IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23.12.2011 CORAM : THE HONOURABLE MR.JUSTICE S.MANIKUMAR Second Appeal No.225 of 2006 M.Nagarajan ... Defendant/Appellant/Appellant Vs. V.M.Nagammal ... Plaintiff/Respondent/Respondent Prayer : Second Appeal filed under Section 100 of Civil Procedure Code against the Judgment and Decree dated 30.08.2005 made in A.S.No.7 of 2004 on the file of the Subordinate Court, Gudiyatham, in dismissing the appeal and confirming the judgment and decree dated 23.01.2004 made in O.S.No.700 of 2000 on the file of the Court of the Principal District Munsif Court, Gudiyatham. For Appellant : Mr.K.Sridhar For Respondent : No appearance J U D G M E N T Mother-in-law has filed the suit against the son-in-law, for a judgment and decree, to declare that she is the only heir of her daughter Muniyendra. Upon consideration of oral and documentary evidence let in by both parties, by judgment and decree in O.S.No.700/2000, the learned Principal District Munsif, Gudiyatham, granted a decree, as prayed for. Aggrieved by the same, the defendant/son-in-law preferred an appeal in A.S.No.7 of 2004, on the file of the Subordinate Court, Gudiyatham. The lower appellate Court has confirmed the decision, stated supra. Assailing the concurrent judgments and decrees, the defendant has preferred this second appeal. 2. For the sake of convenience, the parties are addressed as per their litigative status in the lower Court. 3. The detailed pleadings are as follows:- According to the plaintiff, her daughter Muniyendra was employed https://hcservices.ecourts.gov.in/hcservices/ as a Typist in Excise department in the office of the Tahsildar, at Gudiyatham. Her husband/defendant murdered Muniyendra and her children on 17.01.1983, at Gudiyatham. The defendant was tried and sentenced to death by the Learned District Sessions Judge, North Arcot at Vellore, and on appeal, it was modified to imprisonment for life by the High Court. The plaintiff has further stated that the deceased Muniyendra was entitled to benefits, such as, Gratuity, General Provident Fund and other benefits from the Excise Department and that the plaintiff is the only heir. According to her, as the defendant was the cause for the murder, he is disqualified from inheriting the property of the person murdered. 4. The plaintiff has further submitted that as she is the only legal heir to inherit to the property of her deceased daughter, she had applied for a succession certificate in O.P.No.54/90, on the file of the learned Subordinate Judge, Vellore, to receive the abovesaid benefits and also other amounts, which stood in the name of the deceased Muniyendra in the Co-operative Urban Bank Limited, Gudiyatham. After enquiry, the learned Subordinate Judge, Vellore, granted a Succession Certificate to the plaintiff and on the strength of the same, the plaintiff has also drawn the amounts due and payable by the department. However, when she applied for family pension to which, she is legitimately entitled to, the Tahsildar, Gudiyatham, sent a communication, stating that the plaintiff should get a declaration from the Court to the effect that she is the only heir of the deceased Muniyendra. According to the plaintiff, the defendant, her son-in-law, the murderer alone was responsible for non payment of family pension. It is also her further submission that when the department granted all the other benefits on the basis of Succession Certificate issued by the Learned Subordinate Judge, Vellore, in O.P.No.54/90 dated 26.03.1991, she ought to have been paid family pension also. As the plaintiff was an aged person with no other source of income for her livelihood and dependent on the family pension of the deceased Muniyendra, she has filed the suit for the relief, stated supra. 5. The defendant in the written statement, has denied the contention that the plaintiff's daughter Muniyendra and her children were murdered on 17.01.1983 by him at Gudiyatham. He has also denied the contention that he was convicted for life imprisonment. According to him, the plaintiff is not entitled to receive the death benefits of the deceased Muniyendra, such as, Gratuity, General Provident Fund and other benefits from the Department. He has also denied the contention regarding the issuance of Succession Certificate in O.P.No.54/90 and the orders passed thereon. The defendant has further stated that his wife and children were murdered by some unknown persons on 16.01.1983 and that he is innocent. He has also alleged that the said deceased https://hcservices.ecourts.gov.in/hcservices/ Muniyendra was having illegal contacts with other persons. According to the defendant, on the date of institution of the suit, the plaintiff was living with her son Mr.Mohan, an Engineering Graduate, and that he was receiving salary of Rs.25,000/- per month. For the reasons stated supra, the defendant has prayed for dismissal of the suit. 6. On the above pleadings, the trial Court has framed the following issues for consideration:- 1) Whether the plaintiff is the legal heir of deceased Muniyendra? 