Judgment

AYYANGAR, J.; This appeal by special leave raises for consideration an interesting but, by no means, easy question of Hindu Law as regards the rights of a disqualified heir and in particular whether a disqualified heir who, in this case, was congenitally a deaf-mute becomes by birth a coparcener with his father, so that the ancestral family properties vest in him as sole surviving copareener, on the death of his father without other male issue.

2. The facts of the case are not very material but are being set out merely to appreciate how the question arose. One Pappachari died in 1928, leaving behind him his widow Sornammal, four daughters and a deaf-mute son Moogi Puttuswami. This son married Kamalammal who is the third defendant in the suit out of which the appeal arises. Puttuswami died in 1949 leaving behind him his widow Kamalammal and a minor daughter-Subbulakshmi, the fourth defendant in the suit. It is now common ground that the properties which are now in dispute between the widow of Pappachart who brought the suit and the wife and daughter of Puttuswami who contested their claim, were ancestral in the hands of Pappachari. Soon after the death of Pappachari his widow -Sornammal took possession of all the properties left by him and dealt with the suit property by first executing a lease in favour of one Ramakrishnachari (the second defendant). Later, Ramakrishnachari appears to have claimed that the document executed by Somammal in his favour was in reality a usufructuary mortgage. This claim was acquiesced in by Sornammal and she offered to redeem the mortgage and required the second defendant to deliver possession of the property to her offering to pay the mortgage money claimed.

3. While this controversy was going on Puttuswami died, as stated earlier, in 1949 and thereafter his widow, Kamalammal executed a usufructary mortgage in favour of the second defendant of all the suit properties with a direction that he should discharge the earlier usufructuary mortgage. In this state of affairs Sornammal filed a suit-O.S. 248 of 1950 in the Court of the District Munsiff, Krishnagiri for a declaration of her title to the suit properties, contesting in this respect the right of Kamalammal and her minor daughter to the suit property and for possession of the property after redemption. Sornammal died pending the suit and her eldest daughter-Venkatalakshmi was impleaded as her legal representative. The mortgagees resisted the claim for redemption made by Sornammal by putting forward the mortgage executed in their favour by Kamalammal and thus the real issue between the parties was as to who had the title to the property. Sornammal as the widow of Pappachan or Kamalammal as the heir of Puttuswami, the latter on the foot of the entire property having survived to him on the death of Pappachari.

4. The learned trial Judge decreed the suit of the plaintiff holding that, on the authorities which he discussed and the law which he considered, Puttuswami who was admittedly disqualified to inherit was in the same position as if he did not exist and that in consequence on the death of Pappachari, without male heirs the suit property was inherited by Sornammal-his widow as his sole heir and that on her death the same devolved on her daughters. The result of this line of reasoning was that neither Puttuswami nor his widow, and daughter had any rights to the property and consequently the plaintiff was held entitled to possession of property after redemption of the usufructuary mortgage which she had executed. From this decision an appeal was taken by the mortgagees. The learned District Judge held that the question of law was concluded in favour of the appellants by the decision of a Full Bench of the Madras High Court to which we shall refer later and allowing the appeal, dismissed the suit, A second appeal was preferred to the High Court by Venkatalakshmi--daughter of Sornammal, The learned Single Judge who heard the appeal referred to