KRISHAN CHANDRA DAS Vs. KALIDAS DAS AND OTHERS

JUDGEMENT

(1.) The question I have to consider is whether, under Hindu law, on the death of Pyari Mani, the estate of Deochandra vested absolutely in Gurudas, so as to exclude any after-born son of Bireswar; or whether Krishan Chandra, on his birth, became entitled to the share of Bireswar, as heir of his grandfather. The Advocate-General contended that, on the death of Pyari Mani, the estate of Deochandra became vested in Gurudas, and could not, subsequently, be divested; and he referred, in support of that position, to a recent case decided by the Privy Council--Bhoobun Moyee Debia v. Ramkishore Acharj (: 10 Moore, I.A., 279). But the decision of the Privy Council does not proceed upon any rule of such wide application as that contended for by the Advocate-General. The case should be compared with that of Sham Chunder v. Narayni Dibeh (1 Sel. S.D.R., 209), with which it does not conflict, and in which the late Sudder Court decided that an estate which has descended to a collateral heir may be divested in favour of a son afterwards adopted.

(2.) The text of Manu is as follows, Chap. IX, sloka 201:--"Eunuchs and outcasts, persons born blind or deaf, madmen, idiots, the dumb, and such as have lost the use of a limb are excluded from a share of the heritage." Yajnavalkya says: "An outcast and his son, an eunuch, one lame, a madman, an idiot, one born blind, and he who is afflicted by an incurable disease must be maintained without any allotment of shares (Col. Dig., Book V. Art. CCCXXXI)."

(3.) Now the first question that occurs is, whether the share of the inheritance, which but for their defects such excluded persons would have taken, does vest absolutely in the heirs. The passage of Yajnavalkya is remarkable, and is certainly capable of bearing the construction that the share of an excluded person will remain unallotted, or as it were in abeyance, and will not pass to the other heirs. It certainly does not vest absolutely in them. Yajnavalkya shows that not only is the excluded person to be maintained, but his wife is to receive maintenance. His daughters also are to be maintained until their marriage, and the expenses of their nuptials are to be defrayed. (As to this latter point, see Mitakshara, Chap. II, Section 10, verse 13). Manu says, Chap. IX, sloka 203. "If the eunuch and the rest should at any time desire to marry, and if the wife of the eunuch should raise up a son to him by a man legally appointed, that son and the issue of such as have children shall be capable of inheriting."