Calcutta High Court
Ram Chatterjee And Anr. vs Smt. Tapati Mukherjee And Anr. on 6 February, 2002
Equivalent citations: (2002)3CALLT208(HC)
Author: P.K. Ray
Bench: Pratap Kumar Ray
JUDGMENT P.K. Ray, J.
1. This application under Section 115 of the Code of Civil Procedure has been filed by the defendant Nos. 1 and 2 of Title Suit No. 65 of 1990 challenging the order No. 19dated 17th June, 1991, passed by the learned Assistant District Judge, 7th Court at Alipore, District South 24-Parganas in the said Title Suit whereby prayer for rejection of the plaint under Order 7 Rule 11 of the Code of Civil Procedure filed by the defendant Nos. 1 and 2 was rejected. This revision application raised a very nice legal question about interpretation of the statutory provision as laid down under Section 25 of the Hindu Succession Act, 1956 hereinafter refer to as said Act. For effective adjudication of the matter and for appreciation of rival arguments, said Section 25 is quoted in extenso herein below:
"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."
2. The defendants of the Title Suit has assailed the impugned order only on the point that the suit was pre-matured since there was no adjudication as yet by a competent Criminal Court holding that the defendant husband committed murder to his wife or abetted such commission of murder. It is contended very strongly by the present revisionist that a criminal case is already pending before the competent Criminal Court on the basis of the complaint filed by the plaintiff of the present suit on the charge of committing murder to the daughter of the plaintiff and unless and until a finding and/or adjudication is made by the Criminal Court to that effect, against the defendant husband, holding guilty of the charges, there was no scope to file any civil suit praying declaration in terms of Section 25 of Hindu Succession Act, 1956, disqualifying husband to be a successor to the property left by the wife. It is contended by the petitioner that the word "Murder" has not been defined either in Hindu Succession Act or in the Civil Procedure Code, accordingly the definition of such word "Murder" to be looked into the penal statute namely Indian Penal Code for adjudication of the issue. It is submitted by the learned Advocate for the petitioner that the word 'convicted' to be added and/or read into the statute for the purpose of disqualifying a person to inherit the property in terms of the Section 25 of the Hindu Succession Act. It is further contended that Civil Court has no jurisdiction to decide a question whether a person is a murderer or not and such jurisdiction only vests to Criminal Court.
3. Mr. Roy Chowdhury, learned senior counsel further submits that since the definition of murder in the present statute that is Hindu Succession Act is not prescribed, the Civil Court will not be in a position to determine the Civil liability of disqualification on succession by holding the defendant husband as murderer or abator to the commission of offence murder. It is further contended that since there is no parameter to find a person as murderer in the said Act, the Civil Court will be in difficulty to adjudicate the matter even it is assumed that Civil Court has the jurisdiction to detennine the issue as to whether defendant husband is a murderer or not.
4. Learned senior advocate Mr. Roy Chowdhury specially emphasized in this context that the cause of action of filing a suit under this provision will start when there would be any adjudication by a competent Criminal Court holding the husband as murderer or abator of commission of offence of murder. Learned senior advocate further submits that in absence of the definition, the definition of word "Murder" as appearing in Indian Penal Code to be considered as a parameter and same to be determined only by the Criminal Court. On citing some cases namely the case Nannepuneni Seetharamaiah and Ors. v. Nannepuneni Ramakrishnaiah, , the case Chaman Lal v. Mohan Lall and Ors., , it is contended that in all those cases, the Civil Court exercised the jurisdiction after the matter was decided by a competent Criminal Court relating to the charge of murder and/or abatement of murder.
