30th April, 1981.

Petitioner Counsel: M.D. Pathak,
Respondent Counsel: M.P. Patel, .

Cases Cited:
AIR 1979 SC 289 [Para 8]
(1972) 2 Mad LJ 49 [Para 4]
AIR 1970 Andh Pra 407 [Para 10]
AIR 1929 PC 181 [Para 4]
AIR 1924 PC 209,1924 (22) All LJ 962 [Para 11]
AIR 1921 Bom 270,ILR (1921) 45 Bom 768 [Para 8]

JUDGMENT

JUDGEMENT :-The plaintiff who is a minor filed the suit through her next friend, maternal grand-mother 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 a her self-acquired and self-earned separate property and in view of the provisions of S.25 of the Hindu Succession Act, 1956 daughter alone is entitled to get the said amount.

2. It appears to be an admitted position that defendant No.1 Sushilkumar was prosecuted for an offence punishable under Section 302 of the Penal Code in Sessions Case No.196 of 1980 decided on 29th of Oct., 1980. After appreciating all the evidence on record the Sessions Court came to the conclusion that accused Sushilkumar used a sharp-edged weapon for inflicting various injuries on deceased Revati. While inflicting the injuries he chose vital part of the body and used considerable force. The Sessions Court further found that in view of the number of injuries and their location considered together with other factors clearly indicate that accused Sushilkumar did the act with intention of causing the death of Revati. After recording this finding the learned Judge ultimately came to the conclusion that he committed the said act of assault while be was deprived of the power of self-control by grave and sudden provocation given to him by deceased Revati. As a result of this finding he was convicted of the offence punishable under S.304 Part I of the I.P.C. and was sentenced to suffer rigorous imprisonment for seven years and to pay a fine of

Rs. 1000/- or in default to suffer further rigorous imprisonment for six months. In the suit filed on behalf of the minor it was contended that as the defendant No.1 was responsible for committing murder of deceased Revati, he is not entitled to succeed to the property of deceased in view of the provisions of S.25 of the Hindu Succession Act. In this suit an injunction was also sought against defendant No.1 restraining him from withdrawing the amount from the Bank. The trial Court framed necessary issues and ultimately came to the conclusion on the strength of the affidavit filed by the guardian and next friend of the plaintiff that money lying in the special saving bank account exclusively belonged to the deceased mother of the plaintiff. He also came to the conclusion that in view of the conviction of defendant No.1 under S.304, Part I of the I.P.C. he is not disqualified under S.25 of the Hindu Succession Act. So far as the amount of Rs. 6,800/- is concerned, which according to the plaintiff belonged to her being proceeds of the lottery prizes earned in he lottery tickets purchased in her name and credited in the account in the Bank, the learned Judge held that for that purpose the plaintiff will have to pursue a separate remedy as such a declaration cannot be granted in the present suit as framed. In view of these findings the learned Judge decreed the claim of the plaintiff to the extent of Rs. 5831-31 p. only and also granted leave to the plaintiff to file a fresh suit in respect of the amount of Rs. 6800/-. He also granted necessary reliefs including that of permanent injunction to the extent of Rs. 5831-31 p.

3. Being aggrieved by this judgment and decree the plaintiff has filed the present appeal. Defendant No.1 has also filed a cross-objection challenging the finding recorded against him and has also explained the circumstances under which he remained absent in the trial Court and has prayed that the ex parte decree should be set aside and he mould be given an opportunity to defend the suit on merits. According to him he could not remain present in Court because he was detained in jail and the Counsel appearing for him remained absent on the date of hearing.

4. Shri Pathak, learned Counsel appearing for the appellant contended before me that the interpretation put forward by the learned Judge upon the provisions of S. 25 of the Hindu Succession Act is wholly illegal. According to Sri Pathak the phraseology used in S.25 of the Hindu Succession Act is "a person who commits murder or abets commission of murder". The section does not contemplate that the person should be convicted or sentenced for the offence of murder. Shri Pathak has also contended that the word "murder" is not defined in the Hindu Succession Act. Therefore, the meaning assigned to the said word in the I.P.C. cannot be incorporated in S.25 while construing the said provision. In the absence of the definition of the term "murder" it will have to be given the meaning as understood in common parlance; and if so understood it will include all sorts of culpable homicides. In support of his contention Shri Pathak has relied upon the decision of the Andhra Pradesh High' Court in Nannepuneni Seetharamaiah v. Nannepuneni Ramakrishnaiah, AIR 1970 Andh Pra 407. A decision of this Court in Girimallappa Channappa v. Kanchava, ILR (1921) 45 Bom 768 : (AIR 1921 Bom 270), which is confirmed by the Privy Council in Kanchawa Sonyellappa v. Girimallappa Channappa, AIR 1924 PC 209. He is also relying upon the decision of the Madras High Court in Sarvanabhava v. Sallemmal, (1972) 2 Mad LJ 49.

