Alfred Henry Lionel Leach, C.J.
1. The question raised in this appeal is whether a congenital idiot has the status of a coparcener notwithstanding that he is excluded from the enjoyment of his share.
2. The following genealogical tree will assist in the appreciation of the facts:
Veerakumara Pillai – Vallimayil Ammal
(died 1912) | (died 1917)
| | |
Chellakrishna-Amirtharamal Karuppayee-Subbiah Pilial Maruthu-Chellam Pillai
(died 1934) (Deft. 3) (Died 1926) (Died 1924)
| | |
Two sons (dead) and one | Vallimayil Ammal
daughter. | (a minor)(Plaintiff)
| | |
Karthikeyan Mangalathammal Ponnumuthammal
(a minor) (Deft. 5) (Deft. 1) (a minor) (Deft. 2)
3. Veerakumara Pillai’s son Chellakrishna was a congenital idiot, but his father married him to Amirthammal and by her he had two sons and a daughter. Both the sons were born after the death of Veerakumara Pillai in 1912, but both of them had died by 1917. It has not been suggested that either of them was similarly afflicted. Veerakumara Pillai left a will, dated the 13th February, 1912, by which he bequeathed all his property, which was ancestral, to his widow, to whom he gave full powers to alienate. Veerakumara Pillai had also two daughters, Karap-payee and Maruthu. His widow died in 1917, the younger daughter in 1924 and the elder daughter in 1926. The elder daughter was survived by a son and two daughters, who are respectively the 5th, 1st and 2nd defendants in the suit. The younger daughter had a daughter, who is the plaintiff.
4. The suit was instituted in the Court of the District Munsiff of Ramnad for a decree for partition of the property which Veerakumara Pillai had left to his widow and the delivery to the plaintiff of a half share. Her case was that her grandmother had obtained an absolute estate under the will of her grandfather and that on the death of her aunt, Karuppayee, in 1926, the property devolved by the right of inheritance on her and the 1st and the I 2nd defendants. The claim was contested by the 3rd, 4th and 5th defendants. They averred that Chellakrishna was not a congenital idiot and that the will left by Veerakumara Pillai was invalid. The District Munsiff and the Subordinate Judge of Ramnad on appeal held that Chellakrishna was a congenital idiot and this finding is now conclusive. The District Munsiff also held that the will was valid and the Subordinate Judge again agreed with him. The appeal is from the decree of the Subordinate Judge and the appellants are the 3rd, 4th and 5th defendants.
5. If Chellakrishna was in law a coparcener with his father, the latter admittedly had no right to bequeath the property held by him to his widow, because in such circumstances, it would constitute the joint property of the father and the son. The answer to the question whether Chellakrishna was a coparcener depends, according to the decision of this Court in Krishna v. Sami (1885) I.L.R. 9 Mad. 64 (F.B.), on whether he was capable of transmitting heritable blood, and therefore it will be necessary to consider whether a congenital idiot can lawfully marry.
6. In order to decide this appeal the Court is called upon to examine certain of the ancient texts and the reported decisions quoted to the Court in the course of the arguments. The most important of the texts are to be found in chapter II, Section 10 of the Mitakshara. In placitum 1 Vijnaneswara quotes the following text of Yajnavalkya as an exception to the rule of succession “of the son, the widow and other heirs”,
An impotent person, or outcast and his sons, one lame, a madman, an idiot, a blind man, and person afflicted with an incurable disease, and others (similarly disqualified), must be maintained, excluding them, however, from participation.
In placitum 2, ‘an idiot’ is denned as a ‘person deficient in understanding, meaning one incapable of discriminating good from bad’. In placitum 3 we find this statement,
Manu likewise ordains, ‘Impotent persons and outcasts are excluded from a share of the heritage; and so are persons born blind and deaf as well as mad men, idiots., the dumb and those who have lost a sense.
