Karnataka High Court
Swami Shradanand vs Mrs Gauhar Taj Namazie on 17 March, 2017
Equivalent citations: 2017 (3) AKR 676
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF MARCH, 2017
BEFORE
THE HON'BLE MRS JUSTICE K.S.MUDAGAL
REGULAR FIRST APPEAL NO.1487/2003 (DEC)
BETWEEN:
SWAMI SHRADANAND
JUDICIAL CUSTODY
PRISONER, C/O SUPERINTENDENT
OF POLICE,CENTRAL JAIL
BANGALORE ....APPELLANT
(BY SRI. VIJAYAKRISHNA BHAT Adv.,)
AND:
1. MRS. GAUHAR TAJ NAMAZIE
W/O MR. G.H. NAMAZIE
AGED ABOUT 75 YEARS
PRESENTLY R/AT NO.15/1
ALI ASKER ROAD, BANGALORE 560 001
2. MRS. SHAKERH SHRADANAND
(NEE) BEGUM SHAKEREH KHALEELI
AGED ABOUT 43 YEARS
D/O G.H. NAMAZI,SINCE DEAD BY HER LRs
(a) MS.ZEEBENDEH KHALEELI
15/1, ALI ASKER ROAD
BANGALORE 52
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(b) MS. SABAH KHALEELI
II FLOOR, FLAT 23
SONARIKA BUILDING
PEDDAR ROAD,BOMBAY-400 026
(c) MS.REEIHANEH DHALLA
138, NUNGAMBAKKAN HIGH ROAD
MADRAS-600 034
(d) MS.ESMATH KHALEELI
C/O RESIDENCE OF INDIA
HIGH COMMISSIONER'S OFFICE
AT CANBERRA, AUSTRALIA
(e) G.H. NAMAZIE
15/1, ALI ASKER ROAD
BANGALORE -52. RESPONDENTS
(BY SRI. S.V. GANESH ADV FOR R1,
R2(E) served & unrepresented,
R2(A to D) notice d/w vide C.O.dtd.25.6.2014)
THIS RFA IS FILED UNDER SECTION 96 OF CODE OF
CIVIL PROCEDURE, AGAINST THE JUDGMENT AND
DECREE DT:16.09.2003 PASSED IN O.S.NO.10418/1987
ON THE FILE OF THE XXVIII ADDL. CITY CIVIL JUDGE,
MAYO HALL UNIT, BANGALORE, (CCH.NO.29), DECREEING
THE SUIT FOR DECLARATION AND POSSESSION.
I.A.NO.1/2012 IS FILED UNDER ORDER VII RULE 11
READ WITH SECTION 151 CODE OF CIVIL PROCEDURE
FOR REJECTION OF THE APPEAL MEMO AS BEING
BARRED BY LAW.
THIS I.A.1/2012 HAVING BEEN HEARD AND
RESERVED, COMING ON FOR PRONOUNCEMENT THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
Respondent no.1 has filed this application under Order VII Rule 11 read with Section 151 Code of Civil Procedure for rejection of the appeal memo. Appellant filed objections and opposes the application.
2. This appeal arises out of the judgment and decree dated 16.09.2003 in O.S.No.10418/1987. Respondent no.1 is the plaintiff and her daughter Shakereh Khaleeli was the defendant in that case. The plaintiff is the grand daughter of the Sir.Mirza Ismail, the former Diwan of the Princely State of Mysore. Plaintiff and Shakereh Khaleeli inherited huge estate since they hail from an affluent family. Akbar Khaleeli - the husband of Shakereh Khaleeli was in Indian Foreign Service and couple had 4 daughters. Very 4 unfortunately, in 1983 Shakereh Khaleeli was attracted towards the appellant. She divorced Akbar Khaleeli in 1985. Then Shakereh Khaleeli and appellant married under the Special Marriage Act on 17.04.1986. The suit property is highly valuable property situated in the heart of Bangalore City.
