SUBBA NAIDU Vs. VENKATRAMA NAIDU

JUDGEMENT

(1.) The only questions in this second appeal are 1. Whether the learned District Judge fell into any error of law in finding on the evidence that the plaint lands were joint family properties in the hands of the plaintiff s father and not his self-acquired separate property

(2.) Whether the plaintiff is disqualified from inheritance under the Hindu law and whether the District Judge s omission to give a finding on this point necessitates a remand. As regards the 1st question, the finding of both courts is that there was a substantial nucleus of ancestral funds. In such a case (See Mayne paragraph 291) that is "where there is a substantial nucleus of family property of which the father was the manager the onus would lie on those who assert that any property afterwards acquired in the name of the father was acquired without detriment to that property and was his self-acquisition." The lower Courts have found that the defendants (appellants) failed to discharge that burden and we think they were right. 2. As regards the question Of plaintiff s alleged disqualification we have very little doubt that the learned District Judge s omission to refer to it in his judgment was because the defendants (appellants before him) did not argue it in the District Court and practically gave up that contention. If it was necessary to go into that question, we don t think we shall come to a different conclusion from the District Munsif who held that plaintiff s disease relied on as a disqualification was not congenital. Even if it was congenital the nature of the disease (a tumour in the nasal cavity and on the nose) is not one of the diseases which disqualifies a person from inheritance (See Mayne paragraph 596) but only such congenital disqualifications as blindness, dumbness etc.; whether some of these texts as to disqualifications are in orce now-a-days has been doubted in Venkata Subba Row v. Purushotham (1902) I.L.R. 26 M. 133 and Rayarohana Pathan v. Subbaraya Thevar and Anr. .

(3.) We dismiss the second appeal with costs.