5. On the other hand it is contended by Shri Patel, learned Counsel appearing for respondent No.1 that as the word "murder" is not defined in the Hindu Succession Act and is only defined in the I.P.C., the said term will have to be given the meaning as assigned to it in the I.P.C. Therefore, unless a person is convicted of the offence of murder, under S.302 of I.P.C., he is not disqualified under S.25 of the Hindu Succession Act. According to Shri Patel, as in the present case respondent No.1 is convicted for an offence punishable under S.304, Part I of the I.P.C. viz. culpable homicide not amounting to murder, the learned Judge of the trial Court was right in coming to the conclusion that defendant No.1 was not disqualified to succeed to the property of the deceased Revati under S.25 of the Hindu Succession Act.

6. For properly appreciating the controversy raised before me, it is necessary to make a detailed reference to the provisions of Ss. 25 and 27 of the Hindu Succession Act, which read as under:-

"25. 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.

27. If any person is disqualified from inheriting any property under this act , it shall

devolve as if such person had died before the intestate."

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 an 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 Ss.25 and 27 were enacted by the legislature to give statutory approval to the principles of equity, justice and good conscience which disqualifies murderer or a person who abets commission of murder from inheriting the property of the person murdered. Therefore, the words 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.

8. As observed by the Privy Council in Lawrence Arthus Adamson v. Melbourne and Metropolitan Board of Works, AIR 1929 PC 181 :

"It is always unsatisfactory and generally unsafe to seek the meaning of words used in an Act in the definition clauses of another statute dealing with matters more or less cognate even when enacted by the same legislature."

The Supreme Court has also expressed the similar view in the Board of Muslim Wakfs, Rajasthan v. Radha Kishan, AIR 1979 SC 289 and has observed that (at p. 295):

"It is not a sound principle of construction to interpret expressions used in one Act with reference to their use in another Act and decisions rendered with reference to construction of one Act cannot apply with reference to the provisions of another Act, unless the two Acts are in pari materia."

It is an admitted position that two enactment are neither cognate nor pari materia and cover different fields. Therefore, in my opinion words and phrases used in S.25 of the Hindu Succession Act will have to be construed and interpreted harmoniously keeping in view the object of the legislation, and not in technical sense as defined in I.P.C.

9. In this context a reference could also be made to the following observation in Halsbury's Law of England, Third Edition, Vol.39, para. 1315, p. 869:-

"Murder or manslaughter. It is contrary to public policy that a man should be allowed

to claim a benefit resulting from his own crime. Accordingly a donee who is proved to be guilty of the murder or manslaughter of the testator cannot take any benefit under his will."

It is this principle of public policy that a person cannot be allowed to claim benefit resulting from his own crime which is approved by the Privy Council in Kanchava's case (AIR 1924 PC 209). When the Hindu Succession Act, 1956 was enacted, the legislature had before it the decision of the Privy Council in Kanchawa's case and it appears that it is this well established principle of public policy which legislature thought fit to incorporate in S.25 of the Act, so that the person will not be tempted to commit murder to inherit the property of the person murdered.

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. Therefore, to construe the said word in a technical sense as defined in S.300 of the I.P.C. will result in defeating the very object of the legislation. It is 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 Succession Act. I am fortified in this view by the decision of the Madras High Court in Sarvanabhava v. Sallemmal, (1972) 2 Mad LJ 49 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."