3. Plaintiff filed O.S.No.10419/1987 alleging that Shakereh Khaleeli representing to her that she would help in the management of the property, got a lease deed executed in her favour on 19.04.1984. Plaintiff further contended that since she is an aged Pardanishin lady, trusting her daughter Shakeera she signed the document and later it was discovered that the term of the agreement in the lease deed is mentioned as 99 years.
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4. Therefore, she sought declaration that the lease deed is the outcome of fraud, therefore null and void and sought possession of the property. During the pendency of the suit, in 1991 Shakereh Khaleeli went missing. At that time, she was living with her second husband Shradananda/appellant.
5. Ultimately, on the complaint of her daughter Sabah Khaleeli, a criminal case was registered and appellant was charge sheeted for the murder of Shakereh Khaleeli. After the death of Shakeera was confirmed the plaintiff impleaded defendants 1 to 6 as the legal representatives of Shakereh Khaleeli.
6. Appellant though was facing trial on the charge of murder of Shakereh, filed an application to implead him as the legal representative of deceased Shakereh Khaleeli on the ground that he 6 is the husband and a legatee under her alleged will in his favour. The trial Court vide order dated 25.11.2000 allowed that application. The suit came to be decreed by the impugned judgment on 16.09.2003. Only Shradananda/appellant filed the appeal against the said judgment and decree.
7. Pending this appeal, the XXV Addl. City Civil and Sessions Judge, Bangalore in S.C.No.212/1994 by Judgment dated 20.05.2000 convicted the appellant for the charges of murder of Shakereh Khaleeli and sentenced him to death penalty. This Court in Crl.Appeal No.1086/2005 (appellant's appeal) c/w Cr.C.6/2005 confirmed his death sentence and dismissed the appeal. Shradananda/appellant took up the matter before the Supreme Court. Supreme Court vide judgment dated 18/05/2007 reported in AIR 2007 SC 2531 7 upheld the conviction. The Bench differed on the question of sentence. Therefore, the matter was referred to the larger Bench. The Larger Bench by the Judgment dated 22.07.2008 reported in (2008) 13 SCC 767 modified the sentence from death penalty to imprisonment for his whole lifetime without any remission.
8. Respondent no.1 in the above application seeks to reject the appeal memo on the ground that, the appellant being the murderer of the defendant - Shakereh Khaleeli(his wife) is disentitled to represent her estate. She contends that due to such disqualification to be the legal representative, he loses locus standi to prosecute the appeal, therefore, the appeal memo is liable to be rejected.
9. The appellant opposes the application on the following grounds:
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(i) Order VII Rule 11 Code of Civil Procedure is applicable only to the plaint and not to the appeal.
(ii) The trial Court has allowed his application to implead unconditionally which order has gone unchallenged. Therefore, 1st respondent cannot reagitate that matter.
(iii) Since the marriage of the appellant with Shakereh Khaleeli is under the provisions of the Special Marriage Act, 1955, Section 25 of the Hindu Succession Act is not applicable. Therefore, the said disqualification clause cannot be invoked.
10. Having regard to the aforesaid rival contentions, the prime question for consideration in the application is, "Whether the appellant has incurred disqualification to represent the estate of deceased Shakereh Khaleeli on account of he 9 murdering her and thereby disentitled to prosecute the appeal?"
11. The other contentions regarding the non- application of Order VII Rule 11 Code of Civil Procedure and the effect of the trial Court permitting the appellant to come on record and the 1st respondent not challenging that order are only incidental to the main question. Therefore, first this Court has to address the question, 'Whether the appellant incurred disqualified to represent the estate of Shakereh Khaleeli?".
12. Reg. Disqualification to represent the estate:
There is no dispute that the appellant claimed right to contest the suit, as well as claims right to prosecute this appeal by virtue of Order 22 Rule 4 C.P.C. as the legal representative of deceased 10 Shakereh Khaleeli. The term 'Legal representative' is defined in Section 2 (11) of Code of Civil Procedure as person who in law represents the estate of the deceased and includes any person who intermeddles with the estate of the deceased.
