This Court, however, on being moved by Kamalammal and her daughter as well as by the mortgagees granted special leave and that is how this appeal is number before us.
The facts of the case are number very material but are being set out merely to appreciate how the question arose.
This son married Kamalammal who is the third defendant in the suit out of which the appeal arises.
A second appeal was preferred to the High Court by Venkatalakshmi daughter of Sornammal.
It is number companymon ground that the properties which are number in dispute between the widow of Pappachari who brought the suit and the wife and daughter of Puttuswami who companytested their claim, were ancestral in the hands of Pappachari.
In this state of affairs Sornammal filed a suit O.S. 248 of 1950 in the Court of the District Munsiff, Krishnagiri for a declaration of her title to the suit properties, companytesting in this respect the right of Kamalammal and her minor daughter to the suit property and for possession of the property after redemption.
While this companytroversy was going on Puttuswami died, as stated earlier, in 1949 and thereafter his widow Kamalammal executed a usufructuary mortgage in favour of the second defendant of all the suit properties with a direction that he should discharge the earlier usufructuary mortgage.
The learned trial Judge decreed the suit of the plaintiff holding that, on the authorities which he discussed and the law which he companysidered, Puttuswami who was admittedly disqualified to inherit was in the same position as if he did number exist and that in companysequence on the death of Pappachari, without male heirs the suit property was inherited by Sornammal his widow as his sole heir and that on her death the same devolved on her daughters.
Soon after the death of Pappachari his widow Sornammal took possession of all the properties left by him and dealt with the suit property by first executing a lease in favour of one Ramakrishnachari the second defendant .
The mortgagees resisted the claim for redemption made by Sornammal by putting forward the mortgage executed in their favour by Kamalammal and thus the real issue between the parties was as to who had the title to the property, Sornammal as the widow of Pappachari or Kamalammal as the heir of Puttuswami, the latter on the foot of the entire property having survived to him on the death of Pappachari.
This claim was acquiesced in by Sornammal and she offered to redeem the mortgage and required the second defendant to deliver possession of the property to her offering to pay the mortgage money claimed.
Puttuswami died in 1949 leaving behind him his widow Kamalammal and a miner daughter Subbulakshmi, the fourth defendant in the suit.
Later, Ramakrishnachari appears to have claimed that the document executed by Sornammal in his favour was in reality a usufructuary mortgage.
ILR 1942 Mad 807 AIR 1942 Mad 693 FB , did number decide the precise point and companysequently allowed the appeal, but on a certificate under Clause 15 of the Letters Patent an appeal was filed and it was placed for decision before the Full Bench.
One Pappachari died in 1928, leaving behind him his widow Sornammal, four daughters and a deaf mute son Moogi Puttuswami.
Sornammal died pending the suit and her eldest daughter Venkatalakshmi was impleaded as her legal representative.
Rajagopala Ayyangar, J. This appeal by special leave raises for companysideration an interesting but, by numbermeans, easy question of Hindu Law as regards the rights of a disqualified heir and in particular whether a disqualified heir who, in this case, was companygenitally a deaf mute becomes by birth a companyarcener with his father, so that the ancestral family properties vest in him as sole surviving companyarcener, on the death of his father without other male issue.
