JUDGMENT
Hegde, J.
(1) The first defendant in Original Suit Number 89/1954 in the Court of the Subordinate Judge, Bellary, is the appellant in this Court. The plaintiff and the second defendant are the sons of the first defendant. The plaintiff is said to be a person of unsound mind and hence, the suit was instituted by his wife as his next friend.
(2) In the Court below, the suit was resisted mainly on two grounds: They are : (1) the plaintiff is not a person of unsound mind and as such the suit as instituted is not maintainable and (2) that all the properties of the first defendant and hence, the plaintiff had no right to claim any share in them. The Court below rejected both these contention and decreed the suit in respect of all items of property claimed excepting item No. 8. As regards costs, it directed that the same shall come out of the estate. The first defendant has appealed against that decision while the plaintiff has come up with a Memorandum of Cross-Objections disputing the correctness of the decree to the extent it went against him.
(3) We may first take up the Memorandum of Cross-Objections as we think that there is no substance in it. The plaintiff has not impleaded the alienee as a party to the suit. Hence, the validity of the alienation of item No. 8 cannot be gone into.
(4) Now, as regards costs, it was essentially within the description of the Court below. Further ordinarily in a partition suit the costs incurred by the parties are made payable from out of the family assets. Grounds urged are insufficient to depart from the normal rule. In the result, the cross-objections are dismissed with costs.
(5) Now, coming to the main appeal, the two contentions taken in the Court below were reiterated in this Court. In addition, it was urged that if the plaintiff is a person of unsound mind, on the date of the institution of the suit and thereafter he or any person on his behalf, cannot in law demand a partition. This question being a pure question of law, we have permitted the learned counsel for the appellant to argue the same even though it was not mooted in the trial Court or taken in the grounds of appeal.
(6) Now, coming to the question whether the plaintiff was a person of unsound mind on the date of the institution of the suit, we have on this point the evidence of P.Ws. 1, 3 and 5. P.W. 3 is the next friend. She disposed that her husband was and continues to be of unsound mind and is incapable of taking care of himself or of managing his own properties. Her evidence is corroborated by the testimony of P.Ws. 1 and 5. P.Ws. 1 and 5 appear to be disinterested witnesses.
Their evidence has commended itself to the trial Court and we are also impressed with the same. In fact, some of the suggestions made on behalf of the defendants during the cross-examination of the plaintiff’s witnesses do themselves indicate that the plaintiff is a person of unsound mind. Admittedly, the 1st defendant is having the custody of the plaintiff.
He has not produced him into Court nor has he adduced any independent evidence to show that the plaintiff is not a person of unsound mind. On the other hand, in Exhibit P-4, a sale deed executed by the defendants, the plaintiff was described to be a person of unsound mind and he was represented therein by the first defendant as his guardian. The evidence on record satisfactorily establishes that the plaintiff is a person of unsound mind.
(7) We are unable to accept the contention of Shri H.Lakshmanaswamy the learned counsel for the appellant that P.W. 3 is disqualified to act as the next friend of the plaintiff as she is not living with him at present. We do not think that there is any conflict of interest between P.W. 3 and the plaintiff. In the circumstances of this case, she is the best suited to be his next friend.
(8) Now, coming to the question whether the properties detailed in the plaint-schedule are jointed family properties, the stand taken by the first defendant in his written statement was that the joint family did not possess any property what so ever and all the properties inherited by him from his deceased brother Ramappa. This contention is proved to be wholly false.
As early as 15-8-1898, the 1 statement defendant and his two brothers Ramappa and Narasappa executed the mortgage deed Exhibit P-6 for Rs. 250/. Under that document, 58 acres of dry lands were mortgaged. The said document recites that some of the items of the properties included therein are (Equivalent in Canarese omitted) (ancestral property). No evidence has been adduced to show that the properties included in Exhibit P-6 were either the self-acquisitions of the first defendant or that of Ramappa.
From the terms and tenor of Exhibit P-6 it is clear that the executants of that document, including the 1st defendant, treated the property mortgage there under as their joint family property. On 30-4-1903 as per Exhibit P-7 it is seen that joint family of the first defendant possessed about 90 acres of dry land is about the year 1903.
(9) As mentioned earlier, Ramappa was the brother of the first defendant. There is no evidence to show that he was divided from the other members of his family. Admittedly, he was unmarried. It is proved the family property. There is no evidence to show that he had any other avocation. We do not know exactly the extent of the lands cultivated by him, but from the available evidence, it is clear that his only source of income was the cultivation of family lands.
