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CASE NO.:

Appeal (civil) 4838 of 1999

PETITIONER:

Vellikannu

RESPONDENT:

R. Singaperumal & Anr.

DATE OF JUDGMENT: 06/05/2005

BENCH:

ASHOK BHAN & A.K. MATHUR

JUDGMENT:

J U D G M E N T

A.K. MATHUR, J.

This appeal is directed against the judgment of the

learned Single Judge of Judicature at Madras whereby the

learned Single Judge by his order dated 6th March, 1997 has

allowed the Second Appeal No. 773 of 1983 filed by the

respondent-1st Defendant herein.

Brief facts which are necessary for disposal of this appeal

are;

That an Original Suit NO. 87/1978 was filed in the Court of

the District Munsif, Melur by the plaintiff-appellant (herein).

The schedule properties are the self-acquired properties of

late Ramasami Konar and the first defendant was the only son of

Ramasami Konar and the plaintiff is the wife of the first

defendant. Wife of Ramasami Konar was already divorced and

married with some other person and was residing separately. It

is alleged that the first defendant in the suit married the plaintiff-

appellant and both were residing as husband and wife. On 10th

October, 1972 the first defendant murdered his father,

Ramasami Konar and was convicted under Section 302 IPC for

life imprisonment. The conviction of the first defendant was

confirmed by the High Court but the High Court recommended

the Government to reduce the sentence to the period already

undergone. The first defendant was released in July, 1975.

Since the first defendant murdered his father, he was not entitled

to succeed to the estate of his deceased father and as such the

claim of the plaintiff was that she alone was entitled to all the

properties left by the deceased Ramasami Konar. According to

the plaintiff, the first defendant must be deemed to have

predeceased as provided under Section 25 read with Section 27

of the Hindu Succession Act. She claimed to be the widow of the

first defendant and claimed to be the owner of all the properties

left by Ramasami Konar as coparcener. After the release of the

first defendant from the prison, first defendant lived with the

plaintiff for some time but after some time she was driven out of

the house. Second defendant is already impleaded in the suit

as tenant claiming under first defendant. Plaintiff, therefore,

prayed that she may be granted the relief of declaration as she

is entitled to inherit the entire estate of the deceased Ramasami

Konar. As against this it was contended by the first defendant

that the suit was not maintainable as the plaintiff is not the legal

heir of Ramasami Konar. It was alleged that all the properties

acquired by the Ramasami, were joint family properties and the

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first defendant has acquired the same by survivorship. The

Trial Court by Order dated 31st March, 1980 held that all the

properties are joint family properties of the deceased Ramasami

Konar and first defendant. The second defendant is a cultivating

tenant. The first defendant having murdered his father is not

entitled to claim any right under Section 6 read with Sections 25

& 27 of the Act but as per proviso to Section 6 of the Hindu

Succession Act plaintiff is entitled to a decree for half share and

accordingly it was granted to the plaintiff. This matter was taken

up in appeal by defendant No. 1. The Lower Appellate Court

also confirmed the finding of the Trial Court but modified the

decree that it may be treated as preliminary decree. The Lower

Court also held that first defendant must be treated as non-

existent. The plaintiff became a Class I heir under Schedule 1 of

the Hindu Succession Act and she was entitled to a share in the

property. The appeal was dismissed.

Aggrieved against this, the first defendant preferred a

second appeal before the High Court.

The High Court at the time of admission of the Second

Appeal, framed following substantial questions of law.

"1. Whether Ex.A.2 judgment in the Criminal case is

conclusive on the question of exclusion from

inheritance in the present proceedings?

and

2. Whether the exclusion from inheritance would

cover enlargement of interest by survivorship, in

the light of Section 6 of Hindu Succession Act ?"