5. However, learned advocate for the opposite party submits that the power of the Civil Court is not ousted to adjudicate the issue as to whether the defendant husband was a murderer or not and thereby to disqualify him to inherit the property left by the wife who was murdered. It is contended that the adjudication and/or a decision of a Criminal Court is not binding to a Civil Court and Civil Court is free to adjudicate the matter in its own way by taking evidence. It is further contended that degree of evidentiary value in between the two Courts exercising jurisdiction of Civil Court and Criminal Court are different. The Criminal Court is concerned with the strict proof of offence and there is a scope of getting benefit of doubt while adjudicating the said charges. On the other hand, the proof in the Civil Court is on different angle. Learned Advocate relied upon a judgment of Court of Appeal of State of California, Fourth Appellate District, Division Three, passed in the case Orenthal J. Simpson v. Louis Brown et al, being an unreported judgment to submit that the degree of adjudication by a Criminal Court qua a Civil Court would vary in its entirety. It is contended further that in the instant case the plaint, disclosed the cause of action. Learned advocate specifically referred paragraphs 12, 13, 14, 15 and 16 of the plaint to submit that the cause of action was made for relief under law of torts for damage as well as other relevant and consequential relief praying declaration that the husband was disqualified to inherit the property of deceased wife. It is contended by the learned advocate of the Opposite Party that in adjudicating the application under Order 7 Rule 11 of the Code of Civil Procedure, the averments in the plaint must be considered in its face value and when the plaint prima facie satisfies the test of cause of action, the plaint will not be rejected. Reliance is placed to the judgments passed in the case British Airways v. Art Works Export Ltd. and Anr., , in the case Shankarrao Balaji and Ors. v. Shambihari and Ors., reported in 1951 Nagpur 419. It is contended further that in the plaint there were two sets of reliefs as prayed for. One based on issue under Section 25 of the Hindu Succession Act relating to disqualification of the husband to inherit the property left by the wife and another on issue of damage based on Law of Torts. It is further contended that a plaint cannot be rejected even if one ground for the purpose of granting the relief under Section 25 of the Hindu Succession Act is considered as premature. Reference has been made to the judgments in the case Roop Lal Sathi v. Nachhattar Singh Gill reported in 1982(3) SCC 487 and in the case D. Ramachandran v. R.V. Janakiraman and Ors., .
6. Learned advocate of the Opposite Party further submits that there was no bar before the Civil Court to adjudicate the matter, as for example, it is argued that in the case of a dishonoured cheque under different statute, there is a criminal liability as well as civil liability. Civil liability relates to direction for payments of the money and criminal liability relates to penalty under the penal provision. Learned advocate for the Opposite Party relied upon the judgment passed in the case Minoti v. Sushio Mohansingh Malik and Anr., and more particularly the paragraph 13 of said judgment to submit that the adjudication by a Criminal Court prior to filing of a suit is not a condition precedent to pray relief in terms of Section 25 of the said Act.
7. In the impugned order, learned Court below considered the matter in depth. Learned Court below held:
"According to law of inheritance as laid down in Sub-section 2(a) of Section 15 of the Hindu Succession Act, 1956 the plaintiff has got right of inherited the entire Estate left by her issueless daughter and she is legally entitled to recover them from the defendants. Section 25 of the Hindu Succession Act, 1956 does not impose a pre-condition of conviction or adjudication in a criminal case. The prayer of murder as alleged in the plaint has got to be proved in this suit according to law. The fact of decree of the suit depends upon proving the fact in the suit by adducing evidence. The present suit has been filed for recovery of articles, ornaments etc. and for recovery of damages as a direct consequences of murder of Soma daughter of plff. In that case it cannot be said that the suit has been filed without any cause of action. In view of the circumstances, I do not find any cogent ground to allow the application of the defended under Order 7 Rule 11 of the CPC.".
8. Considering the rival contention of the parties, accordingly, only question is required to be decided in this revision application as to whether on the basis of the pleading made by the plaintiff, the plaint was required to be rejected at the threshold and further whether Civil Court has the jurisdiction to determine and/or adjudicate the husband's liability as murderer for passing a declaration in terms of Section 25 of Hindu Succession Act. Before considering the rival contention of the parties, the relevant statute to be looked into. Section 25 of the said Act provides a disqualification clause by the language "who commits murder or abates to murder". On a simple reading of the statute it is clear ex facie that before passing any declaration disqualifying a person to inherit a property in terms of Section 25 of the said Act, there must be an adjudication that the person committed murder and/or abated such commission of offence and such adjudication never has been said to be done by the Criminal Court as submitted by the learned advocate of the petitioner. Had it been the wisdom of the legislatures that after adjudication of the issue namely whether a person is a murderer or not or abetted the commission of such offence, by a Criminal Court, the relief in terms of Section 25 of the said Act would not be granted by a competent Civil Court, surely the word "who commits murder or abates murder" would not have been incorporated in the Section 25 of the said Act and in lieu thereof surely the legislatures would have used the word "a person who is convicted in charge of murder or convicted in charge of abatement of the murder" relating to the person concerned would be disqualified to inherit the property of the said person,