It is seen from Exhibit D-1 that in about the year 1912 he acquired the properties mentioned in Exhibit D-1. In the circumstances of the case, the acquisitions made by him must be deemed to be family acquisitions. The entire family property including the property detailed in Exhibit D-1 devolved on the plaintiff after the death of his brothers Ramappa and Narasappa. The acquisitions made by the first defendant are evidence by Exhibits D-3 to D-9.
They were all made subsequent to 1924 by which time the plaintiff was in possession of all the family properties. There is no reliable evidence to show the first defendant had any other source of income excepting the income realised from the family properties. His story that he was managing the properties of his widowed sister and that he was able to appropriate for himself some portion of the income of those properties is not corroborated nor is it convincing. We are unable to rely on the same.
(10) The plaintiff has adduced evidence to show that the family properties are likely to yield an annual income of about Rs. 100/- per acre. It may be that this evidence is some what exaggerated. It is necessary to go deep into the matter in this respect as it is clear that the first defendant had no other source of income excepting the income realised from the family properties. On taking into consideration the extent of the family properties and their probable income, we are satisfied that the family income was sufficient to make the acquisitions in question. Agreeing with the Court below we hold that the properties included in the plaint-schedule are joint family properties.
(11) The only contention which deserves serious consideration is whether the next friend of a person of unsound mind could demand or enforce a partition. Unlike a congenital idiot, a person who is born sane, but unsoundness of mind supervenes, is entitled to a share in the family property. This position is now well established. But the decisions have laid down that as long as a person continues to be of unsound mind, no one on his behalf can demand or enforce partition.
The position of the law bearing on this point is elaborately discussed in Ratneshwari Nandan Singh v. Bhagwati Saran Singh, AIR 1950 FC 142. But the question for our determination is whether the ancient Hindu Law on this point was amended by section 2 of the Hindu Inheritance (Removal of Disabilities) Act XII of 1928 which shall be hereinafter called “the Act”. The Act in question specifically says that it is an amending Act.
The preamble to that Act reads : “Whereas, it is expedient to amend the Hindu Law relating to exclusion of certain classes of heirs from inheritance……………….” From this, it is clear the purpose of the Act was not merely to clear certain doubt but also to amend the Hindu Law as laid down by the texts and interpreted by decisions. It is true that prior to its enactment judicial decisions were not unanimous as to the true scope of the right of a person of unsound mind in the family property.
With this background we may now proceed that consider the scope of section 2 which reads thus:
“Persons not to be excluded from inheritance or rights in joint family property —Not with standing any rule of Hindu Law or custom to the contrary, no person who is and has been from birth lunatic or idiot shall in joint family property by reason only of disease, deformity or physical or mental defect.”
(Underlining herein ‘ ‘ ) is ours). If the contention Shri H. Lakshamanswami the learned counsel other the appellant that what the Act conferred, is only a right to qualified persons of unsound mind. Adverting to the language of Section 2, which says.
“No persons governed by the Hindu Law other than a person who is and has been from birth lunatic or idiot shall be excluded from inheritance or from any right or a share…………..”
We see that if speaks of not merely of “Inheritance” but also of “any right or a share”. Shri Lakshmanaswami or a share” as ejusdem generis, to the “inheritance”. If this contention is correct the words “or from any right or a share” must be considered superfluous. Such an interpretation is opposed to the rules of construction of statues. In our judgment, the words “or from any right or a share” have been purposely introduced by the legislature. Prohibition laid down by the Hindu Law
Texts debarring persons of unsound mind form claiming a share is removed by the Act. “Any right” means all rights which includes a right to claim partition.
Again a right to get a share means a right to get a separate share. The Act in question is a social legislation intended to remove certain social disabilities imposed by the customary Hindu Law. It calls for a benevolent construction. In our judgment, ‘the Act’ placed a coparcener of unsound mind in the same position as that of a same coparcener.
(12) We are unable to accept the contention of Shri H. Lakshmanaswami that section 2 of the Act stood amended by section 28 of the Hindu Succession Act, 1956. The language of that section lends to support for that contention, nor do we agree with him that the Federal Court in AIR 1950 FC 142 took into consideration the changes effected of ‘the Act’. In that case, the Court was merely considering the law as it stood at the time of the institution of the suit which was long proper to 1928.
(13) In the result, the appeal fails and the same is dismissed. The first respondent will get his costs of this appeal from the estate. The other parties to the appeal will bear their own costs.
Mir Iqbal Husain, J .
(14) agree.
(15) Appeal dismissed.
