BHARMAPPA BHARMAGAUDA Vs. UJJANGAUDA BHARMAGAUDA

JUDGEMENT

(1.) The facts, which have given rise to this appeal, are few and not now disputed. One Bharmagauda had a son of the same name, That son had two sons Basangauda, and Ujja,. The son (Bharmagauda) and the grandson Basangauda predeceased the father Bharmagauda. This Bharmagauda adopted the present plaintiff during the life-time of his grandson Ujja. This Ujja is found by the lower Courts to have been dumb from his birth. Bharmagauda died in 1885; and the present suit was Bled in 1916 by the plaintiff as the adopted son of Bharmagauda to recover possession of the property from defendant No. 1 (the grandson of Bharmagauda) on the ground that owing to dumbness and insanity he was disqualified to inherit his grandfather's property. The defendant No. 1 repudiated the allegations, and contended that the plaintiff's adoption was invalid. The allegation as to the insanity of defendant No. 1 was not proved: but it is found that from th3 time of his birth the defendant No. 1 was dumb and that his dumbness was incurable. The lower Courts held that the adoption of the plaintiff by Bharmagauda, the grandfather of defendant No. 1, was proved and that it was valid and accordingly decreed the plaintiff's claim.

(2.) In support of the appeal to this Court it is urged on behalf of the legal representative of defendant No. 1, who died during the pendency of the appeal in the District Court, that the defendant No. 1 was not disqualified according to Hindu law, and that even if he was disqualified, the adoption of the plaintiff by Bharmagauda during the life-time of the grandson was invalid.

(3.) As regards the first contention it is clear on the finding of facts that defendant No. 1 (Ujja) was dumb from his birth and that his dumbness was incurable. According to the Mitakshara such a son or grandson would be excluded from inheritance. No doubt Yajnavalkya does not mention a dumb person among those who are excluded from inheritance. But Vijnanesvara includes him in the list under the word adya on the authority of Manu. In the Vyavahara Mayukha also on the authority of the same text of Manu a dumb man is referred to as excluded from inheritance. It is urged, however, that this ground of disqualification, like several other grounds, has become obsolete, and the observations in Suvayya V/s. Subbamtna (1919) I.L.R. 43 Mad. 4 have been relied upon in support of this argument, it also appears that in Steele's Hindu Law and Custom it is stated at page 224 that "lame or deformed persons are not excluded, nor are the deaf and dumb". It may be that some of the grounds of exclusion from inheritance mentioned in the texts are obsolete. While I agree generally with the observations in the above case as to the hardship and obsolete nature of some of the grounds of exclusion from inheritance I do not see how all of them could be treated on the same footing. Each defect must be considered on its merits, and if it could be fairly and safely stated that it is obsolete it may be treated in that manner. But it would not be right, nor does it appear to me to be possible, in view of the decisions on the point, to treat all these grounds as obsolete.