So far as the question No. 1 is concerned, the High Court

held that the judgment of the Criminal Court can be taken into

consideration. But the main question which was addressed by

the High Court was whether the plaintiff can inherit the

properties from the estate of her deceased father-in-law,

Ramasami Konar and what is the effect of Section 25, Section 27

read with Section 6 and Section 8 of the Hindu Succession Act.

It was not disputed that the properties of the Ramasami

Konar were joint family properties in which the defendant No. 1

was also one of the member and the parties are governed by the

Mitakshara School of Hindu Law.

The learned Single Judge of the High Court after hearing

the parties and considering the relevant law on the subject in

detail, came to the conclusion that the view taken by both the

Courts below cannot be sustained. It was held by the learned

Single Judge that plaintiff cannot claim as a widow of the son of

Ramasamy Konar. It was observed that plaintiff cannot claim

one half share in the property being coparcenary property under

Proviso to Section 6 of the Hindu Succession Act . It was also

observed that she is entitled to half share so long as the

deceased father and son had not partitioned the property. The

first defendant/ respondent No 1 herein cannot be said to have

inherited any share from the victim (Ramasamy Konar) and the

Plaintiff can claim as a widow only if there is a succession to the

estate of the victim. If there is no succession, the deeming

provision that the first defendant shall be deemed to have died

before the victim (his father) also will not apply and she cannot

claim as a widow of his pre-deceased son. It was also held that

Section 6 of the Hindu Succession Act will also not apply. The

principle of justice, equity and public policy will apply and the

plaintiff cannot be treated as a fresh stock of descent and

defendant No.1 shall be treated as a non-existent as if he

never existed. Therefore, the plaintiff also cannot claim as his

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widow. It was also observed that since plaintiff claims as a

widow of the defendant No. 1 and he is disqualified, same

disqualification equally applies to her for she cannot claim

through murderer husband.

Learned single Judge allowed the appeal of the defendant

No. 1/respondent No. 1 (herein) and judgment and decree of the

Courts below were set aside. The suit was dismissed. Hence

the present appeal.

Learned counsel for the appellant tried to persuade us that

appellant being the sole female survivor of the Joint Hindu

Property as her husband stands disqualified, she under proviso

to Section 6 of the Act, is entitled to the whole of the estate as a

sole survive member of the coparcenary property read with

Section 8 of the Act as a Class I heir. As against this, learned

counsel for the respondent-defendant has submitted that this

disqualification which was attached to the son equally applies in

the case of the wife as she is claiming the estate because of her

marriage with the respondent and if he is disqualified, then she

is also equally disqualified to claim any property being a

coparcener from the estate of her deceased father in law.

In order to appreciate the rival contention, it would be

relevant to reproduce provisions of the Hindu Succession Act.

Sections 6, 8, 25 and 27 of the Act which read as under:

"Section 6. Devolution of interest in coparcenary

property- When a male Hindu dies after the

commencement of this Act, having at the time of his

death an interest in a Mitakshara coparcenary

property, his interest in the property shall devolve by

survivorship upon the surviving members of the

coparcenary and not in accordance with this Act:

Provided that, if the deceased had left him

surviving a female relative specified in Class I of the

Schedule or a male relative specified in that class

who claims through such female relative, the interest

of the deceased in the Mitakshara coparcenary

property shall devolve by testamentary or intestate

succession, as the case may be, under this Act and

not by survivorship.

Explanation 1.- For the purposes of this

section, the interest of a Hindu Mitakshara

coparcener shall be deemed to be the share in the

property that would have been allotted to him if a

partition of the property had taken place immediately

before his death, irrespective of whether he was

entitled to claim partition or not..

Explanation 2.- Nothing contained in ;the

proviso to this section shall be construed as enabling

a person who has separated himself from the

coparcenary before the death of the deceased of any

of his heirs to claim on intestacy a share in the

interest referred to therein."

