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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.