Meenammal. An insane father who was entitled to the Archaka office survived his son who during his lifetime and during his father's insanity performed the duties of the office. After his death the duties were performed by his mother, the wife of the disqualified person. The plaintiff was the reversioner of the, son the defendants were the daughter and the daughter's, son. The decision was that the coparcenary rights of a disqualified person were not extinguished by the disqualification but were merely in abeyance and that if the disqualified person was the sole surviving member then he took the whole by survivorship.

The argument that the property having vested cannot divest is used both by the appellant and the respondent each for his own purpose. The appellant argues that as it vested in Janardan during Ram Sundar's lifetime, after Janardan's death he could not divest but would go to Janardan's heirs and for this the case of Bapuji Lakshman v. Pandurang is said to be an authority. I have already dealt with that.

The respondent, relying upon the case of Deo Kishen v. Budh Prakash contends that an interest vested in Ram Sundar at birth and although a right to a portion was in abeyance the right acquired by Birth subsisted throughout and could not at any time divest.

From the facts, as far as they appear, Deo Kishen's case would appear to be one of an estate vesting in a Hindu widow at her husband's death and that the supervening disqualification was held not to result in its divesting. The term ‘vesting’, however, seems to me to be inappropriate to anything but to a case of inheritance but may be loosely used in relation to the right acquired by the birth of a person born into a joint Hindu family. The text, as I have, said, is silent, but there are indications to be got from placitum 10 which is—

“The sons of these persons, whether they be legitimate offspring or issue of the wife, are entitled to allotments, or are rightful partakers of shares; provided they be faultless or free from defects which should bar their participation, such as impotency and the like.”

In my judgment there is nothing in the Mitakshara which, would entitle us to hold that on the death of the other co-sharer Janardan, Ram Sundar would not take the estate as the sole surviving member of the coparcenary and the view taken in the Madras High Court is the correct one, the case of Muthusami Gurukkal v. Meenammal being correctly decided.

In those circumstances the appeal fails and must be dismissed with costs.

Dhavle, J.:— I agree that this appeal should be dismissed with costs.

It appears that Raghunafji Ram was born about 1858 A.D By his first wife Deoki Kuer he had a son Ram Sundar, whose relatives applied to the Court of Wards for the protection of the estate on the ground that he was a minor, at or about the time the Judicial Commissioner of Chota Nagpur adjudged Raghunath to be a lunatic under Act XXXV of 1858 and asked the Court of Wards to take charge of Raghunath's Loro Estate. The Court of Wards took charge of the estate in 1897 or 1898, and went on managing it for both Raghunath and Ram Sundar till Raghunath's death in 1916. By his second wife, the appellant Dilraj Kuer, Raghunath had a son, Janardan, who was born after the estate had been taken over by the Court of Wards. After Raghunath's death Dilraj asked the manager of the Court of Wards to enter in his papers the name of Janardan also, Ram Sundar a name having been already, entered in them in lieu of Raghunath Ram's. The application was allowed, and the Court of Wards managed the estate on behalf of both these persons. Janardan died in June, 1928, and Ram Sundar died about 9 months afterwards in the Indian Mental Hospital a Ranchi. An attempt was made below and has also been made here on behalf of the appellant to show that Ram Sundar was separated from his father and that therefore upon Raghunath's death the estate came to Janardan alone; in that event Janardan's widow, defendant no. 2, would take the property on his death, and the plaintiffs, as reversioners, would take nothing at all until after the death of Janardan's widow and also of Janardan's mother, the appellant, should she survive the widow. The separation, however, is not proved. The Court of Wards managed the estate on behalf of both Raghunath Ram and Ram Sundar, and managed it as one unit. Why they should have managed the estate on behalf of Ram Sundar also does not appear very clearly, buff apparently Ram Sundar had just ceased to be a minor about the time they took the estate over and it was Ram Sundar's maternal grand-father and father-in-law that appear from the evidence of the appellant to have mowed the Court of Wards to take charge of their estate on the ground that he was a minor, the father being judicially found to be a lunatic. The evidence of the appellant is that Ram Sundar was joint with his father till his wife came, and the learned Subordinate Judge has apparently accepted the evidence of Ramprasad Ram Dube, P.W 3, and the appellant herself that Ram Sundar began to live with his father-in-law

“being not on good terms with his step-mother and grandmother”.

That does not mean a separation in estate. The khewat which shows both Raghunath and Ram Sundar separately as under the manager of the Court of Wards is no more evidence of the real status of the parties than is the obviously loose description by officers of the Court of Wards of Raghunath Ram as the sole proprietor of the estate. The Court of Wards apparently let Ram Sundar have some land for his maintenance, as often happens in stich cases. The finding of the learned Subordinate Judge on issue no. 5 must, therefore, be affirmed.