9. Hence, the contention of the learned advocate of the petitioner fails to this effect that there would be a prior conviction of the person concerned who would be disentitle to inherit the property in terms of Section 25 of the said Act. It is a settled law that the Court will not incorporate a word in the statute to give a different meaning of the statute under the basic principle of statutory interpretation. Court is only empowered to iron out the creases by Court surely would not step into the shoe of legislatures to add something, which would change the entire basic fibre of the statutory provision. In the instant case, it is the wisdom of the legislatures to use the word "who commits murder" or "who abates murder" for the purpose of disqualifying him from the law of succession and the law of inheritance to inherit the property of a person upon whom he inflicted such injury in that manner resulting death of that person. Hence, it is clear from the language of statute that the Civil Court is competent to adjudicate the matter. There is no necessity of prior conviction on the charge of murder and the abetment of murder. Even in the judgment as relied upon by the learned senior advocate Mr. Roy Chowdhury in the case Nannepuneni Seetharamaiah (supra), is against the petitioner's case. In that case there was no conviction on charge under Section 302 of the Indian Penal Code that is charge of murder but a conviction under Section 324 being a charge of grievous hurt. Despite, the Civil Court adjudicated the matter disqualifying the son to inherit the property of the father upon holding, inter alia, that in the Criminal Court, son was not convicted in the charge of commission of murder applying the test of benefit of doubt. The adjudication by a Civil Court to pass necessary declaration, disqualifying a person from succession line under special contingency as stipulated in Section 25 of said Act is passed on public policy, equity and justice.
10. Section 25 of the said Act was introduced in the Hindu Succession Act to give a statutory sanction to the judicial pronouncement as passed by the Privy Council in Kanchawa v. Girimallappa, reported in AIR 1924 Privy Council page 209. In the judgment, the Privy Council held that a man cannot take advantage of his own wrong. On observing that the same principle is the principle of equity, justice and good concepts whicli accordingly would disqualify and exclude the murderer from inheriting any interest in the property of a person murdered. Privy Council further held in the said judgment that the murderer in such type of cases should be treated as non-existent and not as one who forms the stocks for fresh line of descent. After the judgment pronounced by the Privy Council, Sections 25 and 27 were enacted by the legislatures in the said Act to give statutory approval to the principle of equity, justice and good consence. Hence, in interpreting the words as appearing in the Section 25 of the said Act, such Judgment to be taken note of and interpretation of statutory provision must be in the light of the said principles namely principle of equity, justice and good conscience. The submission of learned senior counsel Mr. Roy Chowdhury to this effect that the word "Murder" was not defined in the said Act and accordingly the meaning of the word "Murder" to be coined from Indian Penal Code, a penal statute, has no legal basis to stand. This point is not at all res intigra in view of several judgments of the Superior Courts that the word of a particular statute cannot be incorporated to mean the word of another statute unless the statutes are pari meteria. In the judgment passed by the Privy Council in Laurence Arthus Adamson and Ors. v. Melbourne and Metropolitan Board of Works, reported in AIR 1929 Privy Council 181, the following observation has been made :
"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 enacted by the same legislature."
11. Similar view also was expressed by the Apex Court in the case Board of Muslim Wakfs, Rajasthan v. Radha Kishan, reported in AIR 1979 SC 189 wherein at page 295 it has been observed as follows:
"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."
12. It is an admitted position that two enactments are neither cognate nor pari materia and cover different fields. Therefore, in any opinion, words and phrases used in section 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 IPC.
13. It is now well settled principle of taw that the word "not defined" in a particular Act but a word of everyday use must be construed in popular sense. In the popular sense, the word "Murder" means unlawful killing of human being. Hence, the technical meaning of the word "Murder" as appearing in Section 302 of Indian Penal Code, a penal statute, will have no applicability while defining the word "Murder" as appearing in Section 25 of said Act. Accordingly, single Judge of Bombay High Court, Justice Dharmadhikari in the case Minoti v. Sushil Mohansingh Malik and Anr., while dealing with the particular statutory provision namely Section 25 of the said Act decided the question against the defendant No. 1 therein who was convicted with offence punishable under Section 304 of Part-I of Indian Penal Code namely for the offence of culpable homicide. On analyzing the evidence on record, the Court held, that the injuries as were inflicted upon the vital part of the body would be considered as fatal injuries with intention of causing death within the parameters of the word "Murder" as stipulated in Section 25 of Hindu Succession Act, 1956, irrespective of acquittal in the charge of murder under Section 302 of Indian Penal Code by the Criminal Court. The learned Judge of Bombay High Court relied decision of Andhra Pradesh High Court passed in the case Nannepuneni Seetharamaiah and Ors. v. Nannepuneni Ramakrishnaiah, wherein the Andhra Pradesh High Court held that to apply the disqualification clause under Section 25 of the Hindu Succession Act it was not necessary that the person who committed murder or abated commission of murder must also had been convicted of the offence of murder or of abatement of murder under Section 302 of the Indian Penal Code.
