1. The plaintiff prayed for declaration of title to andseparate possession of the lands in Schedule 2, for declaration of title to thshare of the lands in Schedule 1 and for recovery of that share on partition,and for declaration of title to th share of the lands in Schedule 6 and 7 andfor recovery of joint possession of the same and for other reliefs mentionedin the plaint. The defendant No. 1 Contended that the plaintiff being a leperdid not inherit the properties left by his maternal grandfather, one Jaggernathand that in any event the plaintiffs claim was barred by limitation. Thedefendants No. 2 and 3 pleaded that the plaintiff had no cause of action asagainst them. The defendant No. 4 supported the defendant No. 1. The Court offirst instance found that the plaintiff was not disqualified to inherit theproperties which belonged to Jaggernath on account of his leprosy and that thesuit was not barred by limitation. The lower appellate Court, on appeal, foundaccording to the medical evidence which had been adduced in the case that theplaintiff had anesthetic leprosy of the mildest kind and that it was not of abad type and was not ulcerous and accordingly held that at the time when thesuccession opened, he had no leprosy of such a kind as could disqualify himfrom inheriting the properties which belonged to his maternal grandfather. Onthe question of limitation, the lower appellate Court found that inasmuch asJaggernaths widow Sreemati Bhagabati was in possession of the joint propertiestill 1321 B.S. when she died, time began to run as against the plaintiff onlyfrom the death of Bhagabati when the succession opened, and therefore theplaintiffs suit was not barred by limitation. The lower Appellate Courtaccordingly affirmed the decree of the first Court. Against this judgment anddecree of the lower Appellate Court the present appeal has been preferred bythe defendants Nos. 1 and 4 and on their behalf it has been contended before usthat on the findings of the two Courts below it should have been held that theplaintiff was excluded from inheritance, and secondly that it had not beenshown what the condition of the plaintiff was at the time when the successionopened.

2. Now, under the Hindu Law the grounds of exclusion frominheritance fall under the following six heads: (1) physical and mentaldefects, (2) incurable or agonizing diseases (3) degradation from caste byreason of crime or otherwise, (4) various, criminal or irreligious conduct, (5)becoming Naistaka Brahmachari (perpetual student) Vanaprasthasrami (hermit) orSanyasi (ascetic). The physical and mental defects expressly mentioned in thetext are impotence, dumbness, deafness, lunacy, lameness, blindness and idiocy.Manu has a further vague ground of exclusion. Nirindriyatwa i.e., absence oflimb or sense which includes according to Saraswati Vilasa females as a class.Among the diseases, lunacy has already been referred to. Other diseasesexpressly mentioned are leprosy (Vishnu) and elephantiasis (Devala).Yagnavalkya has a general ground achikitsya roga (incurable disease) of whichconsumption is given as an illustration by the Mitakshara and Narada has asimilar general ground (sic) rage obstinate or ageing disease. There is somedifference of opinion as to some of these defects whether they should becredential. Sir Thomas Strange distinguishes between infirmities, such asblindness; deafness, dumbness & c. which to disqualify must be coeval withbirth, and disqualifying diseases such as leprosy, &c. which the Hindureligion regards as visitations not only for sins committed in a precedingstate, but also for sins committed in this life; and therefore such visitationsare not necessarily congenital in order to disqualify.

3. Of the Smrithi writers the only one who expresslyexcludes a leper is Devala, whose text runs as follows: "When the fatheris dead, an impotent man, a leper, a mad-man, an idiot, a blind man, anoutcast, the offspring of an outcaste, and a person wearing the token (ofreligious mendacity) are not competent to share the heritage. Manu excludes onewho is a Nirindriya that is devoid of an organ, after expressly mentioningeunuchs and outcast one born blind or deaf, an insane and idiot and a dumb man,but a leper is not referred to by him. See Buhler Oh. IX., Sloka 201. Apastambaand Basistha do not exclude him. Narada excludes persons afflicted with achronic or acute disease (See Sacred Books of the East Vol. 33, page 194), or,us otherwise translated an acute or agonizing distemper. Atrophy or pulmonary consumptionis instanced as a chronic and leprosy as an acute disease in the RatnakaraYagnavalkya and Vishnu exclude persons suffering from an incurable disease. Sofar as leprosy is concerned, the later Hindu Law books generally lay down thatto be a ground c exclusion it must be of the sinuous or ulcerous and no of theanesthetic type (See Jenardan v. Gopal 5 B.H.C. 145 (A.C.), Ananta v. Ramab(sic) (1877) I Bom. 554 Kungiah v. Jhani kachala (1896) 19 Mad. 74, Lislan v.Durgadas (1906) 4 C.L.J. 323 Mohun Bhagasar v. Raghunandan (1895) 22 I.A. 94 -22 Cal. 843 (P.C.) Kayarohana v. Subraya (1915) 38 Mad. 250 - 25 M.L.J. 251.

4. The presumption of Hindu law is against disqualificationand the burden of proof of disqualifications lies on a person who seeks toexclude another who would be an heir, should no cause of exclusion beestablished. It is also settled that where it is contended that a person isexcluded from inheritance by reason of disease, the strictest proof of thedisease as will disqualify him at the time the succession opened will berequired. On The findings arrived at by the Courts below and on the authoritiesreferred to, with which we are in agreement, we must hold that the plaintiffwas not disqualified from inheriting the properties which belonged to hisgrandfather after the death of Sreemati Bhagabati Dasi. In this view of thematter, the two contentions advanced on behalf of the appellants fail and thisappeal must be dismissed with costs.

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Surendra Nath De and Ors. vs. Ashutosh Nandi and Ors.(21.02.1923 - CALHC)