History of Dharmashastra (Ancient and Mediaeval Religious and Civil Law in India) v4.c63.1234

v4.c63.1234

The most famous passages on the grounds of exclusion from inheritance are Manu IX. 201, Yāj. II. 140 and Nār. (dāyabhāga, 21-22). Manu IX. 201 provides¹¹⁵⁸ "impotent persons, outcasts (*patita*), persons blind or deaf from birth, insane persons, idiots, the dumb and those deficient in any organ (or sense) aro entitled to no share". Yāj. II. 140 declares that the impotent, the outcast and his son, a lame man, a mad man, an idiot, a blind man and one afflicted with an incurable disease are not entitled to a share. It will be noticed that Yāj. expressly excludes the son of an outcast, as do also Baud. and Devala. Nār. (dāyabhāga 21-22) says 'one hostile to his father, an outcast (*patita*), an impotent person, one who goes to another continent by sea (from India)—these even though they be *aurasa* sons shall not get a share; how can a kṣetraja (a son of the wife raised by another person by appointment) get a share (if he has these defects) and persons afflicted with long standing (like phthisis) and severe diseases (like leprosy), persons who are either idiots, insane or lame—these must be maintained by the family, but their sons are entitled to a share'. These verses of Manu, Yāj. and Nār. have been quoted and explained in numerous decisions of the courts in India, but all such cases are mostly of academic interest now since the passing of the Hindu Inheritance (Disabilities Removal) Act of 1928 and hence need not be dwelt upon here. The Act (XII of 1928) applies to the whole of British India except to persons governed by the Dāyabhāga school and provides that no person governed by the Hindu Law, other than a person who is and has been from birth a lunatic or idiot, shall be excluded from inheritance or from any right or share in joint family property by reason only of any disease, deformity or physical or mental defect. This Act is not retrospective and does not confer on any person any right in respect of any religious office or service or any right to the management of any religious or charitable trust which he would not have had before the Act. Therefore under the Act the only defects that would disqualify a person governed by the Mitākṣarā school from claiming partition or inheritance are congenital lunacy and congenital idiocy. Under the Dāyabhāga school the grounds of exclusion will still remain as before except as modified by judicial decisions and by other Acts. An important question under the Mit. school arises in this way. What is the exact position of a son that is congenitally idiotic or insane. Both Manu (IX. 201 and 203) and Yāj. (II. 140, 141) declare that they are *anaṁśa* or *niraṁśaka* (not entitled to a share of the ancestral estate), but must be given maintenance and if maintenance be not given by those who are liable to give it, they would incur sin (as Manu IX. 202 expressly says) and that the sons of disqualified persons take a share, if they are themselves free from defects. If A has a son B who is congenitally idiotic, is B still a coparcener of A (though not entitled to a share or to claim partition) so that A cannot make a gift of the whole or a portion of the property or a bequest thereof to his widow? This question arose in *Amirthammal v. Vallimayil* I. L. R. (1942) Mad. 807 (F. B.), where it was decided that, when A made a will in the above circumstances bequeathing all family property absolutely to his widow and two sons were born to the disqualified man B after A's death, the father had no power to make a will as the disqualified member B was still a coparcener (though not entitled to a share) and that he transmitted the heritage to his sons. The chief ground of the decision was a passage of the Sarasvatīvilāsa (explained on pp. 817 and 828-830) which is quoted below¹¹⁵⁹.