Placitum 5 reads as follows:
Those persons are excluded from participation. They do not share the estate. They must be supported by an allowance of food and raiment only; and the penalty of degradation is incurred, if they be not maintained. For Manu says, ‘But it is fit, that a wise man should give all of them food and raiment without stint to the best of his power; for he, who gives it not. shall be deemed an outcast’. ‘Without stint’ signifies ‘for life’.
The words “those persons” with which this placitum commences refer to the persons described in placitum 1 as being excluded from participation.
7. Placitum 7 makes it clear that when the disqualification is removed the right of participation follows. It is in these words:
If the defect be removed by medicaments or other means at a period subsequent to partition, the right of participation takes effect, on the same priaciple on which ‘when the sons have been separated, one, who is afterwards born of a woman equal in class, shares the distribution’ is based.
8. The placita which have bearing on the rights of the sons of disqualified heirs are placita 9, 10 and 11 which read as follows: Placitum 9:
The disinherison of the persons above described seeming to imply disinherison of their sons, the author adds: ‘But their sons, whether legitimate, or the offspring of the wife by a kinsman, are entitled to allotments, if free from similar defects’.
The sons of these persons, whether they be legitimate offspring or issue of the wife, are entitled to allotments, or are rightful partakers of shares; provided they be faultless or free from defects which should bar their participation, such as impotency, etc.
Of these the impotent man may have issue of the wife; the rest may have legitimate progeny likewise. The specific mention of ‘legitimate’ issue and ‘offspring of the wife’ is intended to forbid the recognition of other sons.
Placitum 149 of the Sarasvati Vilasa also has an important bearing, but it is not necessary to quote the whole of it. In explaining the doctrine of exclusion as stated by Manu the commentator states:
Jatyandhaibadhirau. From this coupling together, (a) it follows that they have shares, but that they should though having shares, be supported as they could marry. From the use of the word ‘tadha’ (similarly), the secret meaning is that the lame, etc., if capable of the sacrament of marriage take shares, and should be maintained.”
“Unmaththa jadamukascha. From this grouping together, it follows that they also should be maintained and do not take shares, it must be understood if they are not worthy of marriage.
The term Jatyandhabadhirau has been translated as ‘congenital blind and deaf and the term Unmaththajadamuka as ‘insane, idiot and dumb’. The translations of the ancient texts which I have quoted are those given in Setlur, and for the purposes of this case they have been accepted as being accurate, except the word ‘not’ in the last line of the passage quoted from Sarasvati Vilasa has been omitted.
9. It will be observed that according to Vijnaneswara an idiot, together with other afflicted persons, is exckided from participation in the property of the family while he remains afflicted, the right of participation arises when the disqualification is removed, and an afflicted person is capable of transmitting to his offspring the full rights of a coparcener, if the offspring is not afflicted, notwithstanding that his father remains afflicted. Whether the texts should be read as laying down that a congenital idiot is a coparcener with his rights suspended during the period of his affliction, or whether his rights as a coparcener only commence when his disqualification is removed is another matter and must be decided in the light thrown by the reported decisions, which I will now proceed to examine.
