Ray, J.This second appeal is preferred by the plaintiff-appellant. He started the suit for partition of his purchased one-third share in lands comprised in khatas Nos. 79 and 80 of village Mohamadpur tauzi No. 3666. The sale deed effecting this purchase was executed by defendant 12, Dwarka Singh, son of Bansi deceased, on 12th May 1939. The plaintiffs claim was resisted by defendants 1 to 11, who are members of the same family as Dwarka. Admittedly defendants 1 to 11 are the heirs and successors of Bansis three brothers Lekha Singh, Tota Singh and Chulhan Singh. The defendants case is that Bansi alone out of the four brothers separated and, by an arrangement agreed to between them, migrated from Mohamadpur to another village by name Eknar giving up his interest in the lands of Mohamadpur in lieu of some lands at Eknar. In the alternative, it was contended that at any rate for more than statutory period defendants 1 to 11 and their predecessors-in-interest had been in exclusive possession pf the land appertaining to the khatas mentioned above and thus had acquired a right by adverse possession, or at any rate, Dwarka, a congenital cripple, acquired no interest in the joint family estate left by Bansi and bad no interest to convey to the plaintiff by the sale deed.

2. The plaintiff, therefore, was not entitled to any relief. Both the learned Courts below came to a finding that the family arrangement pleaded by the defendants was not established. Bansi was recorded in respect of the disputed khatas along with his three brothers in the record of rights, the presumption of correctness whereof, it was concurrently held by the Courts below, had not been rebutted. Similarly also the story of adverse possession was ruled out as not proved. The learned lower Court has observed in this connection:

As regards Bansi Singh, however, the defendants own evidence indicated that he was in possession jointly with the other defendants. He admitted the survey entry to be correct. It was also admitted that he came to Mohamadpur during survey operation. The possession of Bansi Singh in relation to the defendants was that of a co-owner and the learned Munsif is right when he says that unless, a Case of buster was made out the plea of adverse possession or limitation could not prevail, I also agree with the finding of the learned Munsif that the defendants did not place any case of ouster and consequently there was no limitation or adverse possession.

3. It will not be put of place to quote the passage of the learned Munsif with which the lower appellate Court agreed as shown above. He said:

Although the evidence on the side of the plaintiff as to Bansis possession is not very strong it would seem from the khatian Ext. 6 that Bansi was one of the co-sharers of the land of khatas 79 and 80 of Mohamadpore along with Lekha and others. Consequently the possession of Lekha and others over the land would be tantamount to possession of all interested co-sharers on the basis of the well recognised principle of law that the possession of co-sharer is possession of all interested, except where ouster is established by cogent and satisfactory evidence although it is not so before me. Dwarkas position must be same as of his father in regard to the question of possession over the lands of khatas Nos. 79 and 80.

4. Notwithstanding Bansis death having taken place more than 12 years before the institution of the suit, both the learned Courts below came to a clear finding that defendants 1 to 11 had not, by then, acquired a right by adverse possession in respect of Bansis share in the disputed khatas. There was some controversy in the Courts below about the share of Bansi in the disputed lands. The plaintiff by virtue of his, purchase and basing his claim on the recitals in the deed claimed one-third but the Courts below held, relying upon the entries in the record of rights, that Bansis share was one-fourth. This controversy about share was not renewed before us. It remains to consider the only other plea of defendants 1 to 11, namely, that the plaintiffs vendor. Dwarka was disqualified from inheriting under the Hindu law on account of his congenital idiocy and lameness. Congenital idiocy has not been found as a fact. Congenital lameness, however, was assumed though not found by the learned Munsif, and on discussing the law, he came to the conclusion that the disqualification under the Hindu law affects the right of inheritance but not exactly the right of survivorship. He acceded to the contention of the defendants to the extent that under Mitakshara school of Hindu law, persons suffering from congenital disability are excluded from haying a share on partition of joint family estate and that its efficacy was not confined to a case of inheritance only. But he was of opinion that if in a joint family consisting of a disqualified member and another not having such defect, the latter dies, the entire family property must vest in the member suffering from disqualification by right of survivorship, and it cannot go to another family so long as the disqualified member lives. For this proposition of his, he relied upon the case in Masammat Dilraj Kuari Vs. Rikheswar Ram Dube and Others, . In this view of the position taken by him, he held that on the death of Bansi, Dwarka, being the only surviving member of the family, acquired a valid interest in khatas Nos. 79 and 80, and that he was competent to transfer and thereby convey a title in them to the plaintiff to the extent of his share, that is one-fourth. He, therefore, decreed the plaintiffs suit.