13. There is no dispute that, from the Session's Court till the Supreme Court, all the Courts have held that the appellant, in a calculated manner got access to Shakereh Khaleeli to grab her properties, gained her trust and married her. The Courts further held that to enjoy her properties without any obstruction, he planned to eliminate her. The Courts further held that to execute his plan of murder, he got prepared a special wooden box and kept that in the out house and got dug a pit in the courtyard of the house adjacent to the wall of their bedroom. The Court's further held that 11 on 28.05.1991 in the forenoon the appellant administered Shakereh Khaleeli the high doze sedatives laced tea, when she fell fast asleep, stuffed her into that wooden box and buried that box in the pit got dug by him and leveled the land, thus killed her when she was just forty. The Supreme Court at paragraph 95 of the said Judgment (AIR 2007 SC 2531) held as follows:
"95.Second point relates to planning which went into committing the murder. It is agreed that accused deliberately came close to the beautiful and wealthy lady. He must have had his intentions and calculations in that regard. To that extent, intention behind the marriage can be imputed."
14. Courts all along held that the murder was a gruesome and cold blooded murder for gain. In Paragraph 129A and 130 of the judgment, the Hon'ble Supreme Court held as follows:
"129A. In my opinion, this is case of cold blooded, calculated, diabolical 12 murder by the accused of an innocent lady who came from a good family, but unfortunately due to her infatuation fell into his clutches.
130. Learned counsel for the appellant submitted that there was no reason for the appellant to murder the deceased since the deceased had executed a Will in his favour. In my opinion, this argument is not tenable because it is well settled that a Will comes into operation only on the death of the testator. The deceased was only in her forties, and her natural death may have occurred several decades later. The appellant was obviously not willing to wait for so long before he could grab her property and hence he decided to murder her. No doubt no poisonous substance was detected in the skeleton of the deceased and hence the prosecution case that the accused mixed poison in her tea could not be firmly established. However, even if the exact method of murder has not been established by the prosecution, I have no manner of doubt that it was the appellant who murdered the deceased."
15. The Larger Bench of the Supreme Court vide judgment dated 22/07/2008 (2008 (13) SCC 13
767) sentenced the appellant to imprisonment up to his natural life without any remission. Regarding the gravity of the offence in paragraph 7 and 54 of the Judgment, the Supreme Court held as follows:
"7. This takes us to the facts of the case that has all elements of high drama. It has a man's vile greed coupled with devil's cunning; A woman's craving for a son, coupled with extreme credulity and gullibility and a daughter's deep and abiding love for her mother coupled with remarkable perseverance to see through the lies behind her mother's mysterious disappearance. But a man's life cannot be decided in three sentences and we must see the prosecution case, as established up to this Court in greater detail."
"54. Coming now to the facts of the case it is undeniable that appellant killed Shakereh in a planned and cold blooded manner but atleast this much can be said in his favour that he devised the plan so that the victim could not know till the end and even for a moment that she was betrayed by the one she trusted most......"14
16. Initially the learned counsel for the 1st respondent sought to rely on 25 and 27 of the Hindu Succession Act to contend that, the murderer is disqualified from inheriting the property of his own victim. The appellant and Shakereh Khaleeli married under the provisions of Special Marriage Act. Section 21 of the Special Marriage Act makes the Indian Succession Act applicable to the parties to the Special Marriage Act and their issues. Therefore, later he did not press the application of Sections 25 and 27 of the Hindu Succession Act.
17. Section 35 read with Section 33 of the Indian Succession Act enables the appellant to inherit 1/3 of the share of deceased Shakeereh. Sri.Vijaya Krishna Bhat, the learned counsel for the appellant vehemently argued that in the Indian Succession Act, there is no provision parameteria 15 to Section 25 and 27 of the Hindu Succession Act, therefore in the absence of any law disabling him to succession, the appellant cannot be disentitled or disqualified from representing the estate of the deceased.
18. Per contra Sri Ganesh, the learned counsel for the 1st respondent argued that, merely because there is no provision in particular Act for disqualification of a murderer, he cannot be permitted to enjoy the fruits of his own crime, that too even after the Supreme Court convicting him for commission of diabolical, gruesome and well planned murder for gain in utter breach of trust to the victim. He contends that allowing the murderer to succeed to the property of his own victim, is opposed to the public policy and wherever law is not provided for that, Courts can rely upon 16 the principles of justice, equity, good conscience and public policy.