10. The first case and the most important of the reported decisions of this Court is that in Krishna v. Sami (1885) I.L.R. 9 Mad. 64 (F.B.), which was heard by a Bench of five Judges. The plaintiffs’ grandfather one Sami Reddi, the father of the 1st defendant, and the grandfather of the 2nd and 3rd defendants were undivided brothers. The plaintiffs’ father was born deaf and dumb, and the plaintiffs were born after the death of their grandfather. They claimed to be entitled to a share in the family estate as it stood in the lifetime of their father. The District Munsiff held that the plaintiffs were not entitled to sue as they were born after the death of their grandfather, and in support of his ruling relied on the decisions of the Calcutta High Court in Pareshmani Dasi v. Dinanath Das (1868) 1 Beng. L.R.A.C. 117, which was decided by a Bench and Kalidas Das v. Krishan Chandra Das (1869) 2 Beng. L.R. 103 (F.B.), which was decided by a Pull Bench. On appeal, the Subordinate Judge reversed the decision of the District Munsiff and the 1st and 2nd defendants appealed to this Court. Their contentions were: (1) that as the plaintiffs’ father by reason of his affliction could not inherit and as their grandfather had died before they were born, they acquired no right by birth in the family estate, and (2) that the property having devolved upon the defendants by right of inheritance before the plaintiffs were born their subsequent birth could not divest the defendants of their right to any portion of the property. This Court agreed with the Subordinate Judge that the Calcutta decisions were inapplicable, being decisions under the Dayabagha law, and held that under the Mitakshara law the sons of a deaf and dumb member of an undivided Hindu family are entitled to a share of the estate in the lifetime of their father, notwithstanding that they were born after the death of their grandfather, and that in such a case the estate vests on the death of the grandfather in the qualified heirs, subject to the contingency of its being divested on the recovery of the disqualified brother or the birth of a qualified heir. The judgment of the Court was delivered by that eminent Chief Justice of this Court, Sir Charles Turner, who examined with great care all the texts bearing on the questions raised in the appeal. Turner, C.J., pointed out that the decision in Kalidas Das v. Krishan Chandra, Das (1869) 2 Beng. L.R. 103 (F.B.), proceeded mainly on two grounds. First, on. the rule that an estate once vested in a full and absolute owner cannot be divested, and secondly, on an inference drawn from the texts of the Mitakshara which declare that a disqualified person whose disqualification is removed after partition is entitled to share in like manner as an after-born son. Turner, C.J., then observed:
Analogy is intended to illustrate and not to limit. The analogy between the case of the disqualified person and the. case of the after-born son. is incomplete if the opinion of the Calcutta High Court be adopted, and the true meaning of the analogy appears to be explained by the author of the Sarasvati Vilasa. There are classes of disqualified persons who cannot be relieved of their disqualification and cannot transmit heritable blood; there are classes who, though they may be unable to be relieved of their disqualification, are capable of transmitting heritable blood. Their right to share in the family wealth is latent, or may come into existence at a future time as it does in the case of the after-born son. When it comes into existence, either in the person of the formerly disqualified heir or of his son, it is to be recognised. If capable of transmitting heritable blood they are share takers though not at the time share enjoyers. If the son of a disqualified person is born in his grandfather’s lifetime and his father dies, he is at once entitled to be recognised as a member of the coparcenary; the only ground for depriving him of that right, if his father dies after the grandfather’s death, is insistence on the rule against divesting an estate once vested.
Turner, C.J., proceeded to point out that the rule prohibiting the divesting of an estate once vested in a full owner cannot be laid down without exception, in respect of property governed by the Mitakshara law, and concluded his judgment with this statement,
The existence of a valid power creates a potentiality of inheritance, which may be likened to that of a son in the womb. The estate is taken conditionally. It is difficult to distinguish these cases from that of the disqualified share taker, who may afterwards become qualified to demand possession or who may beget a qualified son.
Hindu law makes no difference between a person who is born deaf and dumb and a congenital idiot. In the judgment in Krishna v. Sami (1885) I.L.R. 9 Mad. 64 (F.B.), it is clearly laid down that a disqualified person who is capable of transmitting heritable blood is a share taker, although not while his disqualification lasts a share enjoyer. He only becomes a share enjoyer when the disqualification is removed, but he can transmit a right of enjoyment of the family properties to his issue and it matters not whether the issue is born before or after the grandfathter’s death. The Court is asked to ignore Krishna v. Sami (1885) I.L.R. 9 Mad. 64 (F.B.), but this cannot be done unless it is manifest that it has been overruled by the Privy Council or must be regarded as an obsolete decision, for which I can see no warrant.
