JUDGMENT
1. One Aiyaru Naicker had two sons Venkatasarni Naicker and Ayyasami Naicker. The sons remained undivided even after the father’s death. The plaintiff in this case is the natural son of Ayyasami Naicker. The first defendant is the adopted son of Venkatasami. Ayyasami died on the 17th December 1907, Venkatasami on the 9th January 1908 The alleged adoption by Venkatasami is said to have taken place on the 20th December 1907.
2. The plaintiff’s case is that even during the life-time of their father Venkatasami had an attack of leprosy of a virulent and nasty type;” that, consequently, on the death of the father, Ayyasami alone became entitled to the whole property, that Venkatasami made no adoption prior to his death, and that, even if he did, it was invalid.
3. The defendants Nos. 1 and 2 denied that the adoptive father suffered from leprosy and pleaded that the adoption of the first defendant was true and valid.
4. The first issue is in these terms: Whether the deceased Venkatasami Naicker was, from before the death of his father, suffering from a severe and incurable form of leprosy so as to disqualify him from inheritance or from getting a share in the family properties?”
5. The learned Vakil for the appellant contended that even apart from the question of leprosy, if it was found on evidence that’ Venkatasami was suffering from incurable disease, under the text of Mitakshara he was disqualified from inheriting and holding property. But the wording of the issue precludes the consideration of any question other than that of leprosy and we hold that the only question to be gone into under this issue is, whether Venkatasami was suffering from an incurable form of leprosy.
6. Issues Nos. 4 to 8 deal with the factum and validity of the first defendant’s adoption. We may deal with these issues before dealing with the first issue in the case. We feel no hesitation in accepting the evidence of the 12th witness for the defendants that Venkatasami was perfectly conscious and in a disposing state of mind when he executed Exhibit I on the 20th December 1907. That was a document in which Venkatasami states that as he had no male issue he had taken in adoption Ramasami, son of my daughter.” Mr. Ramachandra Iyer argued that the 12th witness, who was the Sub-Registrar of Tiruvadamarudur on the date of Exhibit I, is not to be believed, because he had taken the impression of the left thumb of the executant instead of the right thumb, thereby indicating that he was anxious to conceal the fact that the deceased was suffering from leprosy. The questions as to whether the thumb impression should be taken at all from a man who was suffering from leprosy and whether if it is taken it should be from the right thumb and not from the left, may be relevant in considering the first issue. But they have no bearing upon the question of adoption. We have no reason to doubt that the Sub-Registrar, the defendants’ 12th witness, did go to the house of Venkatasami on the 21st December and did register the document Exhibit I. We accept his evidence that Venkatasami was perfectly conscious and knew what he was doing when he signed Exhibit I in the presence of the Sub-Registrar. We also accept the positive evidence of the defendants’ witnesses on the question of adoption in preference to the somewhat vague and inconclusive evidence of the witnesses for the plaintiff. The conclusion we have come to is that the adoption of the first defendant did take place as alleged in his written statement on the 20th December 1907.
7. The principal question now remains to be considered. It may be discussed under two heads, first, whether Venkatasami did suffer from leprosy; and secondly, whether it was virulent and incurable. On the first point we have come to the conclusion that the deceased was suffering from leprosy. In the year 1897 the then Union Chairman of Tiruvadamarudur, who was himself a medical man, wrote to the President of the Kumbakonam Taluq Board (Vide Exhibit A) that Venkatasami, who was a member of the Union Pan-chayet, “was suffering from a contagious disease–leprosy” and that he should be removed. We see no reason to think that Exhibit A does not correctly state the impression formed by this official on that date. Having regard to the position and influence of the deceased, it is unlikely that unless there was a general repute in the locality that he was suffering from leprosy, the Union Chairman would have written to the President of the Taluq Board in the terms in which he wrote. Exhibit A. The next piece of evidence relates to what took place in the year 1905. In that year, when Venkatasami and his brother appeared before the then, Sub-Registrar of Tiruvadamarudur to register Exhibit B, his thumb impression was not taken and the Sub-Registrar (plain-, tiff’s 5th witness) says that “as at that time he suffered from leprosy, under the rules in force in his Department he did not take Venkatasami’s thumb impression.” It is true that this witness is not a medical man, but we see no reason to doubt that he considered that Venkatasami was suffering from leprosy in 1905. In 1907 plaintiff’s 2nd witness, a private medical, practitioner of Kumbakonam, diagnosed the disease to be leprosy. Just about that time defendants’ 18th witness also saw the deceased and the symptoms which he describes show that Venkatasami was suffering from leprosy. It may be said of the other witnesses, who are either relations of the deceased or persons having dealings with him, that they are either interested in the parties or that their opinion of the nature of the disease should not be accepted. We, therefore, do not attach much importance to this class of evidence. On the whole, our conclusion is that the disease from which Venkatasami was suffering was leprosy and not syphilis as is alleged by the 1st defendant.