14. Hence, the argument as advanced by learned senior advocate Mr. Roy Chowdhury to this extent that the meaning of the word "Murder" to be coined from the definition of the word "Murder" in the Indian Penal Code and the argument that without having any definition by setting up the parameters of defining the word "Murder", Civil Court would be in difficulty to adjudicate the issue, have no basis to stand, accordingly the point is answered against the present petitioner.
15. Furthermore, on another point as submitted by the learned senior advocate Mr. Roy Chowdhury that without having any conviction by the competent Criminal Court, the continuation of the proceeding before the Civil Court was prematures, also has no basis in view of the settled legal position. This point also is not at all res-integra namely the finding of a Criminal Court qua binding effect of it in adjudication of a matter before a Civil Court. Three Judges Bench of Apex Court in the case Anil Behari Ghosh v. Smt. Latika Bala Dassi and Ors., while considering the effect of judgment of the Criminal Court convicting son for murder of testator in subsequent proceeding for revocation of grant of probate qua Section 43 of the Evidence Aci held in paragraph 15 to this effect:
'The learned counsel for the contesting respondent suggested that it had not been found by the lower Appellate Court as a fact upon the evidence adduced in this case, that Girish was the nearest agnate of the testator or that Charu had murdered his adoptive father, though these matters had been assumed as facts. The Courts below have referred to good and reliable evidence in support of the finding that Girish was the nearest reversioner to the estate of the testator. If the will is a valid and genuine will, there is intestacy in respect of the interest created in favour of Charu, if he was the murderer of the testator. On this question the Courts below have assumed on the basis of the judgment of conviction and sentence passed by the High Court in the sessions trial that Charu was the murderer. Though that judgment is relevant only to show that there was such a trial resulting in the conviction and sentence of Charu to transportation for life, it is not evidence of the fact that Charu was the murderer. That question has to be decided on evidence."
16. In an identical fact situation when the point came up for adjudication before the single Bench of Punjab & Haryana High Court namely the point as to whether previous decision of the Criminal Court holding a person guilty under Section 304 of Indian Penal Code, single Bench of Punjab & Haryana High Court in the case Mst Biro and Anr. v. Banta Singh, , in paragraph 9 held to this effect:
"The remaining point involved in this appeal as noticed in the opening part of the judgment is covered by the decision of the Supreme Court in Anil Behari Ghosh v. Smt. Latika Bala Dassi, , according to which the judgment of the Criminal Court is only relevant to show that there was a trial resulting in the conviction and sentence of the adopted son to four years' rigorous imprisonment under Section 304, Indian Penal Code, but it is not evidence of the fact that the plaintiff-
respondent was the murderer. The judgment of the Criminal Court is also not binding on the Civil Court to find out on evidence whether the case will fall under Section 304 or will squarely fall within the definition of Sections 299 and 300, Indian Penal Code. Both the aforesaid points are to be determined by the Civil Court on evidence adduced before it. Keeping the law laid down by the Supreme Court in view, it has now to be examined whether the learned Additional District Judge was right in coming to the conclusion that the plaintiff-respondent was not guilty of murder and that since he was convicted by the Criminal Court under Section 304, IPC, he was guilty of culpable homicide not amounting to murder which did not create a bar to succession under Section 25 of the Hindu Succession Act."
17. The judgment of Punjab & Haryana High Court was passed relying upon the judgment of the Apex Court passed in Anil Behari Ghosh (supra). Hence, this point is not at all res-integra as urged by the learned senior advocate Mr. Roy Chowdhury in the present case. On simple analysis of the aforesaid judgment, the following points emerge:
(a) The judgment of a Criminal Court is not binding on a Civil Court in a subsequent proceeding for succession and more particularly in the matter of passing a declaration in terms of Section 25 of Hindu Succession Act, 1956.
(b) The Civil Court while dealing with the case to pass necessary declaration disqualifying a person from succession in terms of Section 25 of Hindu Succession Act, 1956, is required to take evidence separately for reaching to a decision that the person concerned is a murderer to disqualify him from the line of succession in respect of the property left by the person who was murdered.