11. In Muthusami Gurukkal v. Meenammal (1918) 38 M.L.J. 291 : I.L.R. 43 Mad. 464, the Court had to consider the position in a case of supervening insanity. It was held that the right of a member Of a joint Hindu family to share in ancestral property is a right which comes into existence at birth and is not lost, but is only in abeyance, by reason of an affliction which carries with it disqualification. Consequently, on the death of all other members of the joint family the disqualified member takes the whole of the property by survivorship. In delivering the judgment of the Bench, Seshagiri Aiyar, J., said:
If the exclusion is not based on original sin or subsequent incapacity to offer oblations and the like, the suggestion that it was due to a belief in the inability of the heir to manage temporal affairs appears more plausible. Very likely the rule 5s an outcome of a hazy notion that the property should be preserved for the disqualified person by those who are related to him. The law as to guardianship has developed much in later days. Even, now it is not perfect. It looks as if the old lawgivers by providing for maintenance did not intend to deprive the heir of his inheritance, but only to provide for its management during incapacity.
Seshagiri, Aiyar, J., discussed the question further in the light of what is stated in the Sarasvati Vilasa and came to the conclusion that the right to a share comes into existence at birth, and subsists all through, although it is incapable of enforcement at the time of partition, because of the disqualification then existing, This decision is in keeping with the judgment in Krishna v. Sami (1885) I.L.R. 9 Mad. 64 (F.B.), which was referred to.
12. The decision of this Court in Pudiava Nadar v. Pavanasu Nadar (1922) 43 M.L.J. 596 : I.L.R. 45 Mad. 949 (F.B.) conflicts with Krishna v. Sami (1885) I.L.R. 9 Mad. 64 (F.B.) and Muthusami Churuhkal v. Meenammal,(1918) 38 M.L.J. 291 : I.L.R. 43 Mad. 464 particularly with the latter. In Pudiava Nadar v. Pavanasa, Nadar (1922) 43 M.L.J. 596 : I.L.R. 45 Mad. 949 (F.B.), this question was referred to a Full Bench:
Is a Hindu who is congenitally blind thereby excluded from the inheritance or has the rule become obsolete?
One Kanakku Nadan had four sons, the plaintiff, the 9th defendant, Subbiah Nadan, and Ulagamuthu Nadan. The plaintiff separated from his father, who lived with his other three sons, one of whom (the 9th defendant) was afflicted with congenital blindness. Kanakku Nadan, who had died before the date of the suit, had conveyed his property to his son-in-law, who in turn conveyed it to the 2nd and 3rd defendants. The plaintiff challenged the validity of these transactions. When he filed the suit the only brother alive was the 9th defendant. The defendants contended that the fact that the 9th defendant was alive was a bar to the suit. The plaintiff was by reason of the separation outside the family and if Mufhusami Gurukkal v. Meenammal (1918) 38 M.L.J. 291 : I.L.R. 43 Mad. 464 was rightly decided the family estate had devolved upon the disqualified member, as he was the sole surviving member of the joint family, the plaintiff having left it. The Court, which consisted of Schwabe, C.J., Oldfield and Coutts-Trotter, JJ., held that the plaintiff, notwithstanding that he had separated from the family, was entitled to maintain the suit, and apparently he was given a decree for possession of the property. The Court considered that the blind brother was excluded from the inheritance and that the rule of exclusion had not become obsolete.
13. Schwabe, C.J., regarded the text of Yajnavalkya quoted by Vijnaneswara in placitum 1 of Section 10 of the Second Chapter of the Mitakshara as authority for the opinion that a person born blind is not a coparcener. He ventured to criticise the judgment of Turner, C.J., in Krishna v. Sami (1885) I.L.R. 9 Mad. 64 (F.B.), in that it placed reliance on the Sarasvati Vilasa, He considered that the word ‘share’ would be better translated as ‘ interest’. I do not know on what Schwabe, C. J., based his opinion, but it is to be observed that the translation used in Krishna v. Sami (1885) I.L.R. 9 Mad. 64 (F.B.) by Turner, C.J., is an accepted translation and that he was sitting with Muttusami Ayyar, J., who possessed, I understand, a knowledge of Sanskrit. My learned brothers who are now sitting with me are in that fortunate position and they tell me that the word ‘share’ is a translation of the Sanskrit word amsa which means ‘fraction’, and therefore in this connection should be translated as ‘share’. I am not prepared to accept Pudiava Nadar v. Pavamasa Nadar (1922) 43 M.L.J. 596 : I.L.R. 45 Mad. 949 (F.B.) in preference to Krishna v. Sami (1885) I.L.R. 9 Mad. 64 (F.B.), where the two decisions conflict, but even if I were so inclined I should not be able to follow Pudiava Nadar v. Pavanasa Naidar (1922) 43 M.L.J. 596 : I.L.R. 45 Mad. 949 (F.B.), because the decision in Krishna v. Sami (1885) I.L.R. 9 Mad. 64 (F.B.) is a decision of a larger Bench and therefore is an overriding authority.