19. In support of his contention the counsel for Respondent No.1 relied upon the judgment of Bombay High Court in GIRIMALLAPPA CHANNAPPA SOMSAGAR vs KENCHAVA SAN- YELLAPPA HOSMANI (1921 Indian Cases Vol.LXIL,
294). In that case, One Hanumappa murdered his paternal aunt Chanabasava. In a suit for possession of the estate of deceased Chanabasava, the question arose as to whether murderer Hanumappa is entitled to the estate of deceased Chanabasava as the preferential heir under the personal law. Then the Hindu Succession Act was not in force and there was no law governing the issue whether a murderer can succeed to the estate of his own 17 victim. In that context, the Bombay High Court held as follows:
"I first deal with the question whether Hanmappa is disqualified from inheritance by reason of his having murdered Chanbasava. In support of this view there is a ruling in Vedanayaga Mudaliar v. Vedammal (1) which has been followed by the learned Subordinate Judge. ....... The Madras decision already mentioned is, therefore, the only Indian authority which appears to be forthcoming. In that case the judgment of the Court states that the point under consideration is clearly one untouched by the Hindu Law, and the decision in favour of disqualification is based on the principle that no one shall be allowed to benefit by his own wrongful act. This principle is referred to as one almost of universal law, and reliance is placed for its application to a case like the present upon the decision of the Queen's Bench in Mutual Reserve Fund Life Association (11) where the Court refused to enforce a trust in favour of one who had brought about the conditions essential to its fulfillment by killing the person whose death made it operative. The Madras High Court held, however, that the proper way to give effect to the maxim in such cases was not to exclude the murderer from the inheritance so as to prevent the very vesting in him thereof, but that should merely disentitle him to any beneficial interest in inheritance.18
This is a subsidiary point which can be more conveniently dealt with later. The main question is, whether the rule of public policy relied upon is one that can properly be incorporated in Hindu Law as judicially administered by the Courts.
In Oleaver v. Mutual Reserve Fund Life Association (11) Fry, L.J.says: "It appears to me that no system of jurisprudence can with reason include amongst the rights which it enforces, rights directly resulting to the person asserting them from the crime of that person. If no action can arise from fraud, it seems impossible to suppose that it can arise from felony or misdemeanour." This view has been followed in later English decisions. Thus. In Crippen, In the goods of (3) the President in his judgment says: "It is clear that the Law is that no person can obtain, or enforce, any rights resulting to him from his own crime; neither can his representative claiming under him, obtain or enforce any such rights. The human mind revolts at the very idea that any other doctrine could be possible in our system of jurisprudence." Hall, In re, Hall v.Knight (2) followed Oleaver's case (11) and Lord Cozans Hardy, M.R., (at page 6) says: "I think it would be shocking if Jean Baxter, who was the cause of the death of this man and was convicted of felony in respect of that could come before the Court and claim an interest under any Will made in her favour by the testator." The other members of the Court agreed that it was against public policy that a 19 person committing a crime should not directly benefit under the Will of the deceased. These expressions of opinion certainly afford very high authority for the general application of the principle of public policy referred to."
20. This Judgment of the Bombay High Court was upheld by the Privy Council on appeal in KENCHAVVA KOM SANYELLAPPA HOSMANI AND ANOTHER vs GIRIMALLAPPA CHANNAPPA SOMSAGAR (AIR 1924 Privy Council, page 209). The Privy Council at page 210 extracted the arguments (which are quite similar to this case) as follows "Before this Court it has been contended that the matter is governed by Hindu Law and that Hindu Law makes no provision disqualifying the murderer from succeeding to the estate of his victim and therefore, it must be taken according to his Law he can succeed and he being alive, the plaintiff has no title."
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21. For such argument, the Privy Council at page 211 held as follows:
"That it is un-necessary so to decide because the alternative is between the Hindu Law being as above stated or being for this purpose non-existent, and in this latter case the High Court have rightly decided that the principles of equity, justice and good conscience exclude the murderer".