2) Whether the plaintiff alone is the legal heir of deceased Muniyendra? 3) Whether the defendant is the legal heir of the deceased Muniyendra? 4) Whether the plaintiff is entitled to declaration relief as prayed for? 5) To what other reliefs, the plaintiff is entitled to? 7. The plaintiff examined herself as PW1. Exs.A1 to A4 have been marked on her side. On the side of the defendant, two witnesses have been examined and Exs.B1 and B2 have been marked. On evaluation of oral and documentary evidence let in by both parties, the learned District Munsif, by judgment and decree in O.S.No.700/2000 dated 23.01.2004, held that the plaintiff alone is the legal heir of deceased Muniyendra and accordingly, granted a decree. Being aggrieved by the same, the defendant filed an appeal in A.S.No.7 of 2004, on the file of the learned Subordinate Judge, Gudiyatham, who, after considering the material on record with reference to the point for consideration in the appeal, as to whether the judgment and decree of the lower Court has to be set aside, or not, by observing that in view of the statutory disqualification under Section 25 of the Hindu Succession Act, which states that a person who commits murder shall be disqualified from inheriting the property of the person murdered, concurred with the views expressed by the trial Court. Untimately, the lower appellate Court dismissed the appeal. 8. Aggrieved by the abovesaid judgments and decrees, the second appeal has been preferred by the husband of the deceased Muniyendra, which has been entertained on the following substantial questions of law:- 1) Is not the decision of the Courts below in violation of Sections 25, 27, 15, and 16 of the Hindu Succession Act? https://hcservices.ecourts.gov.in/hcservices/ 2) Is not the husband appellant a legal heir to the deceased wife under Section 15(1)(a) and does he not exclude the respondent mother who falls under Section 159(1)(c). 3) Whether a suit for declaration without a consequential relief sustainable in law? 4) Is not Section 25 of the Hindu Succession Act qualified by Section 27 under which a disqualified person is deemed by a legal fiction to have died before the intestate and in such case will not the appellant's father who comes under Section 15(1)(b) inherit the property ahead of the respondent? 9. Assailing the impugned judgments on the substantial questions of law and referring to the prayer made in the plaint, Mr.K.Sridhar, learned counsel for the appellant/defendant, submitted that the suit has been instituted only for a relief of declaration, declaring that the plaintiff as the only legal heir of her deceased daughter Muniyendra, and in the absence of any consequential prayer, the Courts below have exceeded in their jurisdiction in holding that the plaintiff is also entitled for receiving all the death benefits of the deceased. In this context, he invited the attention of this Court to the issues framed by the lower Court and also submitted that in the absence of any specific issue regarding entitlement of the respondent/plaintiff to the death benefits, the abovesaid finding requires interference. 10. Referring to Sections 15 and 16 of the Hindu Succession Act 1956, wherein, general rules of succession in the case of female Hindu and order of succession and manner of distribution among the heirs of the female Hindu have been set out, learned counsel for the appellant/defendant, further submitted that the plaintiff who has sought for a declaration that she is the only heir of the deceased Muniyendra, ought to have furnished details of the other existing heirs of the husband, the appellant/defendant herein, and that the lower Court ought to have adjudged the issue of legal heirship with reference to the line of succession to the property of the deceased. 11. Inviting the attention of this Court to the mitigating factors considered by this Court in Criminal Appeal No.245/1984 dated 05.19.1984, for modifying the sentence of death into one of imprisonment for life, on each of the four counts charged against the appellant/defendant, learned counsel for the appellant/defendant further submitted that though an unfortunate event had occurred out of rage, and that the the appellant/defendant who had undergone the sentence and enlarged, is entitled, to atleast the death benefits of the deceased Muniyendra and in this context, he also submitted that as https://hcservices.ecourts.gov.in/hcservices/ family pension cannot be said to be a property, Section 25 of the Hindu Succession Act will not be attracted, to disentitle the defendant from claiming family pension. According to the learned counsel for the appellant/defendant, the above provision would be attracted only, if the murder committed is with a motive of securing the property which stands in the name of the victim and not otherwise. As murder alleged is not for the above purpose, it is the contention of the appellant/defendant that Section 25 of the Act is not applicable. 