Aikman, J.:— This is an appeal from a decree of the Additional District Judge of Aligarh, affirming a decree of the Munsif of Bulandshahar. The suit, out of which this appeal arises, was brought to recover money secured by a mortgage, executed by one Ganga Ram, father of the defendant, Murli Singh, on the 2nd March, 1899. Ganga Ram is dead, and the suit is brought against his son, Murli Singh, and the widow of Ganga Ram. Amongst other defenses to the suit, a plea was put forward by Murli Singh to the effect that Ganga Ram, executant of the bond had become a leper, during his father's life-time and consequently did not acquire any rights in the property mortgaged. The courts below have found that Ganga Ram did not become a leper, during his father's lifetime and consequently did not acquire any right in the property mortgaged. The court below found that Ganga Ram did not become a leper, until after his father's death, and a decree was passed in favour of the plaintiffs. Murli Singh comes here in second appeal. The only ground urged before us is that when Ganga Ram became a leper after his father's death, he thereby lost all rights in the property, he had mortgaged. No plea to this effect is put forward in the written statement. Although this plea is one of those to be found in the memorandum of appeal to the lower court, it does not appear to have been urged in that court, as it is not touched in the judgment.
2. In our opinion this plea cannot succeed. In the first place there is no allegation in the written statement as to the nature of leprosy from which Ganga Ram suffered. The plea is based on the quotation from Yajnavalkya to be found in chapter II section 10 placiturn 1 of the Mitakshara. There it is said, in dealing with the subject of exclusion from inheritance, that “a person afflicted with an incurable disease, as well as others similarly disqualified, must be maintained excluding them, however, from participation.” As remarked by Mayne (Hindu Law 7th Ed., para 595) “Some cases of leprosy are of a mild and curable form whilst others are of a virulant and aggravated type and incurable. It is only the latter form of malady which causes inability to inherit”. Now in the first place, there was no allegation in the written statement that the leprosy from which Ganga Ram suffered was of a virulent and incurable type. In the next place, we have not been referred to any authority which would justify us in holding that a Hindu, after succeeding to an estate, is divested of this estate by contracting an incurable disease, and in the absence of any such authority, we decline to hold that this is the law.
3. The other grounds, in the memorandum of appeal to this Court, were not argued. The result is that we dismiss the appeal but without costs as the respondents are not represented.
G.LAppeal dismissed.