14. The only other decision of this Court which calls for mention is that given in Venkateswara Pattar v. Mankayammal (1934) 69 M.L.J. 410. It was decided by Varadachariar and Burn, JJ., and in delivering the judgment of the Bench, Varadachariar, J.,. said:
Among members of the joint family, placitum 7 of the Mitakshara does not in terms draw a distinction between eases of congenital disqualification and cases of supervening disqualification. But, here again, the logical application of the theory of right by birth, may justify a differentiation between the two cases, because the congenitally disqualified man would not have acquired a right by birth at all. The mere fact that the right of maintenance is equally available in both cases does not compel the view that the legal status must be taken to be the same in both cases.
The facts in that case did not call for a decision of the first question raised in this appeal and I do not read the judgment as expressing a definite opinion on the question under discussion.
15. I regard Krishna v. Sami (1885) I.L.R. 9 Mad. 64 (F.B.), as being binding on the Court, but I go further and say that I respectfully agree with all that is said in the judgment delivered in that case. It is a fundamental rule of Hindu law that a son born to a member of a joint family has on birth the right to share in the family estate. The fact that a son is born with an affliction which disqualifies him from enjoying his share does not rob him of his birthright. The affliction merely prevents his enjoyment of the “right while the affliction lasts. The fact that the ancient texts recognise that his son, should one be born to him, has the right to share in the family estate is in itself an indication that he is a member of the coparcenary. In Commissioner of Income-tax, Punjab v. Dewdn Krishna Kishore (1941) 2 M.L.J. 972 (P.C.), the Privy Council expressly recognised that under Hindu law, where the estate is impartible and the holder is joint with his kinsmen, it is the undivided family and not the holder who is the owner of the estate. Only the senior member has the right of enjoyment of the properties forming the family estate, unless there be a custom giving the junior members a subsidiary right of maintenance out of them. I can see no difference in principle here and this provides an additional reason for reading the words “excluding them from participation” used in the quotation from Yajnavalkya in placitum 1 of Section 10, Chapter II of the Mitakshara as meaning exclusion from enjoyment of the share while the affliction continues. The main reason is what is stated in the subsequent placita and in Sarasvati Vilasa.
16. I turn now to the question whether a congenital idiot can be lawfully married. Placita 9, 10 and 11 of Chapter X clearly contemplate the marriage of a disqualified person and the Sarasvati Vilasa which is an accepted authority in Madras emphasises this. The learned advocate for the respondent has said that in these days it is unthinkable that a congenital idiot should be allowed to marry, and has pointed to the observations of the learned editor of the 10th edition of Mayne embodied in pages 150 to 153 of that edition. There is to be found there the statement that the marriage of a lunatic, an idiot or an impotent person is invalid under Hindu law and reljance is placed on the decision of the Privy Council in Mouji Lal v. Chandmbati Kumari (1911) 21 M.L.J. 933 : L.R. 38 I.A. 122 : I.L.R. 38 Cal. 700 (P.C.). On the basis of that decision the learned author regards the judgment of this Court in Venkatacharyulu v. Rangacharyulu (1890) 1 M.L.J. 85: I.L.R. 14 Mad. 316, as being erroneous. I shall refer to these cases’ in more detail in a moment, but before doing so I may point out that at page 106 of the 6th edition of the work, the last edited by Mr. Mayne himself there is this statement:
As the great and primary object of marriage is the procuring of male issue, physical capacity is an essential requisite, so long as mere selection of a bridegroom is concerned; but a marriage with a eunuch is not an absolute nullity as with us. Mental incapacity stands in the same position. While the matter rested in contract, no Court, I imagine, would treat a promise to marry a lunatic or an idiot as binding; but the marriage, if celebrated, would be valid.
