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 Pillais 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 I.L.R. (1885) Mad. 64, 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 l