Judgement Appeal from a judgment and decree of the High Court (May 7, 1912) reversing a decree of the officiating Subordinate Judge of Bankipur. The suit was instituted by the appellant under circumstances which appear from the judgment of their Lordships ; the effect of the decisions in India in the case is also there stated. The arguments were chiefly directed to the facts. 1917. June 7, 8, 11, 12, 13, 14. Dube, for the appellant. It is well established that in Hindu law blindness, unless it is congenital, does not exclude from inheritance. The rule applies equally to partition, as appears from Ram Sabya Bhukkut v. Laljee Sabya. (( 1881) I. L. R. 8 Calc. 149.) The evidence shows that the appellants father was not born blind, and that Durga Prasad Singh must have known that that was so. The claim in the suit compromised was not a bona fide claim. The appellants mother being a pardanishin woman, the onus was upon the first respondent to prove that the compromise was explained to her and that she understood it Bibee Rukhun v. Ahmed Hossein (( 1874) 22 Suth. W. R. 443.); Sudisht Lal v. Sheobarat Koer. (( 1881) I. L. R. 7 Calc. 245.) That onus was not satisfied. De Gruyther, K.C., and Parikh, for the respondents other than Musammat Harbans Kunwar. Upon the evidence the appellants father was born blind. But in any case he was blind at the date of the partition, and under the Mitakshara law consequently was not entitled to participate Mitakshara, ch. 10, s. 2, vv. 1, 2, 4. The partition did not amount to a waiver Muddun Gopal Lal v. Khikhinda Koer (( 1890) L. R. 18 Ind. Ap. 9.); it could not do so since the first respondent was a minor. Whether or not he was entitled to set aside the partition, there was sufficient material, both upon the facts and the law, to form the basis of a valid compromise. The test as to its validity is whether or not the claim was an honest one Miles v. New Zealand Alford Estate Co. (( 1886) 32 Ch. D. 266, 283, 284.) There was no proof of any undue influence and the compromise was an honest and reasonable family settlement. Dube replied. July 6. The judgment of their Lordships was delivered by SIR JOHN EDGE. (( 1886) 32 Ch. D. 266, 283, 284.) There was no proof of any undue influence and the compromise was an honest and reasonable family settlement. Dube replied. July 6. The judgment of their Lordships was delivered by SIR JOHN EDGE. This is an appeal from a decree, dated May 7, 1912, of the High Court at Calcutta, which reversed a decree, dated March 31, 1908, of the officiating Subordinate Judge of Bankipur and dismissed the suit. The plaintiff, who is the appellant here, is a minor and is suing by her next friend. The defendants are Durga Prashad Singh, an uncle of the plaintiff, Musammat Harbans Kunwar, her mother, and three assignees of the defendant Durga Prashad Singh. The suit was brought on July 21, 1906, to obtain a declaration that a compromise which was entered into between Durga Prashad Singh, who is the first defendant in this suit, and Musammat Harbans Kunwar, and a decree dated August 30, 1904, which was made in pursuance of that compromise, are not binding upon the plaintiff; a declaration that the plaintiffs father, Bishambhar Prashad Singh, was at the time of his death separate from his brother, the defendant Durga Prashad Singh ; a declaration that the defendant Musammat Harbans Kunwar, by reason of her conduct in entering into the said compromise, had ceased to be entitled to any rights in the estate of her deceased husband, Bishambhar Prashad Singh, and that the plaintiff was entitled to the present possession of that estate ; a declaration of the plaintiffs reversionary right in case she should not be held entitled to the possession of the property in dispute during her mothers lifetime ; and for other relief. The Subordinate Judge gave the plaintiff a declaration that the compromise and the decree of August 30, 1904, which was made on the basis of that compromise, were not binding upon her and, on the ground that the plaintiff was not entitled to get possession of the property during the lifetime of her mother, dismissed the suit so far as the claims for possession and mesne profits were concerned. The High Court in Appeal by its decree dismissed the suit. From that decree of the High Court this appeal has been brought. The High Court in Appeal by its decree dismissed the suit. From that decree of the High Court this appeal has been brought. The plaintiff and the defendant Durga Prashad Singh are descended from Lal Behari Singh, who died on October 24, 1885, leaving him surviving two sons, then minors, Bishambhar Prashad Singh, the plaintiffs father, and the defendant Durga Prashad Singh, his mother, Musammat Gulab Kunwar, and his widow, Musammat Mohun Kunwar. The family of Lal Behari Singh was a joint Hindu family, governed by the law of the Mitakshara. Bishambhar Prashad Singh died on August 2, 1902, leaving surviving him only one child, the plaintiff, and Musammat Harbans Kunwar, his widow. The compromise referred to was made in a suit which Durga Prashad Singh had brought on May 7, 1904, against Musammat Harbans Kunwar, her daughter the plaintiff, then and still a minor, and other persons. In his plaint in that suit Durga Prashad Singh alleged that his brother Bishambhar