Deo Kishen v. Budh Prakash

Straight, Oldfifld, Brodhurst and Tyrrell, JJ.:— The subject of exclusion from inheritance is treated of in Ch. ??? sect X., Mitakshara, and verse 1 includes, among persons who are disqualified from succession, a madman and an idiot; and in the 2nd verse a “madman” is explained to be one affected by any of the various sorts of insanity proceeding from the air, bile or phlegm from delirium or from planetary influences, and an “idiot” is said to be a person deprived of the internal faculty, meaning one in capable of discriminating right from wrong. The fact that some distinction is drawn between idiot; and madness and the definition given to the letter form of insanity in the 2nd verse, would certainly imply that the insanity which excludes from succession is not necessarily congenital and taken with the 6th verse—“They are debarred of their shares if their disqualification arose before the division, of the property” the inference may be drawn that insanity existing at the time the succession opens is sufficient to exclude from inheritance.

The Smriti Chandrika, which is a work of some authority on this side of India, when not opposed to the Mitakshara, is very explicit. In Ch. V., verse 9, it is stated:— “It must be under, stood that such as appear at the time of division to have been afflicted with impotence &c., are excluded from their shares, and that the exclusion is not confined to, those only that are naturally (that is by birth) impotent, or the like.” Nor does it appear necessary that the insanity be incurable, for the 7th verse of the same Ch. II., sect Mitakshara, clearly, contemplates the case of a cure, and provides that “if the defect be removed by medicaments and other means (as penance and atonement at a period subseqeunt to partition, the right of participation takes effect;” and this rule is clearly expressed in the 4th verse of Ch. VIII., Viramitrodaya:—“If subsequently (to partition or succession) their defects are cured by medication or the like, they become entitled to obtain their share; and this is reasonable, because it is by reason of the defects that they were disquaified to share.”

As the disqualification arises with reference to incapacity to perform religious ceromonies for the deceased, it is reasonable to suppose that it would have effect, if it exists at the time the succession opens, and without reference to the incurability of the disorder.

But when property has once vested by succession in the heir his subsequent insanity will not be a ground for its resumption. On this point Viramitrodaya, Ch. VIII., verse 4, is explicit. After stating that the exclusion takes place if the disqualification occur previously to succession, the author proceeds—“but not also if Subsequently to partition or succession;, for there is no authority for the resumption of allotted shares.” And on the same principle that property once vested cannot be divested, although a person previously insane will become qualified to inherit property on the defect being removed, he cannot resume it from an heir who has succeeded to it in consequence of his disqualification when the succession opened, and the property will thenceforward follow the line of succession under Hindu law.

No decision of this Court on this subject has been brought to our notice, but the view we take is in accordance with decisions of the Calcutta. Court reported in 9 Bengal Law Reports, pages 198, and 204, and other cases referred to in Mayne's Hindu Law.

Stuart, C.J:— I concur generaly in the conclusion arrived at by my coleagues in this reference. The Hindu Law on exclusion from inheritance is, on the authorities relating to it, so vague and uncertain as to many of its details, that a satisfactory examination of the whole subject, showing in clear terms what the law really is, would be attended with no little difficulty. Such a field of inquiry, however, is unnecessary in the present case, and what we have to do, I apprehend, is to return swell an answer as will enable the Judges of the Division Bench, from whom the reference comes, to decide the appeal.

Two conclusions, or theses, however appear plainly discernible from the various texts. The first is, that congenital insanity, or, as it is otherwise termed, idiotcy, disqualifies and excludes. The Second is, that supervening insanity existing at the time that the succession opens, and the property vests in another, also excludes. That such is the Hindu law very sufficiently appears and the principle of it is well stated by Mr. John D. Mayne in his excellent treatise on Hindu Law and Usage, 1878, page 513, where he says:—“The Hindu Law never allots the inheritance to be in abeyance, and if he is not capable of succeeding at the time the descent takes place, the subsequent removal of his incapacity will not enable him to dispossess a person whose title was better than his while the defect existed, though inferior to his own after the defect was removed.” And in support of this doctrine he refers to a Full Bench ruling by the Calcutta High Court, temp. Peacock, C.J, who delivered the judgment, the case being Kalidas Das v. Krishan Chandra Das . And the law so laid down applies to females as well as to males.

It is not suggested that the insane person, who is a woman was so from her birth, and even if she was, such insanity of a Hindu woman does not appear to disqualify her for marriage. On this subject Mr. Mayne, basing his opinion on the institutes of Manu, Ch. II., sects. 66 and 67, says:— “A Hindu marriage is the performance of a religious duty, not a contract;” adding, “therefore the consenting mind is not necessary, and its absence, whether from infancy or incapacity, is immaterial and see on the same subject the same Institutes, Ch. VIII, sect. 205. But in the present case it is distinctly found on the evidence that she was insane at the time of her husband's death. That being so, she could not, according to Hindu Law, take the property as his heir, and applying this conclusion, the Division Bench will have no difficulty in disposing of the appeal.