5. The defendants took up an appeal to the lower appellate Court who, instead of assuming congenital lameness of Dwarka, recorded a clear finding holding that Dwarka Singh was congenitally cripple, On the question of law, involved in the case, he disagreed with the view of the learned Munsif that Dwarka had in him vested by survivorship any right in the family properties in spite of physical disability. The plaintiff, therefore, has come up in second appeal, and the learned Counsel, Mr. Rajkishore Prasad, appearing in support of the appeal, strenuously contends that congenital lameness is not a disqualification according to Manu, and even if it be taken to be a disqualification, it does not disqualify a coparcener of a joint Hindu Mitakshara family from acquiring a right in property by right of survivorship. The disqualification defeats the right of inheritance only. I am afraid I cannot accept this contention as sound. The authorities relied upon by him do not make good this point.

6. The case in Masammat Dilraj Kuari Vs. Rikheswar Ram Dube and Others, . is one of the cases very much relied upon by him. I, therefore, intend to deal with this case in somewhat detail. What happened in this case, was that the common ancestor, one Ghasi Ram, had two sons Motiram and Ratiram. Motiram was the great great grand-father of Ram Sundar and Janardan. Ram Sundar was the son of Raghunath by his first wife Deokikuar, and Janardan, the son of Raghunath by his second wife Dilraj Kuer. The third defendant in the action was the Manager of the Court of Wards who had been the Manager of the estate for many years since the time when Raghunath the father became insane. The plaintiffs of that case were the great great grand-sons of Ratiram who was the second son of the common ancestor Ghasiram. The plaintiffs claimed the estate known as the Loro estate as the nearest heirs of the last male holder, who, according to them, was Ram Sundar. The defence case was that Ram Sundar was insane at the death of Raghunath and died in that condition, and that the estate never vested in him but in Janardan, his step brother. Janardan, who predeceased Ram Sundar left: his widow and mother Mt. Dilraj Kuari as his heirs. In the circumstances Dilraj Kuari was the rightful owner. The case that Ram Sundar was a congenital idiot or insane was not found true. The parties were content to argue their case on two alternative hypotheses, namely, that Ram Sundar was either insane at the death of Raghunath, his father, or at, the time of the death of Janardan, his step brother. Reliance was placed on behalf of the defendant on Colebrooks translation of Mitakshara, chap. II, Section 10, placitum 6 which is as follows:

They (referring to disqualified persons mentioned in placitum 2. impotent persons, an outcast, ete., a man affected by any of the various sorts of insanity) are debarred of their shares if their disqualification arose before the division of the property. But one already separated from his coheirs he is not deprived of his allotment.

7. Basing on this, what was contended, relying on Sartaj Kuari v. Deoraj Kuari (88) 10 All. 272, was that the right of property in the joint family estate under the Mitakshara is so connected with the right to partition that it did not exist where there was no right to partition; and that as the disqualification resulted in excluding him from right to partition under placitum 6, it necessarily involved a complete ouster from coparcenary, that thus Ram Sundar having no right of coparcenary nothing would go to the plaintiffs as his reversioners. As a further alternative it was argued that Ram Sundar being insane at the death of his father, the property vested in Janardan and on Janardans death the property went to his widow and thereafter to his mother, Mt. Dilraj Kuari, the defendant. In answer to this argument of the defendant, it was contended by the plaintiff that Ram Sundar not being disqualified at his birth, an interest in the estate vested in him, and although insanity supervened and Ram Sundar was disqualified from taking a portion on partition, had there been one, that vested right was in abeyance but his rights as a coparcener were not otherwise affected.