12. Though the respondent/plaintiff has been served and her name is also shown in the cause list, there is no appearance on her behalf either in person or through pleader. In the abovesaid circumstances, this Court is constrained to consider the correctness of the impugned judgments, on the basis of the material on record and the submissions of the learned counsel for the appellant/defendant. 13. Pleadings and material on record disclose that prior to the death of the wife of the appellant/defendant, she was employed as a Typist in Excise Office of the Tahsildar, Gudiyatham, and as such she was a Government Servant. At the outset, the contention that the defendant has not murdered his wife and children, is liable to be rejected, for the reason that after trial in S.C.No.106 of 1983 on the file of Additional Sessions Judge, Vellore, he has been convicted and sentenced to death, which has been lateron modified into life imprisonment, in Criminal Appeal No.245/1984 dated 05.19.1984. Mother of the victim, respondent/plaintiff, has submitted that since the murderer/husband is disqualified from inheriting the property of the person murdered, she is entitled to inherit the property of her deceased daughter and therefore, applied for Succession Certificate to receive Gratuity, General Provident Fund and other benefits from Excise Department, Government of Tamil Nadu, and also the amounts which stood in the name of her deceased daughter in Co-operative Urban Bank Ltd., Gudiyatham. It is not in dispute that the learned Subordinate Judge, Vellore, has also issued Ex.A1 Succession Certificate in O.P.No.54/90 dated 26.03.1991, to receive the following amounts:- https://hcservices.ecourts.gov.in/hcservices/ S.N o Description of amount Amount Department 1 Family Benefit Fund Rs.10,000/- Taluk Office Excise Section 2 Gratuity Rs. 3,000/- -do- 3 General Provident Fund Rs. 3,000/- -do- 4 Recurring deposit amount Rs. 600/- Co-operative Urban Bank Limited, Gudiyattam 5 Savings Bank Account Rs. 314.40 -do- Total Rs.16,914.40 14. The above certificate has been granted to collect the amounts under various heads with interest thereon and it is the case of the plaintiff that she has also received the abovesaid amounts. When the department had granted all the benefits on the basis of the Succession Certificate issued by the learned Subordinate Judge, Vellore, in O.P.No.54/90 dated 26.03.1991, it is the grievance of the respondent/plaintiff that family pension alone has not been sanctioned to her, which has given rise to this litigation with a prayer to declare the plaintiff, as the only heir of her deceased daughter Muniyendra. 15. The appellant/defendant has contended that as per Sections 15 and 16 of the Hindu Succession Act, 1956, which sets out the general rules of succession in the case of female Hindu, the order of succession and manner of distribution among the heirs of female Hindu, husband of the female Hindu dying intestate is the Class I heir along with the sons and daughters (including the children of any pre- deceased son or daughter) and he is entitled to inherit the property of his wife. It is his further submission that even assuming without admitting for argument sake, that the defendant disqualified under Section 25 of the Act, and in the absence of the above, as per Section 16 of the Act, the heirs of the husband ought to have been preferred to those in the succeeding entry 15(c), upon the mother and father of the female Hindu dying intestate. Though the learned counsel for the appellant/defendant during the course of arguments submitted that when the appellant/defendant's father is alive, and that the plaintiff ought to have furnished the details of the existing heirs of the husband in the plaint and that therefore, there is a failure on the part of the Courts below in not adjudging the issue of legal heirship in proper perspective, with reference to the line of succession to the property of the deceased, nowhere in the written statement, the defendant has pleaded that there were other legal heirs, at the time of institution of the suit and no evidence has been let in support of https://hcservices.ecourts.gov.in/hcservices/ the same. It is well settled that in the absence of specific pleadings, no evidence can be let in nor any arguments be advanced. Further, there is also no claim from the heirs of the husband and in the abovesaid circumstances, the contention of the learned counsel for the appellant/defendant that the Courts below ought to have conducted a roving enquiry with reference to the above aspect, cannot be countenanced. The plaintiff also cannot be found fault with, for not impleading any of the surviving legal heirs, in the absence of any details in the written statement filed by the appellant/defendant. Hence, substantial question of law No.4 lacks support both on pleadings and evidence. 