व्यवहारमयूख (नीलकण्ठ भट्ट - पश्चिमी भारत की हिन्दू न्याय-संहिता एवं व्यवहार कोष)

109 VYAVAHĀRAMAYŪKHA [S. IV 11, 1-2
[M. p. 99 ll. 22-28
1 * 'Tayaḥ' (in Yāj) means born of him who is patita (an out-
cāst) Those that become endowed after partition, with virility and the
like (the absence of which led to exclusion) by means of medicaments and the
like, do take a share like (i. e. on the analogy of) a son born after partition¹
Manu says (IX 201)
"The impotent and the outcast (patita) are not entitled to a share and
so are persons born blind and deaf also a lunatic, an idiot, one dumb, and
such as are destitute of (the use of) a limb (or sense)² Nirindriyaḥ
loss of right by virtue of Act XXI of 1850. Vas. 18. 51 says that the progeny of one who is
patita becomes patita (except female children) A lame man -- In Venkata Subba Rao v
Purushottam 26 Mad. 133 it was held that lameness which was not congenital could not
be a bar to the right of inheritance and a doubt is expressed whether even congenital lame-
ness would be a bar A mad man -- In 12 ALL 530 it was laid down that the rule
disqualifying persons as idiots or mad men should be enforced only on the clearest and
most satisfactory proof and does not disqualify persons who are merely of weak intellect i. e.
are not up to the average standard of human intelligence. In Murarji v Parvatibai 1 Bom
177 there is an obiter dictum of Westropp C. J. that insanity in order to operate as a ground
of exclusion must be congenital, like blindness but this dictum is dissented from in Bapuji
v Dattu 47 Bom. 707 vide also Muthusami v Meenammal 43 Mad. 464 where all texts
and authorities are considered. Insanity whether curable or incurable excludes from in-
heritance; vide 5 ALL. 509 (F. B.) A blind man -- In Umabai v Bhavu 1 Bom. 557
it was held that incurable blindness, if not congenital does not lead to exclusion. The
same was held by the P. C. in Gunjeshwar v Durga Prasad 45 Cal. 17 = L. R. 44 I. A 229
(at p. 234 the verse of Manu is quoted) In Pudiava v Pavanasa 45 Mad. 949 (F B)
it was held that blindness must be congenital in order to exclude from inheritance

• 1 This sentence is quoted in 9 Mad. 64 (F. B.) at pp. 68 and 74 and in 43 Mad 4
  (at p. 9 the Mayūkha is quoted). This may apply to partition, but it cannot apply to
  inheritance. When property has once become vested in a person by inheritance owing to
  the exclusion of another on the ground of mental or bodily defect, it cannot be divested by
  the subsequent removal of the defect. Vide 5 All 509 (F B)

2. This verse of Manu is quoted in 1 Bom. 177 at p. 179 and in Anant v Ramabai
   1 Bom. 551 (at p. 556) in the former of which (at p. 185) nirindriya is explained
   In 48 Mad. 4 (at p. 12) that word was explained on the analogy of the Vedic passage
   tasmāt striyo nirindriyāḥ as meaning devoid of sufficient capacity and mental
   strength in the organs of sense. One dumb -- In Dharmayya v Liyyantanda 46 Bom.
   405 it was held that a person suffering from congenital and incurable dumbness was excluded
   from inheritance (at p. 4 7 the Mayūkha is referred to) Vide also Savitribai v Jiknabhai
   29 Bom. L. R. 54 (at p. 65 Mayūkha is referred to) and Pratapsavars v Mulshankar
   26 Bom. L. R. 269 (where it was held that dumbness in order to bar must be incurable
   though not necessarily congenital) In Vujammal v Sankarappa 51 Mad 8 6 at p
   585 the learned judges differ from 46 Bom 405 and hold that where a son is suffering from
   an incurable and virulent form of leprosy the father can adopt a son. Destitute of a limb
   or sense -- In Anant v Ramabai 1 Bom. 551 it is said (at p. 557) that the word
   nirindriya even in its more extended sense of the loss of a sense organ or limb could
   not be properly applied to leprosy and that leprosy in order to exclude must be of the
   sanious or ulcerous type (but need not be congenital). Vide as to leprosy Janak v
   Jardai 2 Thom. L. R. 1149 Ramabai v Harnabai 48 Bom. 363 P. C. (= 51 I A p 177)
   and 20 Cal. 601 at p 608 (where it is said that the text of Devala quoted by the Mitā-
   kṣarā and that of Viṣṇu are the only text where lepers are expressly excluded).
   V 109 (left)