Section 8.- General rules of succession in the

case of males.- The property of a male Hindu dying

intestate shall devolve according to the provisions of

this Chapter :-

(a) firstly, upon the heirs, being the relatives

specified in class I of the Schedule;

(b) secondly, if there is no heir of class I, then upon

the heirs, being the relatives specified in class II

of the Schedule;

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(c) thirdly, if there is no heir of any of the two

classes, then upon the agnates of the deceased;

and

(d) lastly, if there is no agnate, then upon the

cognates of the deceased.

Section 25.- Murderer disqualified. \026 A person

who commits murder or abets the commission of

murder shall be disqualified from inheriting the

property of the person murdered, or any other

property in furtherance of the succession to which he

or she committed or abetted the commission of the

murder.

Section 27.- Succession when heir disqualified -

If any person is disqualified from inheriting any

property under this Act, it shall devolve as if such

person had died before the intestate."

As per Section 6 of the Hindu Succession Act, if a male

Hindu dies after commencement of this Act, an interest in a

Mitakshara coparcenary property shall devolve by survivorship

upon the surviving members of the coparcenary and not in

accordance with the Act. So far as the present case is

concerned, the concurrent finding of the fact is that the

deceased Ramasamy Konar was governed by Mitakshara Law

and the property was the coparcenary property. But he died

iintestate. Therefore, as per Section 6, the property shall

devolve by survivorship upon the surviving members of the

coparcenary and not by Section 6 of the Act and at the same

time there is proviso to Section which qualifies the main Section

that if deceased left a surviving female relative specified in class

I of the Schedule or a male relative specified in that class who

claims through such female, the interest of deceased in

Mitakshara coparcenary property shall devolve by testamentary

or intestate succession, as the case may be and not by

survivorship.

So far as the property in question is concerned, there is a

finding of the Courts below that the property is a coparcenary

property and if that being so, if the defendant No. 1 had not

murdered his father then perhaps a thing would have taken a

different shape. But what is the effect on the succession of the

property of the deceased father when son has murdered him. If

he had not murdered his father he would have along with his wife

would have succeed in the matter. So far as the rights of

coparceners in the Mitakshara Law are concerned, son acquires

by birth or adoption a vested interest in all coparcenery property

whether ancestral or not and whether acquired before or after

his birth or adoption, as the case may be, as a member of a joint

family. This is the view which has been accepted by all the

Authors of the Hindu Law. The famous principles of Mulla , 15th

Edition (1982) at pages 284 and 285, the learned Author has

stated thus:

"The essence of a coparcenary under the Mitakshara

Law is unity of ownership. The ownership of the

coparcenary property is in the whole body of

coparceners. According to the true notion of an

undivided family governed by the Mitakshara Law, no

individual members of that family, whilst it remains

un-divided, can predicate, of the joint and undivided

property, that he that particular member, has a

definite share, one third or one-fourth. His interest is

a fluctuating interest, capable or being enlarged by

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deaths in the family, and liable to be diminished by

births in the family. It is only on a partition that he

becomes entitled to a definite share. The most

appropriate term to describe the interest of

coparcener in coparcenary property is "undivided

coparcenary interest". The nature and extent of that

interest is defined in Section 235. The rights of

each coparcener until a partition takes place consist

in a common possession and common enjoyment of

the coparcenary property. As observed by the privy

council of Katama Natchiar versus The Rajah of

Shivagunga, " there is community of interest and

unity of possession between all the members of the

family, and upon the death of any one of them the

others may well take by survivorship that in which

they had during the deceased's lifetime a common

interest and a common possession."

Likewise, S.V. Gupta, author of Hindu Law, Vol. 1,

Third Edition (1981) at page 162, the learned author deals with

the rights of a coparcener. He says thus:-

"Until partition, coparcener is entitled to:-

(1) join possession and enjoyment of joint family

property

(2) the right to take the joint family property by

survivorship, and

(3) the right to demand partition of the joint family

property"

At page 164, the learned author deals with the right of

survivorship. He says;

"while the family remains joint, its property continues to

devolve upon the coparcener for the time being by

survivorship and not by succession. Consequently, on

the death of a coparcener the surviving coparceners

take his undivided interest in the joint family property

by survivorship. There is community of interest and

unity of possession between all the members of the

family, and upon the death of any of them, the others

may well take by survivorship that in which they had

during the deceased's life time a common interest and

a common possession."

