PUDIAVA NADAN Vs. PAVANASA NADAN

JUDGEMENT

(1.) The question referred to the Full Bench is "Is a Hindu who is congenitally blind thereby excluded from the inheritance, or has the rule become obsolete?"

(2.) In Surayya V/s. Subbamma (1919) I.L.R. 43 Mad. 4 at page 16 Sadasiva Ayyar and Napier, JJ. answered this question by saying that the rule had become obsolete. This case having been tried before that decision was known, the point was not taken at the trial or on first appeal; but the appellant was allowed to raise the point by the Referring Bench. The Court was told in the course of the arguments that it is alleged that the man in question is not, in fact, congenitally blind and it will be for the Referring Bench to consider hereafter whether that matter is one which is now proper to be enquired into. For the purpose of this reference we must assume that he was congenitally blind and treat this case as, in effect, an appeal from Surayya V/s. Subbamma (1919) I.L.R. 43 Mad. 4 at p 16.

(3.) It is argued that under the Hindu Law, a congenitally blind man never was excluded from inheritance and secondly that, if there was a rule or custom to that effect, it has now become obsolete and is no longer law. It has long been established that in this Presidency the most authoritative statement of, what J may call, the Hindu Common Law is to be found in the Mitakshara, a commentary by Vignaneswara on the institutes of Yagnavalkya published about A.D. 1080. In Chapter II Section 10 the author quotes the text of Yagnavalkya as follows: "An impotent person or outcaste and his sons, one lame, a mad man, an idiot, a blind man, and person afflicted with an incurable disease, and others, (similarly disqualified) must be maintained, excluding them however, from participation. It is made clear by reference to the whole chapter that the author is here dealing with exclusion from the inheritance. I think the law as stated by him amounts to this: A man born blind does not become on birth entitled to a share in the family property, and, therefore, he gets no share at a subsequent partition; nor, if he is the sole surviving member of that family, does he acquire the property by right of survivorship; he is not, however, excluded altogether from an interest in the property because he is himself entitled to be maintained, and can transmit to his sons his full share in the property. But it is argued first that these directions are merely precepts or advice and not statements of law. It is true that there are precepts, given in the Mitakshara which either by reason of the words on which they are couched or by reason of the nature of the matter dealt with, have been held to be mere moral precepts, but I can find no such reason for holding that the statement of the exclusion of a blind man from the inheritance is anything but a statement of a rule of law. It is further argued that this statement of the law in the Mitakshara is a statement of the law as it had been in the past and not as it then was; and for this, reliance is plased on the writings of Visvarupa which were discovered in Malabar some few years ago. He is stated to have lived shortly before the author of the Mitakshara. He gives the same text from Yagnavalkya and in commenting on the text, without any suggestion that it is other than law, a passage occurs which has been translated as follows: "The blind and the rest, who are not outcastes, however, have a right to the grandfather's estate. Such is the custom." We have been referred to the Sanskrit and I have no doubt that the words which have been translated as have a right to the grandfather's estate I would be more properly translated as have an interest in the ancestral property and refer to what follows immediately, namely, the right to maintenance and the right to transmit referred to above. In my judgment when properly understood, there is no difference at all between the rules in question as stated in the Mitakshara and as published by Visvarupa, assuming that the published version is genuine. The next question is whether, assuming a blind man's exclusion to have been the law at the date of the Mitakshara it has since become obsolete. This, in my judgment, is a question of fact. A law does not cease to be operative because it is out of keeping with the times. A law does not become obsolete because it is an anachronism or because it is antiquated or because the reason why it originally became the law would be no reason for the introduction of such a law at the present time. To hold the contrary in my judgment, would be an entire misunderstanding of the meaning of the legal maxim cessat ratio cessat lex which is relied upon in support of the contrary contention. If authority were required for this proposition, it is to be found clearly stated by their Lordships of the Privy Council in Rao Kishore Singh v. Mussamat Gahenabai (1919) 37 M.L.J. 562 at p. 574 in the following words: "Their Lordships therefore are of opinion that the principle embodied in the expression cessat ratio cessat lex does not apply where the custom outlives the condition of things which gave it birth." In Surayya V/s. Subbamma (1919) I.L.R. 43 Mad. 4 at p. 11 Sadasiva Aiyar, J. dealing with the matter now under consideration says, I need not say that a rule becomes obsolete when the reason of the rule disappears through change of circumstances and environments in the society which was governed by that rule , and Napier, J. at P. 31 agreeing with that judgment says that owing to improved methods of education there is no reason why such a disqualification should still continue and that it was open to the court to enunciate this rule by declaring the law to be obsolete. In my view, this involves a fundamental error in considering the question and vitiates the whole of the judgments in that case. In considering whether the custom has become obsolete in the sense of its having ceased to exist, the fact that it is an anachronism may be a proper matter to be taken into consideration, if there were evidence both ways, in weighing that evidence, but otherwise it is of no importance. In this case, in my judgment, the evidence is all in favour of the custom having continued. There is no oral evidence before the Court and no statement of any text writer or any judgment to which our attention has been called that this custom has become obsolete in the sense of its having been discontinued. The only semblance of evidence that the rule has become obsolete is to be found in Steele's "Law and customs of Hindoo castes," published in 1826, at page 224 where he states that as a result of enquiry among about 100 castes above Poona, it was the practice in 72 of them that blind persons may take their share if married and if they have a family. Assuming this to be evidence, it is probably only an attempt to state the law as to the transmissibility of a share through the blind man. But even if it be as stated that in 72 castes in that district, the law had been modified by custom, it is of no value as establishing a custom to admit the blind man to a share in this Presidency.