Prashad Singh had been born blind and was excluded from inheritance to his fathers estate by reason of his congenital blindness; that all the proceedings in a suit against Bishambhar Prashad Singh for partition which Durga Prashad Singhs father-in-law, Mahabir Prashad Singh, had on January 25, 19C0, brought, assuming to act as his guardian and next friend, were illegal; and that no partition had taken place. If Bishambhar Prashad Singh was not disqualified from sharing in the family properties, he was entitled on separation to a moiety of the property of the joint Hindu family, and if in fact he did, in such circumstances, separate from his brother Durga Prashad Singh, Musammat Harbans Kunwar was on his death entitled to a Hindu widows interest in his moiety, and on her death the plaintiff would inherit to her father. By the compromise which is in question in this suit Musammat Harbans Kunwar for herself and her daughter, the plaintiff, abandoned all claim to the property of Bishambhar Prashad Singh, admitted that Bishambhar Prashad Singh had been born blind, and was consequently excluded by Hindu law from all right of inheritance; that he and his brother Durga Prashad Singh had not separated ; and that Durga Prashad Singh was entitled to the whole family property by survivorship. By the compromise Durga Prashad Singh gave to Musammat Harbans Kunwar six villages, representing about one-fourth of the family property, for her life, with remainder to the plaintiff, and undertook to pay certain debts. It has been admitted on both sides that Bishambhar Prashad Singh was in fact blind at the time of his death. The Subordinate Judge found that Bishambhar Prashad Singh was not born blind. He also found that Musammat Harbans Kunwar, .who is a pardanishin lady, was not given a sufficient opportunity of obtaining independent advice as to the terms of the compromise before entering into it. The High Court in the appeal did not expressly find that Bishambhar Prashad Singh had or had not been born blind, but came to the conclusion that Durga Prashad Singh had reasonable grounds for believing that there existed materials for a bona fide litigation and compromise, and that the question was not whether Durga Prashad Singh was right in his claim that Bishambhar Prashad Singh had been excluded from a right to share in the family property by reason of his having been born blind, but was whether Durga Prashad Singh honestly believed that Bishambhar Prashad Singh had been born blind. The main questions upon the determination of which the decision of this appeal must, in their Lordships opinion, depend are, first, is a man who is a member of a joint Hindu family, which is governed by the law of the Mitakshara, and who becomes permanently blind after he is born, excluded by Hindu law from sharing in the family property by reason of a permanent and incurable blindness which was not congenital; secondly, was Bishambhar Prashad Singh, who was the father of the plaintiff, born blind; and, thirdly, did Bishambhar Prashad Singh and his brother, the defendant Durga Prashad Singh, separate and remain separate. The first of these questions is a question of law; the second and third are questions of fact. It will be convenient to deal at once with the first question, that of law. The first of these questions is a question of law; the second and third are questions of fact. It will be convenient to deal at once with the first question, that of law. In his written statement the defendant Durga Prashad Singh alleged that Lal Bahari Singh died " leaving him surviving two sons, namely, the plaintiffs father, Babu Bishambhar Prashad Singh, and this defendant, and Mohun Kunwar, widow, and Gulab Kunwar, mother ; but the plaintiffs father never succeeded him, nor could he succeed him, according to law, as he was congenitally blind." The first ground of Durga Prashad Singhs memorandum of appeal to the High Court was " For that, upon the entire evidence on the record, the Court below ought to have held that Bishambhar Prashad Singh was congenitally blind, and he had no right to succeed to his paternal estate; the reasons assigned by the said Court for holding otherwise are erroneous and unsound." The 17th ground of that memorandum of appeal was as follows " For that even assuming, without admitting, that Bishambar was not born blind, but became blind after birth, as alleged by the plaintiff, the Court below ought to have held that, according to the Mitakshara law of the Benares school, he was excluded from participation of a share, inasmuch as the blindness occurred before the alleged partition." It does not appear that the 17th ground of that memorandum of appeal was relied upon in the High Court, but as the point has been raised and pressed before this Board in this appeal their Lordships will now deal with it. The question as to whether blindness which is not congenital excludes by Hindu law a member of a joint Hindu family from sharing in the family property does not appear to have been decided by this Board. The text of Manu on this subject, as translated, is as follows " Eunuchs and outcasts, persons born blind or deaf, madmen, idiots, the dumb, and such as have lost the use of a limb, are excluded from a share of the heritage." (Manu, ch. 9, pl. 201.) In 1874 the