VITHALDAS GOVINDRAM GANDHI Vs. VADILAL CHHAGANLAL SHAH

JUDGEMENT

(1.) The appellant applied for limited letters of administration in respect of certain property in the Ahmedabad District which, he said, belonged to one Vadilal Gulabji who died on April 16, 1912. At the date of his death he left a son Jivrara, who was then a lunatic though he does not appear to have been a congenital lunatic. Jivram was married and had a daughter called Bai Jashi. Bai Jashi married one Vadilal Chhaganlal and died on June 16, 1930. The petitioner presented his application on behalf of the lunatic Jivram since he had been appointed a curator of the lunatic by the Huzur Court of the Mansa State. The property in respect of which letters of administration were asked consisted of certain shares in a company at Ahmedabad, The application was contested by Vadilal Chhaganlal, the husband of the deceased Bai Jashi, and the question on which the parties fought in the Court of the Assistant Judge of Ahmedabad was whether the lunatic Jivram was entitled to the estate of the deceased Vadilal Gulabji as his heir. The opponents" case was that Jivram was not entitled as he was a lunatic, and the learned Assistant Judge, following the case of Bapuji V/s. Pandurang (1882) I.L.R. 6 Bom. 616 decided that the lunatic Jivram was debarred from taking the property as the heir of the deceased Vadilal Gulabji and that the petitioner was, therefore, not entitled to letters of administration under Section 246 of the Indian Succession Act.

(2.) The curator has appealed and Mr. C. K. Shah on behalf of the respondents has taken a preliminary objection that the curator has no locus standi inasmuch as his appointment has been cancelled by the Huzur Court of the Mansa State. We have not all the papers here on this point; but it appears that the order of the Huzur Court of the Mansa State has been suspended and prima facie the appellant, V.G. Gandhi, is still the curator. There would apparently be no objection to his being recognised by a Court in British India since he is the person who has been appointed by the Mans Court and presumably the lunatic was domiciled in Mansa.

(3.) The decision on which the learned Assistant Judge has based his finding (Bapuji V. Pandurang) was not directly in point. One Bapuji died, leaving him surviving Lakshman, his undivided son, who had been born deaf an dumb, and the defendant Pandurang, his undivided nephew. It was held that Lakshman was disqualified from inheriting and that, therefore, on Bapuji death Pandurang had succeeded to the entire family estate and was competent to dispose of it; and that a son subsequently born to Lakshman could not recover any part of the estate sold from the purchaser. The present case is distinguishable on the ground that Jivram was not a congenital idiot am therefore did become a coparcener on birth, whereas in Bapuji V. Panduratu the son never became a coparcener. The present case seems to us to be of all fours with that of Muthusami Gurukkal V/s. Meenammal (1918) I.L.R. 43 Mad. 464. One Gangadhara Gurukkal was entitled to an archaka office in a temple. Though h was born sane, he became insane after his son Subbayya attained his majority. During the period of Gangadhara's insanity Subbayya was doing th archaka service. Subbayya died in 1874. Gangadhara continued in sane until his death, which took place in 1880. Subbayya's widow died ii 1911 and Gangadhara's widow died in 1912. The plaintiff as the reversioner of Subbayya, the son, brought the suit against the daughter and daughter son of Gangadhara for a declaration of his right to, and for possession of the office of archaka. Defendants were the daughter and grandsons of Gangadhara and so they were sister and sister's sons of Subbayya. If the property belonged to Subbayya, the defendants being only the sister and sister sons of the owner were excluded by the plaintiff. If, on the other hand Gangadhara was the owner at the time of his death, the defendants, as hi daughter and daughter's sons, would exclude the plaintiff. The question then was whether Gangadhara, on the death of his son, took the property a the last male holder of the family. Their Lordships considered at length the Sanskrit texts and decided that the right of a member of Hindu join family to share in ancestral property comes into existence at birth, and is no lost but is only in abeyance by reason of a disqualification. It subsists a] through, although it is incapable of enforcement at the time of partition, i the disqualification then exists. Hence, if on the death of all the other members the disqualified member becomes the sole surviving member of to family, he takes the whole property by survivorship. This decision is direct in point; for here Jivram was a coparcener at birth and though his lunacy would have disqualified him from asking for a share on partition, on th death of his father he became the last surviving male of the family. The learned Assistant Judge failed to notice that the Bombay case of Bapuji V Pandurang was distinguishable. It is of course binding on us so far as goes. But it merely decides that the congenital deaf mute is not a coparcene: and goes no further. We think that it would be dangerous to extend this principle by analogy to the case of members of a family who become disqualified by subsequent disqualifications.