8. The next question is whether the disease was of such a virulent and incurable character as to disinherit Venkatasami and those claiming under him. The onus is heavily upon the plaintiff to prove this part of the case. He has examined a large number of witnesses to prove that the disease was incurable at the time of the adoption of the 1st defendant by Venkatasami and at his death. The plaintiff’s 17th and 18th witnesses are undoubtedly men of much experience in their profession. They had to diagnose the disease from the photograph of the deceased man taken in the middle of 1907. They depose to having observed in the photograph the presence of nodules, the thickening of the skin and the disfiguration of the toe in the right leg. Certain hypothetical questions were put to them and their opinion has been given to the effect that, if in addition to the general appearance presented by the photo, the described symptoms were also observable, the disease from which Venkatasami suffered was leprosy of an incurable kind. On the other hand defendants’ 19th witness, the District Medical Officer of the Tanjore District, who also examined the photo and to whom also the various symptoms mentioned to plaintiff’s witnesses Nos. 17 and 18 were repeated, was of opinion that the deceased was not suffering from an incurable form of leprosy. In this state of evidence we are unable to say that it has been proved beyond doubt that Venkatasami did suffer from incurable leprosy. Sir Patrick Mason in his book on Tropical Diseases” mentions a few striking symptoms as indicative of the disease being incurable. One of these is that the expression of the face should be leonine. Neither P. W No. 17 nor P. W. No. 18 can say that this was the facial expression of the deceased. Another test, according to the learned writer, is that there must be anaesthesia of the skin. The only evidence upon this subject is that of the plaintiff’s 2nd witness, who says that when he made a hypodermic injection on the deltoid muscle, the patient did not feel it. It was evident from the deposition of this witness that he was not called to treat Venkatasami for leprosy. He was simply administering medicine for fever, and no reason is assigned why he thought it necessary to make this experiment upon Venkatasami by making an injection on the deltoid muscle. We are not prepared to say that anaesthesia of the skin has been proved. Another decisive symptom, according to the authority already referred to, is that the disease must be sanious, in other words, there must be offensive discharges from the ulcers. Here again, plaintiff’s 2nd witness says: “there were foetid discharges from the ulcers when I dressed them. I do not remember the colour of the discharges.” Defendants’ 18th witness, who says that he examined the deceased at or about the same time, does not refer to any discharges from ulcers. We have to depend entirely upon the memory of plaintiff’s 2nd witness to decide whether the ulcers were sanious. This witness admits that he keeps no memoranda regarding the cases he attends. We are not satisfied from the evidence on record that there were discharges of an offensive kind from the ulcers. The evidence of plaintiff’s 4th witness cannot be relied upon, having regard to his status in life and to his having been once convicted of theft. It is easy to procure the evidence of such men when the feeling between the parties runs high. The other evidence relating to the nature of the disease is that of laymen and it is not safe to attach any importance to their depositions. Nor do we base our judgment upon the evidence given by the witnesses examined by the defendants. On the whole, we have come to the conclusion that it has not been proved beyond doubt that the deceased was suffering from incurable leprosy.
9. It is not necessary, in the face of the finding at which we have arrived, to refer at any length to the authorities quoted by the learned Vakil for the appellant. In. the case of Ananta v. Ramabai1 B. 554 the learned. Judges directed an issue ‘ whether the leprosy of Ananta was of the sanious or ulcerous type generally regarded as incurable” to be tried. From this Mr. Rama-chandra Iyer argues that if the disease is of an ulcerous kind, it must be regarded as incurable. There is no reference to medical evidence in this case and from the report we are unable to say whether the learned Judges were satisfied that in all cases where there have been ulcers, the leprosy will be regarded as incurable as disqualifying the person from inheriting property. The decision in Sivachidambara Pilled v. Parasakty (1857) S.D.A. 210 simply proceeds upon the opinion of the Pandit that “the moment A became a leper, he forfeited his right of inheritance, and his adopted son C cannot, therefore claim A’s share.” No assistance can be derived from this and the cases reported as Muthuvelayuda Pillay v. Parasakti Mad. Sud. Decns. for 1860, p. 239 and Janardhan Pandurang v. Gopal Panduring 5 B.H.C.R. (A.C.J.) 145 regarding the nature of the disease which would disqualify a leper from inheriting. In the case reported as Kayarohana Pathan v. Subbaraya Thevan 19 Ind. Cas. 690 : 25 M.L.J. 251 : 13 M.L.T 460 : (1913) M.W.N. 642 Benson and Sundara Iyer, JJ., examined the authorities at some length and came to this conclusion : Both the texts of the Hindu Law and the decided cases fully establish that it is only the agonising, sanious or ulcerous type of leprosy that can be regarded as a ground of exclusion…. It is not safe to adopt the test whether the disease is curable or not. That is very much a matter of opinion on which the medical profession itself might be divided…. Deformity and unfitness for social intercourse, arising from the virulent and disgusting nature of the disease, would appear to be what was to be accepted in both the texts and the decisions as the most satisfactory tests.” We think that this statement correctly interprets the texts of Hindu Law and the various cases decided on them. The difference of opinion among medical men manifested in this case inclines us to hold that it is unsafe to act upon such evidence. In the present case it is not proved to our satisfaction that Venkatasami was unfit for social intercourse, that he was either deformed in appearance or was disgusting and as observed by us already, the evidence does not establish that the disease was incurable.
10. We have also examined books on Medical Science written by ancient Hindu writers. Extracts from these are appended to this judgment. They show that in order that leprosy may be considered incurable there must be worms on the body, the ulcers must discharge offensive matters, the nails should drop off and the eyes should be blood-red. The evidence in this case does not establish the existence of any of these symptoms in Venkatasami. We are, therefore, strengthened in our conclusion that the disease from which he was suffering was not incurable leprosy.
11. We must, therefore, hold that the plaintiff has failed to establish that the disease of Venkatasami disqualified him from inheriting.
12. We must, therefore, dismiss the appeal with costs.