High Court at Calcutta, in Mohesh Chunder Roy v. Chunder Mohun Roy (14 Beng. 9, pl. 201.) In 1874 the High Court at Calcutta, in Mohesh Chunder Roy v. Chunder Mohun Roy (14 Beng. L. R. 273.), a case in which the law of the Dayabhaga applied, decided that the blindness which, under the Hindu law as recognized in Bengal, excludes an afflicted person from inheritance, refers to congenital blindness, and not to loss of sight which supervened after birth. In that case the High Court judges had before them the text of Manu which is above quoted. In 1876 the High Court at Bombay in Murarji Gokuldas v. Parvatibai (I. L. R. 1 Bomb. 177.) decided that according to the Hindu law, as prevailing in the Bombay Presidency, blindness, to cause exclusion from inheritance, must be congenital. In the latter case Sir Michael Westropp C.J., in a learned and exhaustive judgment, after considering the texts and authoritative commentaries bearing on the subject, including the text of Manu and the Mitakshara, said that " Upon the best consideration we [he and Sargent J.] have been able to give to this question, we are of opinion that there is a considerable preponderance of authority in favour of the conclusion that blindness, to cause exclusion from inheritance, must be congenital." The Sanskrit word in the Mitakshara on this subject has been translated as "a blind man." The description "a blind man," if that be the correct translation, is somewhat indefinite, and their Lordships consider that, if that be the correct translation, it is not to be assumed that the author of the Mitakshara could have intended by the use of an ambiguous description to extend the prohibition of Manu and to exclude from a share in the heritage persons who became blind after they were born. As was observed by Jackson J. in Mohesh Chunder Roy v. Chunder Mohun Roy (2), to which reference has been made above, " A rule of Hindu law, which is relied upon as preventing the natural course of inheritance, ought to be clear and unmistakable." Rajkumar Sarvadhikari, in his Hindu Law of Inheritance, p. 956, says " Blindness, to cause exclusion from inheritance, must be congenital. Mere loss of sight which has supervened after birth is not a ground of disqualification. Mere loss of sight which has supervened after birth is not a ground of disqualification. Incurable blindness, if not con- genital, is not such an affliction as, under the Hindu law, excludes a person from inheritance." The above is, their Lordships hold, the true rule. The oral evidence on the question as to whether Bishambhar Prashad Singh was born blind is very conflicting, but on the whole their Lordships would be prepared to find on the oral evidence, if it stood alone, that Bishambhar Prashad Singhs blindness was not congenital. There are, however, facts proved by records and other documentary evidence which can lead to no other conclusion than that Bishambhar Prashad Singh was not blind when he was born, and was treated by the family and by others as a person entitled to share in the family property. [Their Lordships after considering in detail a petition by the mother and grandmother of Bishambhar and Durga for their guardianship, a petition by Bishambhar, on attaining his majority, upon which the guardianship was discharged and he became manager, and the facts and documents in connection with the partition suit brought by Mahabir, concluded their judgment as follows ] Their Lordships have without any doubt come to the conclusion that Bishambhar Prashad Singh was not born blind, and that Durga Prashad Singh could not possibly have been in ignorance or in doubt as to that fact, and had, when he induced Musammat Harbans Kunwar to enter into the compromise on behalf of the plaintiff which is in question in this suit, no honest and bona fide belief in the claim which he was making. That compromise, and the decree which was made in pursuance of it, could not be allowed to affect in any way the right of the minor, and she was entitled to the declaration which the Subordinate Judge made in her favour. In order to avoid any possible misconception arising as to the meaning of the decree of the Subordinate Judge, the following words—" whose action in connection therewith may be construed as one done for the transfer of the property left by her husband "-must be omitted from that decree. With that omission the decree of the Subordinate Judge should be affirmed, and the decree of the High Court in the respondents appeal should be set aside with costs. With that omission the decree of the Subordinate Judge should be affirmed, and the decree of the High Court in the respondents appeal should be set aside with costs. As regards the appellants appeal to the High Court with reference to the question of possession, the appeal against the High Courts decree was not argued before their Lordships, and under these circumstances the decree of the High Court will stand. The respondents Durga Prashad Singh, Ritu Singh, Lachmi Narayan Rajput, and Tori Mahton must pay the costs of the appeal to His Majesty in Council and of their appeal to the High Court. Upon the appellants cross-appeal to the High Court, the High Court made no order as regards the costs, and this decree stands. Their Lordships will humbly advise His Majesty accordingly.