KESAVA PANDITHAN Vs. GOVINDAN

JUDGEMENT

(1.) The real question in this appeal is whether a member of a joint Hindu family who is disqualified from enjoying his share in the family estate by reason of the fact that he is deaf and dumb is entitled to take and enjoy the whole estate when he becomes the sole surviving member of the family.

(2.) On the 27 September, 1939, one Muniyan, who" had been deaf and dumb from birth, settled upon the plaintiff, the husband of his sister, property which had formed the estate of the joint family of which he was a member. The joint family consisted of himself and his brother Manickam, who died in or about the year 1919. The first and second defendants are the sons of Mari, the divided brother of the father of Muniyan and Manickam. On the death of Manickam, they took possession of the property as his heirs, Muniyan being excluded by reason of his affliction. As the result of the settlement the plaintiff sued in the Court of the District Munsiff of Kallakurichi for a decree for possession. The District Munsiff held that by reason of his disqualification, Muniyan had no power to settle the estate upon the plaintiff. He also held that Muniyan was incapable of understanding the document and forming a rational judgment as to its effect. The plaintiff appealed to the Subordinate Judge of Cuddalore, who held that Muniyan had the right to convey the property to the plaintiff, relying on the decision of this Court, in Amirthammal V/s. Vallimayil Ammal . Without considering whether Muniyan was mentally capable of making the settlement, the Subordinate Judge granted the plaintiff a decree for possession. The first and second defendants then appealed to this Court. Their appeal was heard by Somayya, J., who, before dealing with the points of law involved, called for a finding from the Subordinate Judge on the question of Muniyan's contractual capacity. The Subordinate Judge found that Muniyan fully understood what he was doing and was capable of forming a rational opinion as to the effect of the settlement upon his own interests. The Subordinate Judge's finding on the question of contractual capacity is final.

(3.) Mr. Justice Somayya did not consider that Amirthammal V/s. Vallimayil Ammal had decided that a disqualified person who happens to be the last surviving coparcener of a joint Hindu family is, by reason of survivorship, entitled to enjoy the family estate and was of the opinion that the provisions of the Hindu Inheritance (Removal of Disabilities) Act, 1928, precluded the plaintiff from recovering the property from the first and second defendants. The question whether the plaintiff could dispossess the defendants after the death of Muniyan did not arise and therefore the learned Judge did not deal with it. In view of the opinion which he had formed of the effect of the Hindu Inheritance (Removal of Disabilities) Act, the learned Judge allowed the appeal, but granted a certificate under Clause 15 of the Letters Patent which has entitled the plaintiff to prefer the present appeal.