Judgement

Appeal (No. 80 of 1922) from a decree of the High Court (December 5, 1918) affirming a decree of the Additional First Class Subordinate Judge of Poona (November 1, 1916).

The suit was brought in 1915 by the first respondent against the appellant and the second respondent for a declaration that she was entitled to inherit the movable and immovable property of her father Narayan Mawal, who died in December, 1914. Narayan Mawal and his son Vishnu Narayan had formed a joint Hindu family governed by the Mitakshara. Vishnu Narayan died childless in December, 1913, being survived by a widow Ramabai, the present appellant. In October, 1914, Narayan Mawal purported to adopt Vishnu Narayan Puranik, respondent No. 2.

The plaintiff-respondent Harnabai by her plaint contended that the adoption of respondent No. 2 was invalid, as the ceremony of datta homa had not been performed, and that she was entitled as heir to her father, the appellant being entitled only to maintenance.

The appellant by her written statement alleged that, before the death of her husband Vishnu Narayan, his father Narayan Mawal was suffering from leprosy and was thereby disqualified from participating in the joint family property, and she contended that her deceased husband, Vishnu, consequently became entitled as sole coparcener and that she succeeded to the properties upon her husbands death ; she also contended that Narayan Mawal was incompetent by reason of leprosy to adopt respondent No. 2.

Respondent No. 2 by his written statement denied that Narayan Mawal was suffering from leprosy as alleged, and pleaded that his own adoption was valid and that he was entitled by survivorship.

The trial judge held that the adoption was in fact made and was valid, since the datta homa was not necessary, the adoptive father and adopted son being in the same gotra. Upon the issue as to Narayan Mawals leprosy, after con sidering the authorities and examining the medical and other evidence called, he said " All this and the more important fact that he used to perform worship in the Alandi temple along with others, although other lepers would worship from outside the temple, is more than enough proof that the deceased was not excluded from social intercourse ; that he freely mixed in society, and managed his affairs. Thus he could not be considered a social cypher unfit to hold and manage property." Upon this finding he held that Narayan Mawal was not disqualified as alleged. Accordingly he dismissed the suit.

The present appellant appealed to the High Court, which dismissed the appeal. The learned judges (Scott C.J. and Shah J.) said " The disqualification relied upon is the disqualification of leprosy which is said to result from ch. II., s. 10, of the Mitakshara, placita 1 and 2, 5 and 6. Leprosy has been held to be an incurable disease such as disqualifies from inheritance and participation within the meaning of

s. 10 of the second chapter of the Mitakshara. But leprosy is of more than one kind. There is tuberculous leprosy, and there is anaesthetic leprosy, and there is mixed leprosy of the two first mentioned classes. Now it has been held for a number of years upon the authority of Stranges Hindu Law, which was published in 1825, that leprosy to disqualify must be of the sanious or ulcerous kind see Ananta v. Ramabai (( 1877) I. L. R. 1 B. 554.) and Bhagaban Ramanuj Das v. Roghunundun Ramanuj Das. (L. R. 22 I. A. 94.) The sanious or ulcerous kind of leprosy is that which is known to medical men as tuberculous leprosy. It is much more quickly fatal than the anaesthetic kind, generally causing death within seven or eight years, and it is marked by great disfigurement of the face, with nodules which become ulcerous, and render the person afflicted loathsome in the sight of his fellow men. Anaesthetic leprosy has different symptoms and is more chronic ; it may continue for twenty years. It is marked by contraction of the fingers and toes, which may eventually drop off, a