Mr. De has also endeavoured to show that Ram Sundar became insane before the death of his father Raghunath, the argument being that as a consequence of this Janardan took the estate to the exclusion of Ram Sundar. The only support for Mr. De's contention of fact is the statements of Ramprasad Ram Dube; P.W 3, that Ram Sundar died three years after Janardan's marriage and that, he became mad 9 or 10 years before Janardan's marriage. We know definitely that Janardan died in June, 1928, and an easy computation from the witness's statements shows that Ram Sundar must have become mad in 1915 or 1916. In my opinion, the evidence is not of a kind to warrant such a computation; the witness has but a vague idea of time, and has also definitely said, earlier in his cross-examination, that

“Ram Sundar did not become mad in the lifetime of his father. He was perfectly sane when his father died. Ram Sundar became a little mad 3 or 4 years after his father's death. He became fully mad 6 or 7 years after his father's death”.

Nothing was apparently said about Ram Sundar's madness when the appellant asked the manager to add Janardan's name in his papers on Raghunath's death. Mr. De criticises the finding of the lower court that the defendant has failed to prove that Ram Sundar was completely mad at the time when Raghunath died, and has contended that the Mitakshara (by which the parties are said to be governed) does not require complete madness for exclusion from inheritance. The Mitakshara does not define the degree of insanity but merely suggests a distinction between madness and idiocy apparently based on the stability of the disorder. The degree, of insanity is, however, immaterial from the point of view from which the learned Advocate has argued this part of the appeal for whether Ram Sundar was mad at the time of his father's death or became so sometime after, Janardan would, upon the occurrence of that event, become the owner of the estate to the exclusion of Ram Sundar, according to the argument advanced before us, and further, on Janardan's death the estate would be taken by his widow, Ram Sundar being clearly mad at the time of Janatdan's death. The real question thus is whether or not Ram Sundar ceased to be a ceparcener of Janardan's upon becoming mad, whenever that event may have happened.

Upon this question, Mr. De has taken us into the Mitakshara (Colebrooke II. x) and a number of reported decisions in support ??? the contention that Ram Sundar's madness meant not only incapacity to claim a share of the estate but the entire loss of his position as a coparcener, and apart from the liability of the holder of the estate to maintain him, a condition amounting to civil death. In Callydoss Doss v. Krissan Chunder Doss Sir Barnes Peacock, C.J, observed, “If that which occasions an extinction of property is, by reason of analogy, included under the term “demise,” it seems to me to follow that by analogy a person incapable of inheritance on account of blindness or the like is, so far as inheritance is concerned, in the same position as if he were not in existence, although as far as maintenance is concerned, he and certain members of his family have a claim upon the heir; and thus it is that as regards inheritance, though not as regards the obligation of maintenance, the son of that person may take by relationship derived through his father in the same, manner as if his father were dead”. This was, however, said in a case governed by the Dayabhaga, which defines heritage to be “wealth in which property dependent on a relation to the former holder arises on the demise of the owner”, while the Mitakshara doctrine resting on Gautama's text “let ownership of wealth be taken by birth”, is characteristic of this school, and care is taken (Colebrooke II. x. 10) to show that a father's disqualification does not work the disinherison of his sons who do not under the Mitakshara require to wait for the father's “demise” before taking any interest in the property. Vijnaneshvara introduces Yajnavalkya II. 140 (numbered 142 in Colebrooke's edition) on the exclusion of “an impotent person, an outcast and his issue, one lame, a madman etc.,” with the remark that the author states an exception to what has been said by him respecting the succession of the son, the widow and other heirs, as well as the re-united parcener (Colebrooke II. x. 1). In the next placitum several words in Yajnavalkya's verse are explained. Vijnaneshvara then gives quotations from Vasishtha and Narada and Manu (IX. 201), and in placitum 5 we find him laying down

“These persons (the impotent man ??? rest) are excluded from participation. They do not share the estate. They must be supported by allowance of food and raiment only; and the penalty of degradation is incurred, if they be not maintained. For Manu says…………’…(quoting Manu IX. 202)”.

Mr. De has laid stress on the sentence “they do not share the estate” in Colebrook's rendering (rikthabhajo na bhavanti in the original), and has contended that Yajaavalkya's verse like Manu IX. 201 was taken to mean the loss not merely of a right to obtain a share in the estate but also of all coparcenary interest in the property. But the coparcener (unless, congenitally disqualified) must under the Mitakshara have taken an interest in the ancestral property by birth, and Vijnaneshvara says in the next placitum

“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”.

The placitum speaks of “division” (vibhaga), and the Mitakshara definition of division, found in I. 1, 4 is, as is well-known, framed on entirely different lines from the Dayabhaga. Division, according to the Mitakshara, may be made by the father, or in certain contingencies by the sons in the lifetime of the father, and may also be made by the soms upon the death of their father; but the mere death of the father does not spell vibhaga among the sons. It may also be observed that Vijnaneshvara's rule that one, already separated from his co-heirs, is not deprived of his allotment shows that supervening insanity is not taken to involve incapacity to hold property, when the sufferer has no coparceners. In the next placitum, it is laid down that

“If the defect be removed by medicaments or other means, at a period subsequent to partition, the right of participation takes effect by analogy (to the case of a son born after separation) when the sons have been separated, one, who is afterwards born of a woman equal in class, shares the distribution.”