16. As stated supra, the respondent/plaintiff has received Family Benefit Fund, Gratuity, General Provident Fund, Savings from the bank. It is the contention of the appellant/defendant that he is entitled to be the legal heir of the deceased Muniyendra, his wife, on the ground that even assuming that he was found guilty of an offence under Section 302 IPC, the said act is not for the purpose of accelerating his succession to the property of the victim. 17. At this juncture, it is relevant to consider the decision of the Bombay High court in Minoti Vs. Sushil Mohansingh Malik and another, reported in AIR 1982 Bombay 68, the plaintiff, a minor filed a suit through her next friend maternal grandmother, for a declaration that the money lying in the special Savings Bank Account No.14/1168, with the State Bank of Hyderabad, Juhu Branch, Bombay exclusively belongs to her deceased mother, as it was self-acquired and self- earned separate property and in view of the provision under Section 25 of the Hindu Succession Act, 1956, daughter alone is entitled to get the said amount. The defendant in the above case was prosecuted for an offence punishable under Section 302 of IPC and after considering the evidence on record, the Sessions Court came to the conclusion that the accused committed the said act of assault, while he was deprived of the power of self-control by grave and sudden provocation given to him by the deceased. As as result of this finding he was convicted for the offence punishable under Section 304 IPC and was sentenced to suffer rigorous imprisonment for seven years and to pay a fine of Rs.1,000/- or in default to suffer further rigorous imprisonment for six months. On the above finding, it was contended that as the defendant No.1 was responsible for committing the murder of deceased and in view of the provision, Section 25 of the Hindu Succession Act, hence not entitled to succeed to the property of the deceased. The trial Court came to the conclusion that in view of the conviction of the defendant No.1 under Section 304 Part I of IPC, he is not disqualified under Section 25 of the Hindu Succession Act. Being aggrieved by a portion of the judgment, directing the plaintiff therein to pursue a separate remedy in respect of some amounts representing the proceeds of lottery prizes credited in the name of the deceased, an appeal was filed by the plaintiff before the https://hcservices.ecourts.gov.in/hcservices/ appellate Court. As the word 'murder' is not defined in Hindu Succession Act and defined only in IPC and in as much as the accused was convicted only under Section 304 Part I IPC alone, culpable homicide not amounting to murder, it was contended on behalf of the defendant that the learned trial Judge was right in coming to a conclusion that the defendant No.1 was not disqualified to succeed to the property of the deceased, under Section 25 of the Hindu Succession Act. After considering the intention of the legislation in giving a statutory approval to the principles of justice, equity and good conscience, which disqualifies a murderer or a person who abets commission of murder from inheriting the property of the person murdered and the proper interpretation to be given to the word 'murder' the Bombay High Court at paragraph Nos.7, 10 and 12 held as follows:- 7. It is an admitted position that the word "murder" is not defined in the Hindu succession Act, It appears that S. 25 was introduced in the Hindu succession Act practically to give statutory sanction to the view expressed by the privy council in kanchawa v. Girimallappa AIR 1924 PC. 209 while dealing with such a contention the privy Council; observed that there is much to be said in support of the principles of jurisprudence which can be traced in Hindu Law, which would warrant in inference that a man cannot take advantage of his own wrong. The privy council further observed that this principle is the principle of equity, justice and good conscience, which disqualifies and excludes the murderer from inheriting any interest in the property of the person murdered. The privy council also held that the murderer in such case should be treated as non-existent and not as one who forms the stock for fresh line of descent. Thus, it appears that S.s 25 and 27 were enacted by the legislature to give statutory approval to the principles of equity, justice and good conscience which disqualifies murder from inheriting the property of the person murdered . Therefore, the word and phrases used in S. 25 will have to be construed in the light of these principles viz. The principles of equity, justice and good conscience. This is also the well established principle of public policy. 