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Vellikannu vs R. Singaperumal & Anr on 6 May, 2005

Vellikannu vs R. Singaperumal & Anr on 6 May, 2005
Author: A Mathur
Bench: A Bhan, A Mathur

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
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
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;

(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.  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
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  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)
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 ”

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”

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
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

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
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 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.

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