Chunder Mohun Roy and Others Vs Mohesh Chunder Roy and Others

L.S. Jackson, J.@mdashThe question raised in this special appeal is whether the plaintiff, Chunder Mohun Roy, is excluded from his share of inheritance by reason of his having become blind at a period of about two years before the succession opened. The Subordinate Judge, in whose Court the suit was brought, and the District Judge who heard the appeal, both decided that the plaintiff is not excluded by the Hindu law, and the object of this special appeal is to show that the Hindu law current in Bengal does exclude a person under such circumstances. In a matter of this sort, it appears to us that the case should be ordinarily concluded by the authority of the text-books which are regarded as the first authority in Bengal, and first of all those books undeniably is the Dayabhaga. The Dayabhaga in Ch. v, which is devoted to that subject, sets out in paras. 1 to 9 the persons who are excluded from various causes. In para. 10 the enumeration is repeated, and in that paragraph and para. 11, the right of such persons to maintenance is insisted upon. The enumeration which the Dyablaga contains is in these words:--"Impotent persons and outcasts are excluded from a share of the heritage, and so are persons born blind and deaf, as well as madmen, idiots, the dumb, and those who have lost a sense [or a limb], "the translation being alternative. That phrase seems clearly to indicate the meaning of the author who quotes it, that the exclusion refers to persons born blind and deaf, not to persons who afterwards become blind by accident. The enumeration in para. 10 has not for its object any variation of the list of persons mentioned above; but the blind man is mentioned as a person who though excluded must be maintained, do I not think the intention was to refer to the blind man in any other sense than he is referred to by Menu. The next authority, which is not denied, is the Dayakrama Sangraha, and the author of that work is even more explicit on the subject. He in Ch. iii, paras. 1 and 2, mentions, expressly persons "born blind and deaf, that is by nature, not those who have become so from some adventitious cause." He says:--"The meaning therefore is, those who are blind and deaf from the period of their birth." As far, therefore, as these authorities are concerned, the decisions of the Courts below appear to be in conformity with the Hindu law. But it is said that going further back, and looking to the original source of the Hindu law, viz., the original text of Menu, we ought to put a strict interpretation on that law. The phrase referred to is Ch. ix, sloka 201 Gradys Ed., 214. That is in these words:--"Eunuohs and outcasts, persons born blind, or deaf, madmen, idiots, the dumb, and such as have lost the use of a limb, are excluded from a share of the heritage." Now if it be contended that by the expression "such as have lost the use of a limb," the exclusion is carried beyond what is implied in the former part of the sloka, it must be clear that the person to be excluded must be incurably blind or such as has lost the sense of sight. Here the evidence does not show anything of that sort. The plaintiff has not lost his eyes, nor is there anything, as I understand, to show that he is incurably blind. Therefore, if we are to go on that sloka, I do not think he would be necessarily excluded. Speaking for myself, I should rather base my judgment on the two authorities on the Hindu law as are current in Bengal--I mean the Dayabhaga and the Dayakrama Sangraha. A rule of Hindu law, which is relied upon as preventing the natural course of inheritance, ought to be clear and unmistakable. I think, therefore, that this special appeal must be dismissed with costs.