18. Hence, considering the judgments as referred to and the points as emerged, it is now crystal clear that the Civil Court has the jurisdiction to decide the question whether a person is a murderer or not and/or whether he abeted the commission of offence murder, on taking into account of the facts as would be placed before him by way of evidence independently and without being influenced by any finding of the Criminal Court while adjudicating the charge of murder. Hence, the question as raised by learned senior advocate Mr. Roy Chowdhury that unless and until there is an adjudication by a competent Criminal Court holding the husband as murderer of wife, the suit was pre-matured, has no legal basis to stand and accordingly such contention is rejected. It is ex facie clear from the judgment as analysed before, that Civil Court is required to adjudicate the issue on evidence as to be adduced before him, even if there was a finding by a Criminal Court that a person is a murderer vide the Apex Court judgment in Anil Behari Ghosh (supra) wherein it is held that there was necessity of adjudicating the matter by the Civil Court upon taking the facts and evidence on records. Further it is clear from the judgments of Andhra Pradesh High Court and Bombay High Court as referred to above that irrespective of findings of the Criminal Court in a full-fledged criminal trial by acquitting the accused from the charge of murder in terms of Section 302 of Indian Penal Code, the Civil Court had the competency to adjudicate the matter against the said accused while dealing the question of murderer in terms of Section 25 of Hindu Succession Act, 1956. Hence, in a proceeding before Civil Court praying disqualification to inherit the property in terms of Section 25 of the said Act pre-trial and/or post trial of charge of murder by a competent Criminal Court regarding the issue in question is irrelevant and since under Section 43 of the Evidence Act, the judgment of the Criminal Court has no independent impact upon the Civil Court, has the jurisdiction to decide the matter independently. In that view of the matter, the argument of learned senior advocate Mr. Roy Chowdhury fails.
19. In the present case in hand, accordingly, the Civil Court has the power and jurisdiction to decide the question upon taking appropriate evidence as would be required for passing a declaration in terms of Section 25 of the Hindu Succession Act, 1956 to disqualify the husband defendant to inherit the property of the wife who was allegedly murdered by the husband. The judgment as relied upon by Mr. Roy Chowdhury, learned senior advocate in the case Chaman Lal v. Mohan Lall and Ors., wherein the single Judge of Delhi High Court held that after acquittal of a person in the charge of murder under Section 302 of Indian Penal Code, there was no scope to reopen the matter by a Civil Court in adjudicating the proceeding to disqualify such acquitted person to inherit the property in terms of Section 25 of Hindu Succession Act, 1956, is distinguishable on its special facts of that case. With due respect to the learned Judge, who decided the matter, it appears that in the said judgment there was no argument advanced regarding impact of Section 43 of the Evidence Act with reference to a judgment and/or decision of a Criminal Court qua its binding effect of it to a Civil Court and further the judgment of Apex Court passed in Anil Behari Ghosh (supra) also was not placed before the said Court for its decision. In that view of the matter the judgment passed in the case Chaman Lal (supra) with due respect to the judgment is attracted by doctrine of subsilcncio since the decision of the Apex Court passed in Anil Behari Ghosh (supra) was not at all placed and considered.
20. Besides, in the present case it appears that there was other cause of actions for initiation of the Civil Proceeding based on Law of Torts. On perusal of the plaint, in appears that not only the declaration disqualifying husband to inherit the property of the wife against whom there is a charge of commission of murder by the husband was prayed for, but also the damage and compensation based on tort also was prayed. Under Order 7 Rule 11 of Code of Civil Procedure, the Court enjoins the power to reject the plaint when it does not disclose any cause of action. In the instant case, it appears that there are different cause of actions to file the suit, on several prayers and with different facts. For rejection of a plaint under Order 7 Rule 11 of the Civil Procedure Code, the plaint prima facie to be considered for determining the point as to whether it discloses any cause of action. No argument has been advanced on this point by the petitioner save and except the point that there was no cause of action of the suit in terms of Section 25 of said Act and the suit was pre-matured. It appears, on bare reading of the plaint that the plaint discloses cause of actions for determining the point by full-fledged trial of the Civil Court. In that view of the matter, the revision application fails and it is rejected. But in the facts and circumstances of the case, there will be no order as to costs.
6.2.2002 Let urgent xerox certified copy of this order, if applied for, be given to the learned advocate for the parties expeditiously.