MT. DHANIYA BAI Vs. MT. KAUSALYABAI

JUDGEMENT

(1.) THE facts of this case have been fully stated in the judgments of the two lower Courts. On the appeal coming on for hearing the pleader for the appellant stated that he did not desire to dispute the findings of fast arrived at by the lower appellate Court. Even on these findings, however, three points were urged. The first of these was that the deafness and dumbness of Mt. Kausalya Bai, Plaintiff-Respondent No. 1, need not be congenital in order to exclude from inheritance. I have been referred to two decisions in this connection, viz., Bai Pratapgavri v. Mulshankar A.I.R. 1924 Bom. 353 in which case Kajiji, J., held that dumbness as the ground of exclusion from inheritance under Hindu law must be incurable although it need not be congenital. Again, in Charu Chunder Pal v. Nobo Sunderi Dasi [1891] 18 Cal. 327 Norris and Banerjee, JJ., came to the conclusion that under the Bengal School of the Hindu law a widowed daughter having a son who is dumb at the time the succession opens out, but is not shown to be incurably dumb, is entitled to succeed to her mother's stridhan in preference to a daughter's son. This ruling does not, in effect, decide the point at issue, although Banerjee, J., in the course of his judgment, expressed his opinion that dumbness, in order to disqualify a person from inheritance, need not be congenital. The matter, however, seems to me to be one in which I must necessarily follow the decision of their Lordships of the Privy Council in Gunjeshwar Kunwar v. Durga Prashad Singh [1918] 45 Cal. 17. In the said judgment the following quotation occurs from Rajkumar Sarvadhikari's Hindu Law of Inheritance: Blindness, to cause exclusion from inheritance, must be congenital. Mere loss of sight, which has supervened after birth is not a ground, of disqualification. Incurable blindness, if not congenital, is not such an affection as, under the Hindu Lal, excludes a person from inheritance.

(2.) HAVING given this quotation their Lordships go on to hold that the said quotation is the true rule in this connection. A similar view was also taken by Batten, J.C. in Nana v. Jogilal A.I.R. 1923 Nag. 151. The contention, therefore that the non-congenital deafness and dumbness of Mt. Kausalya Bai would still exclude her from inheritance, necessarily fails.

(3.) THIRDLY and lastly, it has been urged that, in any event, the present appellant was entitled to maintenance. Admittedly, no plea to this effect was offered in the lower Courts, and I do not think it can possibly be entertained now at this stage. It was not even raised in the appeal in the Court of the District Judge.