In the light of the texts which I have quoted I regard this as the correct statement of the law. Although infant marriages are now prohibited by statute the Hindu law recognised the validity of infant marriages. When a minor is married it means that his father or guardian has arranged the marriage for him.
17. In Mouji Lal v. Chandrabati Kumari (1911) 21 M.L.J. 933 : L.R. 38 I.A. 122 : I.L.R. 38 Cal. 700 (P.C.), Sir Arthur Wilson, in delivering the judgment of the Board, observed that the objection to a marriage on the ground of mental incapacity must depend on a question of degree. The Judicial Committee was not, however, called upon to consider in that ease the question whether there could be a lawful marriage of a congenital idiot. Their Lordships were considering whether an adult who had previously married, was so mentally afflicted that he was incapable of entering into a contract for a second marriage.
18. In Venkatacharyulu. v. Rangacharyulu (1890) 1 M.L.J. 85: I.L.R. 14 Mad. 316, Muttusami Ayyar and Shephard, JJ., observed:
There can be no doubt that a Hindu marriage is a religious ceremony. According to all the texts it is a samskaram or sacrament, the only one prescribed for a woman and one of the principal religious rites prescribed for purification of the soul. It is binding for life because the marriage rite completed by saptapadi, or the walking of seven steps before the consecrated fire creates a religious tie, and a religious tie, when once created, cannot be untied. It is not a mere contract in which a consenting mind is indispensable. The person married may be a minor or even, of unsound mind and yet, if the marriage rite is duly solemnized, there is a valid marriage.
19. In Muthusami Gurukkoal v. Meenammal (1918) 38 M.L.J. 291 : I.L.R. 43 Mad. 464, Seshagiri Aiyar, J., said:
The view is that, if any of the excluded persons is capable of marriage and of begetting children, their shares should be managed for their benefit, and they should be given maintenance. This seems to follow from Manu, Chapter IX, Sloka 203. The professors of the Science of Eugenics may rightly protest against this tacit assumption by the ancient sages that an insane person can marry; but so long as the state does not prohibit such marriages the law cannot be abrogated. The ancient lawgivers even provided for the begetting of children on the wife of the incapacitated person. They seem to have been as anxious for giving facilities for the procreation of children as some of the sanest publicists and the heads of states after the Great War are to recognise and encourage the rearing up of offspring however begotten. However that may be, the view of the author of Saiasvati Vilasa is more in consonanee with the view that the right exists, but is only obscured for the time being. Mr. Srinivasa Aiyangar suggested that the parenthetical clause about capacity for marriage, suggested by the author of the Sarasvati Vilasa, does not destroy the root doctrine that the right is enforeeable only, if and when there is full mental capacity at the date of partition. But the author distinctly says that the share should be managed because of the possibility of marriage thereby indicating that it exists and is not lost altogether.
20. I consider that the opinions expressed in Venkataaharyulu v. Rangackaryulti (1890) 1 M.L.J. 85: I.L.R. 14 Mad. 316 and Muthuswni Gurukkal v. Meenammal (1918) 38 M.L.J. 291 : I.L.R. 43 Mad. 464 and by Mr. Mayne in the sixth edition of his work are preferable to the opinion expressed by the learned author of the tenth edition. It is undoubtedly abhorrent to a modern mind that a congenital idiot should be allowed to marry, but the Court here can only have regard to the personal law, and the personal law of the Hindu undoubtedly does regard such a marriage as being possible.
21. In the present case Chellakrishna’s father arranged his marriage and his wife gave birth to two sons. For the reasons given I hold that Chellakrishna was lawfully married and as he had issues he has shown that he was capable of transmitting heritable blood, which means that the case comes completely within Krishna v. Sami (1885) I.L.R. 9 Mad. 64 (F.B.). In these circumstances his father had no right to bequeath the family estate to his widow and as the plaintiff’s case rests entirely on the will her suit fails. My learned brothers agree with this conclusion and consequently the suit will be dismissed with costs throughout.