11. In the present case defendant No.1 is convicted of the offence punishable under

S.304, Part I of I.P.C. viz. for the offence of culpable homicide. From the findings recorded by the learned Sessions Judge it is clear that as many as eleven incised injuries were inflicted by defendant No.1 with a sharp edged knife on the person of deceased Revati. He chose vital part of the body for inflicting these injuries and had used considerable force. He assaulted Revati with the intention of causing her death. Therefore it can safely be held that he has committed murder of Revati within the meaning of the laid expression as used in S.25 of the Hindu Succession Act, 1956 and therefore is disqualified from inheriting the property of deceased Revati, the person murdered. Similar view is taken by Andhra Pradesh High Court in Nannepuneni Seetaramaiah v. Nannepuneni Ramakrishnaiah, AIR 1970 Andh Pra 407, wherein it is observed by the Andhra Pradesh High Court that to apply the disqualification under S.25 of Hindu Succession Act it is not necessary that the person who committed murder or abetted commission of murder must also have been convicted of the offence of murder or of abatment of murder under S.302 of the I.P.C. The said section does not contemplate punishment for murder to disqualify the murderer from inheriting the property of the murdered. The application of the section should not be approached from the point of view of punishment for murder.

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 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 or abetment of offence of murder." Therefore, it is clear that the legislature has used the term "murderer" 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 nor desirable to lay down general rule in this behalf, because to some extent it must depend on the facts and circumstances of each case.

13. However, at this stage I am informed by Shri Pathak, learned counsel for the plaintiff that an appeal is filed against the laid order of conviction by the defendant No.1 and the same is pending. He has further stated that the complainant has also filed a revision petition against the order of acquittal passed by the learned Session Judge acquitting him of the offence under Section 302 of the I.P.C. and the said revision petition is also pending. Therefore, I am not called upon at this stage to decide the question as to what will be the scope of inquiry before the Civil Court in case of acquittal. I have decided the question of disqualification under S.25 of the Hindu Succession Act on the basis of the position as it stands today. Parties are at liberty to raise all permissible contentions in case of subsequent development or change in circumstances.

14. So far as the merits of the controversy are concerned, it does appear that because of the pendency of the sessions case and subsequent conviction, defendant No.1 remained absent in the trial Court. It is no doubt true that he had engaged a counsel at the initial stage but subsequently the counsel also remained absent and the matter proceeded ex parte against him. Shri Patel, learned counsel appearing for defendant No.1 has contended that money lying in deposit in Bank belonged to defendant No.1 alone and not to deceased Revati. He further contended that to prove this fact defendant No.1 should be given an opportunity to file a written statement and lead evidence in support of his case. In all fairness Shri Pathak has conceded before me that in view of the peculiar facts and circumstances of the case he has no objection if defendant No.1 is given an opportunity to contest the claim of the plaintiff on merits. However, he has further submitted that in that case the plaintiff should also be given an opportunity to amend the plaint and claim a relief of declaration even qua the amount of Rs. 6,800/- which according to the plaintiff exclusively belongs to her as it represents the proceeds of lottery prize earned by the plaintiff herself on the tickets purchased in her name though said amount was credited in the joint account of Revati and defendant No.1. Shri Patel, learned counsel appearing for respondent No.1 has no objection for giving such an opportunity to the plaintiff. In this view of the matter by consent of the parties the judgment and decree passed by the learned Judge of the City Civil Court, Bombay da1ed 23-11-1980 is set aside and the matter is remitted back to the City Civil Court for deciding it on merits in accordance with law after giving a reasonable opportunity to both parties to put forward their respective cases. It is needless to say that after remand the plaintiff

will be entitled to amend her plaint and claim a relief of declaration qua Rs. 6,800/- and also carryon other consequential amendments, if necessary. The defendant will also be at liberty to file his written statement and thereafter the trial Court will decide the suit on merits in accordance with law. Since the plaintiff is a minor and her mother is dead and the father is also in jail, this is a fit case which requires priority and, therefore, the trial Court is directed to hear and decide the suit as expeditiously as possible preferably before the 31st of Dec., 1981.

15. During the pendency of the suit the ad interim injunction granted by the trial Court restraining the defendant No.1 from withdrawing the amount from the Bank shall continue. The parties are directed to appear before the trial Court on 29th of June, 1981. Thus the appeal is partly allowed. Since by consent of the parties the matter is being remitted back, no orders on cross-objection are necessary. In the circumstances of the case there will be no order as to costs in this appeal as well as in cross-objection.

Order Accordingly