10. It is well settled that the word not defined in the Act but a word of every day use must be construed in popular sense as understood in common parlance . and not in a technical sense. In popular sense the word "murder " means unlawful homicide or unlawful killing of human being. In popular parlance the word "murder" is not used or understood in the technical sense as defined in S. 300 of the I.P.C. Will result in defeating the very object of the legislation. It will also run counter to the well established principles of equity, justice and good conscience, or the paramount principle of public policy enshrined in S. 25 of Hindu https://hcservices.ecourts.gov.in/hcservices/ succession Act. I am fortified in this view by the decision of the Madras High Court in Sarvanabhava v. Sallemmal : (1972)2MLJ49 wherein the Madras High court has observed as under : " Almost all systems of law have recognised that a person guilty of homicide cannot succeed to the property of his victim. Section 25 of the Hindu succession Act gives statutory recognition to the above proposition." 12. In my opinion this is the correct approach for interpreting the provisions of section 25 of the Act, which incorporates a paramount principle of public policy based on principle of public policy based on principles of justice, equity and good conscience, so that the person will not be able to take the advantage of his own crime. In this context it is pertinent to note that the words used are "commits murder or abets commission of murder" and not "is convicted of an offence of murder and not "is convicted of an offence of murder or abetment of offence of murder." Therefore, it is clear that the legislature has used the term "murder" in S. 25 of the Hindu Succession Act not in a technical sense as defined in S. 300 of the I.P.C. ., but in a wider and popular sense, which must include in its import even culpable homicide or unlawful manslaughter. It is neither possible not desirable to lay down general rule in this behalf, because to some extent it must depend on the facts and circumstances of each case. 18. As per Section 25 of the Hindu Succession Act, 1956, 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 murder. Needless to say that the sound principles of justice, equity and good conscience were applied by the Privy Council in Kenchava Kom Sanyellappa Hosmani and another Vs. Girimallappa Channappa Somasagar, reported in AIR 1924 P.C. 209, wherein, one Chanbasava, a Hindu widow, was in possession of the property of her deceased son. She was murdered by her nephew, Hanmappa, who would have got the estate of the last male owner (Parappa), but for the murder committed by him, Kenchava and Gangava, sisters of the murderer, obtained possession of the property. The plaintiff in that case was the son of Parappa’s aunt and he claimed that he had a better title than the two sisters of the murderer. The two sisters claimed preference over the plaintiff, on the ground that they derived their right to succeed through the murderer. This part of the claim of the sisters was rejected and while doing so, Their Lordships held thus: “The murderer should be treated as non-existent and not https://hcservices.ecourts.gov.in/hcservices/ as one who forms the stock for a fresh line of descent.” As the sisters were claiming the property through the murderer, their Lordships rejected their claim on the ground that no title could be derived from the murderer who should be treated as non-existent. The Privy Council has laid down the principle that the principles of justice, equity and good conscience require that a murderer be disqualified from inheriting the estate of his victim. The principles deducible from the Privy Council case cited above are: 1. A murderer is disqualified from succeeding to the estate of his victim upon the principles of justice, equity and good conscience. 2. A murderer should be treated as non-existent qua the estate of the murdered person, that is to say no title to the estate of the murdered person can be claimed through the murderer. 19. It is trite law that a murderer is not entitled to inherit the property of the person murdered. The following judgments reiterate the incorporation of the principles of justice, equity and good conscience in Section 25 of the Act. (a) In Mata Badal Singh and Ors. v. Bijay Bahadur Singh and Ors. reported in 1956 Allahabad 707, a Division Bench of the Allahabad High Court held as follows:- “A murderer is disqualified from succeeding to the estate of his victim upon