Krishmsummi Ayyangar, J.
22. I agree.
23. In view of the importance of the question arising in this case, I wish to add a few words.
24. The question for decision is whether a disqualified person is a coparcener and has a title to his, legitimate share of the family property notwithstanding the disqualification, being only excluded from enjoyment during the period of disqualification.
25. On this difficult question we derive no help from Mitakshara the well-known commentary of Vijnaneswara on the text of Yajnavalkya. The point is clarified in Sarasvati Vilasa, a work of very high authority in Southern India. The author elucidates the position in placita 148 and 149:
148. Manu also describes those who are ineligible for heritage:
Impotent persons and outcasts do not take shares; so also those who are blind, and those who are born deaf, madmen, idiots, and the dumb, and those who are memberless.
The commentator’s remarks on this text are set out in placitum 149. He takes each word in Manu’s text and gives his own commentary. First he takes impotent person and outcasts, the corresponding Sanskrit expression being DyhcifrrkS a compound noun in which both the impotent persons and the outcasts are mentioned together. As regards these persons (impotents and outcasts) the commentator states that they do not take shares. The Sanskrit expression is vua’kkS-. Amsa, means a share derived from the Sanskrit root v’k~ = to divide; The commentator says that these two classes of persons are iks”;kS “to be maintained by their brothers who are eligible for the heritage, or by those who take the estate, or by those who take the woman.” Then he takes the born blind and the born deaf. In the corresponding Sanskrit text these two are mentioned in a compound noun tkR;U/kcf/kjkS-. The commentator says what their status is. This is important and the original of the commentary runs thus:
tkR;U/kcf/kjkfofr f}RohDR;k r;ksja’k%
vLR;sook fda Roa ‘k;qRdkokofi iksL;k fookg ln~Hkkokuks
26. Foulkes translates this passage thus:
Those who are born blind and those who are born deaf”, the pair thus mentioned, though a share certainly belongs to them, are to be nourished and cherished, notwithstanding their being endowed with a share, because they are marriageable.
He further explains the meaning:
By the use of the word ‘so’ the inner meaning is, that deformed persons, if they are eligible for marriage, are sharetakers, and are to be nourished and cherished.
The word ‘sharetaker’ is here obviously used in contrast with ‘share enjoyer’, i.e., they are not share enjoyers because they are excluded from participation. But as the commentator says, a share undoubtedly does exist. va’kks·LR;so. The word ,o is a very significant one.
27. Then he takes madmen, idiots and the dumb, these three being comprised in one compound noun in Sanskrit mUeÙktMewdk’p. This is translated by Foulkes thus:
Madmen, idiots and the dumb, by being mentioned in a group, these » also are to be nourished and cherished, but they are not sharetakers. ‘Even if they are eligible for marriage’ is to be supplied, etc., etc.
“Even if they are eligible for marriage” as given in Foulkes’ translation is not a correct one. The original Sanskrit expression is foogkgkZupsr~ and means “‘If they are not eligible for marriage’ is to be supplied.” The letter ^u* denoting ‘not’ is omitted in the translation. So the meaning is: If these people, madmen, idiots and the dumb, are not eligible for marriage, then they are not sharetakers implying that if they are eligible for marriage, they are certainly sharetakers. We are not concerned with the rest of this chapter.
28. The expression “astyeva” means they do take shares. The word ^^,o** is a very significant expression. Apte in his Sanskrit English Dictionary, page 316, explains the word ^^,o** ‘Eva’ ‘ thus:
This particle is most frequently used to strengthen and emphasize the idea expressed by a word ‘just-quite-exactly’.
According to this author, therefore, if the persons who are disqualified are capable of contracting a marriage, they are undoubtedly sharers.
29. I agree generally with the judgment just delivered by my Lord, the Chief Justice.