The learned Author further says :-

A coparcener who is disqualified by reason of a

disability (such as insanity) from taking a share on

partition may nevertheless take the whole property by

survivorship."

At page 165, the learned Author has further said

thus:

By survivorship a coparcener does not obtain the

share of a deceased coparcener as his representative;

strictly speaking it does not pass to him the effect if

merely to enlarge his share in what he already owns in

the aggregate. Surviving coparceners are not

therefore, the legal representatives of a deceased

coparcener".

In N.R. Raghavachariar's Hindu Law \026 Principles and

precedents " 8th Edition (1987) at page 230 under the heading

'Rights of Coparceners' it is said thus:-

"The following are the rights of a coparcener :- (1)

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Right by birth (2) Right by survivorship, (3) Right to

partition, (4) Right to joint possession and enjoyment,

(5) Right to restrain unauthorized acts (6) Right of

alienation, (7) Right to accounts and (8) Right to make

self-acquisition".

While dealing with "Right by birth' learned Author says thus:-

"Every coparcener gets an interest by birth in the

coparcenary property. This right by birth relates back

to the date of conception. This, however, must not be

held to negative the position that coparcenary property

may itself come into existence after the birth of the

coparcener concerned \005"

While dealing with Right of survivorship, it is said thus:-

"The system of a joint family with its incident of

succession by survivorship is a peculiarity of the Hindu

Law. In such a family no member has any definite share

and his death of somehow ceasing to be a member of

the family causes no change in the joint status of the

family. Where a coparcener dies without male issue his

interest in the joint family property passes to the other

coparceners by survivorship and not be succession to his

own heir. Even where a coparcener becomes afflicted

with Lunacy subsequent to his birth, he does not lose his

status as a coparcener which he has acquired by his

birth, and although his lunacy may under the Hindu Law

disqualify him from demanding a share in a partition in his

family. Yet where all the other coparceners die and he

becomes the sole surviving member of the coparcenary,

he takes the whole joint family property by survivorship,

and becomes a fresh stock of descent to the exclusion of

the daughter of the last pre-deceased coparcener, a case

of leprosy of the last surviving coparcener. The beneficial

interest of each coparcener is liable to fluctuation,

increasing by the death of another coparcener and

decreasing by the birth of a new coparcener\005"

Therefore, it is now settled that a member of coparceners

acquires a right in the property by birth. His share may

fluctuate from time to time but his right by way of survivorship

in copracenary property in Mitakshara Law is a settled

proposition.

In this connection, a reference may be made in the case

of State Bank of India Vs. Ghamandi Ram reported in AIR

1969 SC 1333, it was held thus:-

"According to the Mitakshara School of Hindu Law

all the property of a Hindu Joint Family is held in

collective ownership by all the coparceners in the

quasi-corporate copacity. The textual authority of

the Mitakshara Lays down in express terms that the

joint famil;y property is held in trust from the joint

family members then living and thereafter to be both

( See Mitakshara, Chaper I, 1-27) The incidents of

coparcernership under the Mitakshara Law are: first

the lineal male descendants of a person upto the

third generation, acquire on birth ownership in the

ancestral properties of such person; Secondly that

such descendants can at any time work out their

rights by asking for partition; thirdly, that till partition

each member has got ownership extending over the

entire property co- jointly with the rest; forthly, that

as a result of such co-ownership the possession

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and enjoyment of the properties is common fifthly

that no alienation of the property is possible unless

it before necessity, without the concurrence of the

coparceners, and sixthly; that the interest of a

deceased member lapses on his death to the

survivors. A coparcenary under the Mitakshara

School is a creature of law and cannot arise by act

of parties except in so far that on adoption the

adopted son becomes a co-parcener with his

adoptive father as regards the ancestral properties

of the letter."