The disqualification for taking a share may thus be temporary, and the partition may have to be reopened on the removal of the disability by medicaments or other means such as penances and atonements (as mentioned in the Balam-Bhatti); the analogy of the after-born son is not intended to convey that the coparcener should to recovery be regarded as re-born but to supply an apparent authority for obviating injustice. Various reasons have been suggested by the commentators for the exclusion of the impotent, the outcast, the lame, the madman, etc., but the Mitakshara itself indicates none except, of course, the authority of the texts of Yajnavalkya and others. The parties before us are said to be Brahmins from Kanauj and yet it is not claimed that they are governed by the Benares School of the Mitakshara. It may, however be noticed that the Viramitrodaya (a Benares authority) gives one reason in placitum 4 in Chapter VIII (Golap Chandra Sarkar's edition),

“because it is by reason of the defects that they were disqualified to share”,

but suggests another in placitum 10 (11 in the English translation),

“the free ownership of the paternal property forms the remuneration of one who performs the duties of a son therefore, should one that neglects them have a fight to that remuneration?”

I agree with Seshagiri Ayyar, J. that an examination of the reasons for, the exclusion of madmen and the like does not help us much in deciding on the Mitakshara whether 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 or loses all his coparcenary interest by reason of the disability. Mr. De has urged on the authority of the observation of their Lordships of the Judicial Committee is Sartaj Kuari's case that “the property in the paternal or ancestral estate acquired by birth under the Mitakshara law is…………so connected with the right to a partition that it does not exist where there is no right to it”. This observation, however, had reference to the impartible character of the estate; and seems to be entirely inapplicable to the property of an ordinary Mitakshara family, especially where interest has already arisen by birth. Exceptions to the general principles of inheritance, it has often been remarked, must be construed strictly, and must not be extended by analogy to cases not clearly covered by the words. From this point of view it seems to me that Vijnaneshvara's comment on Yajnavalka II. 140, taken with what he says on the next verse also, ought to be confined to vibhaga in the sense of division or partition without extending it to cases where there is no question of partition at all. In any opinion the coparcenary right of Ram Sundar to the Loro Estate that came into existence at birth subsisted all through, although one component of it—the right to obtain a share on partition—would have been incapable of enforcement if after Ram Sundar's madness Janardan had attempted partition. It follows that from the time of his madness onwards, whenever it may have supervened, Ram Sundar still continued to be a coparcener, though without the right to take a share upon partition during the continuance of his disability. Upon Janardan's death Ram Sundar would thus be the only member of the coparcenary left, and there being then no question of any partition, would take, the whole estate. The property could not, therefore, devolve upon Janardan's widow as his heir, as would have been the case if Janardan had been separated from Ram Sundar or could have been regarded, upon Ram Sundar's madness, as the sole owner of the estate. Nor could there be any question of the appellant taking the property as the heir of her son after the death of his widow who has entered into a compromise with the respondents. This was the view that was taken by Seshagiri Ayyar, J. in Muthusami Gurukkal v. Meenammal where Gangadhar, the father, became insane and survived his son Subbayya, and the question being whether the reversioner of Subbayya was entitled to the property against Gangadhar's daughter and daughter's son, it was held that in spite of his insanity Gangadhar continued to be a coparcener with his son and became the sole owner of the property on the son's death so as to transmit it to his daughter and daughter's son. The learned Judge has discussed the Calcutta and Allahabad decisions on the point and shown how they support his view. The Bombay cases cited by Mr. De [Bapuji Lakshman v. Pandurang and Pawadewa v. Venkatesh Hanmant Kulkarni] do contain some observations favourable to the appellant but are distinguishable on the facts a congenital disqualification may conceivably, prevent property arising by birth, but a disqualification that supervenes later will merely cause a suspension of the right to a share upon a partition and for the rest leave the coparcenary interest intact, the Mitakshara saying nothing about any “divesting” in such a case. The issue framed below.

“Was Ram Sundar a born lunatic and idiot and hence disqualified from succession?”,

such as it is, must therefore be answered in the negative in all its branches. The learned Subordinate Judge finds that

“even if Ram Sundar was fully insane at the time when Raghunath died, he succeeded to the property by right of survivorship along with his brother Janardan as a coparcener, although he had no right to enforce it by partition, and when Janardan died, Ram Sundar as the sole surviving member of the family became the owner of the entire estate by survivorship”.

This, in my opinion, is substantially right. The Dayabhaga view that a disqualified member may be regarded as dead is inconsistent with the Mitakshara doctrine of property by birth, taken with the absence of any authority in the Mitakshara itself (we have not been referred to any) showing that the entire right by birth is destroyed by a supervening disability.

Appeal dismissed.