8. In support of this proposition, placitum 7 of the same Chapter and section was relied upon which provides:

If the defect be removed by medicaments or other means (as penance and atonement) at a period subsequent to partition, the right of participation takes effect by analogy (to the case of a son born after separation) when the sons have been separated one who is afterwards born of a woman equal in class shares the distribution.

9. Reliance was also sought to be placed upon the text of Manu, as it has been done here before us, but his Lordship Wort, J. observed:

We are, however, to ascertain the position from the Mitakshara, the school to which the parties belong and in any event the view contended for adds nothing in my judgment to the case.

10. His Lordship further observed:

The text of Mitakshara is silent as to whether the disqualified person loses his right as a coparcener or merely his right to partition....

11. In the result the appeal was disposed of in terms of the following observations:

In my judgment there is nothing in the Mitakshara which would entitle us to hold that on the death of the other co-sharer Janardan, Ram Sundar would not take the estate as the sole surviving member of the coparcenary and the view taken in the Madras High Court is the correct one, the case in Muthusami Gurukhal v. Meenammal AIR 1920 Mad. 652 being correctly decided.

12. It is urged that in view of this decision, Bansi and his son Dwarka being the only two members of their separated family on Bansis death, Dwarka, as the sole surviving member of the co-parcenary, would get the property and would be competent to convey an interest therein by his sale. The learned Munsif in his conclusion referred to above, also relied upon this. This argument, however, overlooked the fact that in the case cited, Ram Sundar was held not to be congenitally insane, and as it has been made clear by his Lordship Dhavle J., in his concurring judgment that he having become a co-parcener by birth his right by his subsequent disqualification came to be only in abeyance to the extent of preventing his enforcing a right to partition, and therefore on his death, his next reversioner could succeed to the right which was in abeyance but not lost nor divested. The case, therefore, is distinguishable from the facts of the present case. The only other case that was cited by the learned Counsel, namely, the case in Muthusami Gurukhal v. Meenammal AIR 1920 Mad. 652 is the one which has also been referred to in the Patna ease by Wort J., and does not at all improve the appellants case. The fact remains, however, as observed by Wort J., that the text of Mitakshara is silent as to whether the disqualified person loses his right as a co-parcener or merely his right to partition. The only text of Mitakshara which deals with disqualification is the one already quoted and properly analysed the text amounts to say that disqualification, congenital or otherwise, debars the disqualified person from getting a share on partition. The position whether one who is disqualified at birth does not become even a coparcener of a Mitakshara joint family in all its implications is still a matter of doubt, and has not as yet been decided in any decided case. It is clear, however, that when a congenitally or otherwise disqualified person continues to live in the joint family and a son is born of him, the latter gets a share on partition which his father could have got had he not been disqualified. This conflicts with the theory that congenitally disqualified person is not a coparcener for any purposes whatsoever-Maxmullers Sacred Book of the East, Vol. XXV, pp. 372-378, paras. 201 and 203. The latter paragraph reads:

If the eunuch and the rest (referring to disqualified heirs enumerated in para. 201) should somehow or other desire to take wives, the offspring of such among them as have children is worthy of a share.

13. J.C. Ghosh on Hindu law, Vol. I, p. 208 says:

According to the law-givers, these unfortunate persons (referring to the disqualified) do not cease to be members of the family, and are entitled with their wives and children to be maintained out of the family property.... The sons of these disqualified persons, if free from any defect entailing exclusion, are entitled to take that share of the family property, which their fathers would have taken if not disqualified. Even their shetraja sons (sons by appointment) are entitled to take their shares.

14. The same learned author after discussing the text says that they are entitled to resume their shares if cured of the deformities. At p. 209 of the same volume, the author referring to Saraswati-Vilasa says:

The Saraswati-Vilasa says in this connection, the inner meaning is that deformed persons, if they are eligible for marriage, are sharetakers.... Therefore, the proper way to determine, whether a person is excluded from inheritance, is to ascertain whether he is debarred from marrying.