The concept of coparcener as given in the Mitakshara School

of Hindu Law as already mentioned above, is that of a joint

family property wherein all the members of the coparceners

share equally. In this connection a reference may be made to a

decision of this Court in the case of State of Maharashtra vs.

Narayan Rao Sham Rao Deshmukh & Ors. reported in (1985) 2

SCC 321 in which Their Lordships have held as follows:

" A Hindu coparcenary is however, a

narrower body than the joint family. Only

males who acquire by birth an interest in the

joint or coparcenary property can be

members of the coparcenary or

coparceners. A male member of a joint

family and his sons, grandsons and great

grandsons constitute a coparcenary. A

coparcener acquires right in the

coparcenary property by birth but his right

can be definitely ascertained only when a

partition takes place. When the family is

joint, the extent of the share of a coparcener

cannot be definitely predicated since it is

always capable of fluctuating."

Therefore, in view of various decisions of this Court it appears

that Defendant No.1 and the plaintiff who was married to

Defendant No.1 were members of joint Hindu family. If the

defendant- appellant had not incurred the disqualification, then

they would have inherited the property as per Mitakshara School

of Hindu Law. But the question is that when the sole male

survivor had incurred the disqualification can he still claim the

property by virtue of Mitakshara School of Hindu Law ? If he

cannot get the property by way of survivorship, then the question

is whether his wife who succeeds through the husband can

succeed to the property? Our answer to this question is in

negative. In fact, prior to the amendment of the Hindu

Succession Act, Sections like 25 & 27 were not there but the

murderer of his own father was disqualified on the principle of

justice, equity and good conscience and as a measure of public

policy. This position of law was enunciated by the Privy Council

way back in 1924 in the case of Kenchava Kom Sanyellappa

Hosmani & Anr. vs. Girimallappa Channappa Somasagar

reported in AIR 1924 PC 209 wherein Their Lordships have held

as follows:

" In their Lordships' view it was

rightly held by the two Courts below

that the murderer was disqualified ;

and with regard to the question

whether he is disqualified wholly or

only as to the beneficial interest

which the Subordinate Judge

discussed, founding upon the

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distinction between the beneficial

and legal estate which was made

by the Subordinate Judge and by

the High Court of Madras in the

case of Vedanayaga Mudaliar v.

Vedammal , their Lordships reject,

as did the High Court here, any

such distinction. The theory of legal

and equitable estates is no part of

Hindu law, and should not be

introduced into discussion.

The second question to be

decided is whether the title can be

claimed through the murderer. If

this were so, the defendants as the

murderer's sisters, would take

precedence of the plaintiff, his

cousin. In this matter also, their

Lordships are of opinion that the

Courts below were right. The

murderer should be treated as non-

existent and not as one who forms

the stock for a fresh line of descent.

It may be pointed out that this view

was also taken in the Madras case

just cited."

Their Lordships also explained the decision in the case of

Gangu vs. Chandrabhagabai reported in (1908) 32 Bom. 275

and held as follows :

" It was contended that a different ruling

was to be extracted from the decision of the

Bombay High Court in Gangu v.

Chandrabnagabai. This is not so. In that

case, the wife of a murderer was held

entitled to succeed to the estate of the

murdered man but that was not because the

wife deduced title through her husband, but

because of the principle of Hindu family law

that a wife becomes a member of her

husband's gotra, an actual relation of her

husband's relations in her own right, as it is

called in Hindu law a gotraja-sapinda. The

decision therefore has no bearing on the

present case. "

Therefore, the principle which has been enunciated by their

Lordships is in no uncertain terms totally disinherit the son who

has murdered his father. Their Lordships have observed as

follows:

" A murderer must for the purpose of the

inheritance, be treated as if he were dead

when the inheritance opened and as not

being a fresh stock of descent; the

exclusion extends to the legal as well as

beneficial estate, so that neither he can

himself succeed nor can the succession be

claimed through him."