15. In Mitakshara, Section X in which the Rules relating to exclusion of disqualified persons occur is entitled "On exclusion from inheritance". The specific rules that deal with disqualification, so far as they are relevant to the present enquiry, are Rules. 1, 2, 5, 6, 7, 9 and 10. Rule 1--"An important person, ...one lame etc. must be maintained; excluding them, however, from participation". Rule 2 defines "lame" as "deprived of the use of his feet". This Rule inevitably covers the case before us as the evidence is that Dwarka moves like a quadruped. Rule 5 enjoins that these disqualified persons who are excluded from participation must be maintained. Rule 7 rules that if the defect be removed by medicaments or other means at a period subsequent to partition, the right of participation takes effect. Rule 6 provides that exclusion takes place only if the disqualification occurs before division but one already separated from his co-heirs is not deprived of his allotment. This Rule settles that right once vested cannot be divested. Rule 9 provides:

The disinherison of the persons above described seeming to imply disinherison of their sons, the author adds: But their sons, whether legitimate or the offspring of the wife by a kinsman, are entitled to allotments, if free from similar defects.

16. Rule 10 speaks of the sons as rightful partakers. The subsequent rules in the section entitled the wives and the daughters of disqualified persons to be maintained and the latter to be given in, marriage out of the joint family funds. The net result of these texts and authorities appears to be that rights once vested cannot be divested. They (i.e. disqualified members) have no right to partition but have certain other rights of a coparcener, such as right to be maintained with their wives and children and to be stock of descent so as to transmit their shares to their legitimate sons and sons of their wives through Niyogi (appointment). In the decided case of this Court, above referred to, Ramsundar though disqualified to participate in the share was held a stock of descent of the inheritance for his own heirs in preference to the heirs of his predeceased step-brother. There is neither any decided case, nor anything in the texts above adverted to, to establish that a congenitally disqualified person is excluded from being a coparcener.

17. Mr. Rajkishore Prasad wants to argue that it follows as a corollary from Masammat Dilraj Kuari Vs. Rikheswar Ram Dube and Others, that right to take a share is there in the disqualified person, but it is only in abeyance and that if it can descend to his heirs on his death, it can as well be conveyed by sale. But every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of expression that may be found are not intended to be expositions of whole law but governed or qualified by the particular facts of the case in which such expressions are found; that is, a case is only an authority for what it actually decides. It cannot be quoted for a proposition that may seem to follow from it logically.

18. The decision in Masammat Dilraj Kuari Vs. Rikheswar Ram Dube and Others, is no authority for the proposition that a right that can descend in law to a disqualified ones heir or successor can be conveyed by him to a stranger by transaction inter vivos nor is it a precedent for vesting of coparcenary right in a congenitally disqualified person because it is a precedent only for the proposition that a supervening disqualification cannot take away a right already vested. The larger problem whether Dwarka, disqualified as he was at his birth, was not excluded from coparcenership with his father or the defendants 1 to 11 so as to be entitled to continue in possession of the family property till his death, is not before us. Without finally deciding the question, I am inclined to the view based upon the original text referred to above that he is a coparcener for certain purposes with rights to descend to his natural heirs present or to come into being on his taking a married life, if he so chooses. I shall not be understood, for the decision in this case I am coming to, to say that Dwarka is not entitled to possession of the property belonging to the coparcenary constituted by himself and his father Bansi or the defendants 1 to 11 or their ancestors as the case may be. But the limited question before us is if Dwarka under the circumstances of the case is entitled to partition of his share in the family property and separately possess it and whether he can, by any transaction inter vivos, convey such a right to his assignee.

19. From what has been discussed above, it is clear to my mind that this question must be answered in the negative. Dwarka, far less the plaintiff, his transferee, has no right to partition and separate possession. The plaintiffs suit, therefore, has been rightly dismissed by the learned lower appellate Court.

20. The appeal fails and is, therefore, dismissed with costs.

Fazl Ali, C.J.

I agree.