This Privy Council decision made reference to the

decisions of the High Courts of Madras and Bombay and their

Lordships have approved the ratio contained in those decisions

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that a murderer should be totally disinherited because of the

felony committed by him. This decision of the Privy Council was

subsequently followed in the following cases :

i. AIR (29) 1942 Madras 277 (K.Stanumurthiayya &

Ors. v. K.Ramappa & Ors.)

ii. AIR 1953 All. 759 ( Nakchhed Singh & Ors. vs. Bijai

Bahadur Singh & Anr.)

iii. AIR 1956 All. 707 (Mata Badal Singh & Ors. vs.

Bijay Bahadur Singh & Ors.)

iv. AIR 1982 Bomb. 68 ( Minoti vs. Sushil Mohansingh

Malik & Anr.).

This position of law was incorporated by way of Section 25

of the Hindu Succession Act, 1956 as quoted above, which

clearly enunciates that a person who commits murder or abates

the commission of murder shall be disqualified from inheriting the

property of the person murdered, or any other property in

furtherance of the succession to which he or she committed or

abetted the commission of the murder. In fact, the objects and

reasons also makes a reference to the Privy Council judgment

(supra). The objects and reasons for enacting Section 25 read

as under :

" A murderer, even if not disqualified under

Hindu Law from succeeding to the estate of

the person whom he has murdered, is so

disqualified upon principles of justice, equity

and good conscience. The murdered is not

to be regarded as the stock of a fresh line of

descent but should be regarded as non-

existent when the succession opens."

Therefore, once it is held that a person who has murdered

his father or a person from whom he wants to inherit, stands

totally disqualified. Section 27 of the Hindu Succession Act

makes it further clear that if any person is disqualified from

inheriting any property under this Act, it shall be deemed as if

such person had died before the intestate. That shows that a

person who has murdered a person through whom he wants to

inherit the property stands disqualified on that account. That

means he will be deemed to have predeceased him. The effect

of Section 25 read with Section 27 of the Hindu Succession Act,

1956 is that a murderer is totally disqualified to succeed to the

estate of deceased. The framers of the Act in the objects and

reasons have made a reference to the decision of the Privy

Council that the murderer is not to be regarded as the stock of a

fresh line of descent but should be regarded as non-existent.

That means that a person who is guilty of committing the murder

cannot be treated to have any relationship whatsoever with

deceased's estate.

Now, adverting to the facts of the present case, the effect

of Sections 25 and 27 is that the respondent No.1 cannot inherit

any property of his father as he has murdered him on the

principle of justice, equity and good conscience and the fresh

stock of his line of descent ceased to exist in that case. Once

the son is totally disinherited then his whole stock stands

disinherited i.e. wife or son. The defendant-respondent No.1 son

himself is totally disqualified by virtue of Sections 25 and 27 of

the Hindu Succession Act and as such the wife can have no

better claim in the property of the deceased, Ramasamy Konar.

Therefore, as a result of our above discussion, we are of

opinion that the view taken by the learned Single Judge of the

High Court of Madras is correct that the plaintiff is not entitled to

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inherit the estate of the deceased, Ramasamy Konar and the

learned Single Judge has rightly set aside the orders of the two

courts below. Since we cannot decide this appeal without

deciding the right of the respondent No.1 as the right of the

appellant flows therefrom as his wife i.e. the plaintiff. Therefore,

it was necessary for us to first decide whether the respondent

No.1 could succeed or inherit the estate of his deceased father.

When son cannot succeed then the wife who succeeds to the

property through the husband cannot also lay a claim to the

property of her father-in -law. The appeal is thus dismissed. No

order as to costs.