22. The High Court of Judicature at Madras dealt with the similar question in SAROJA CHANDRASEKAR vs THE UNION OF INDIA in Writ Petition Nos.19942 to 19944/2002 delivered on 15.07.2015. In that case the husband murders his wife first and after two days murders their daughter. Relying on Section 15(1)(d) of the Hindu Succession Act, the in-laws of the deceased daughter-in-law/grand parents of the deceased grand daughter claimed that they are the preferential heirs of the deceased. The relevant 21 discussion is at paragraph 27 of the said Judgment which reads as under:
"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.
(c) The submission of the learned senior counsel for the petitioners was that respondents 7 & 8 could not claim preference in estate under Section 15(1)(d) of the said Act, since the disqualification attached to Dr.Ramachandran would also attach to his heirs i.e., his parents being respondents 7&
8. As a result of the same, it was stated, that the petitioners being the maternal grand-
parents of the minor child would be the sole persons having the right of inheritance from the minor female child Baby Keerthana under Section 15(1)(e) of the said Act. Learned senior counsel claims this entitlement by relying on the judgment of the Supreme Court in Vellikannu vs. R.Singaperumal and another reported in 2005 (6) SCC 622, wherein it has been held that if a male survivor is disqualified to inherit the property of the person whom he murdered, then anyone who succeeds through the murderer cannot lay a claim in the property. The relevant paragraphs dealing with this controversy are as under:- 22
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 (ILR (1904) 27 Mad 591), 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, 23 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. "24
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.K.Stanumurthiayya & Ors. v. K.Ramappa & Ors., AIR (29), 1942 Madras 277 ii.Nakchhed Singh & Ors. vs. Bijai Bahadur Singh & Anr., AIR 1953 All. 759 iii.Mata Badal Singh & Ors. vs. Bijay Bahadur Singh & Ors., AIR 1956 All. 707 iv.Minoti vs. Sushil Mohansingh Malik & Anr., AIR 1982 Bom. 68
17. 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 25 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. 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."
18. 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 26 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. (paragraphs 16, 17 & 18 SCC pages 631-
633) The aforesaid view, in our view, makes this issue really res integra. The legal position is enunciated on the principle of justice, equity and good conscience and as a measure of public policy, and has its origination from the observations of the Privy Council as far back in the year 1924. The murderer, thus, has to be treated as non-existent and would not thus create a fresh line of descent. The murderer for the purpose of inheritance has to be treated as if, he was not there when the inheritance opened and not for the purposes of a fresh stock of descent. Thus, neither can he claim succession nor can the succession be claimed through him.....".
23. Ultimately, in that judgment, relying on the Judgment of the Privy Council referred to supra, it was held that murderer or his heirs are not entitled to succeed to the estate of his own victim. 27 The High Court of Judicature at Madras held that when the Privy Council decided the said case there was no law disqualifying the murderer to succeed to his own victim and still the Court relied upon the principle of justice, equity, good conscience and public policy. It was further held that the said Judgment made way for enacting Section 25 and 27 of the Hindu Succession Act.
24. In this case also, merely because there is no provision in the Indian Succession Act to disqualify the murderer to the estate of his own victim, it does not bar the Courts from disqualifying him from inheritance.
25. The learned counsel for the appellant relying on the Judgment of Allahabad High Court in JAMUNA DASS vs BOARD OF REVENUE (AIR 1973 Allahabad, 397) contends that the Courts 28 have to administer justice in accordance with law and in the absence of a statute, the Courts cannot invoke the principle of justice, equity, good conscience or public policy.
26. In that case One Jamuna, the son of murderer Nathu Ram claimed the estate of one Kamala. In that case his father Nathu Ram had murdered his brothers Tega Lal and Budha and sister Smt.Sita. The said Budha was a bachelor. On his death, the said estate devolved on his other heirs including his sister Kamala. Jamuna claimed the share of Kamala and not the victims of crime. Therefore, there the claim was not for the estate of the victim, but was for his another aunt kamala. Therefore, the said decision is not applicable to the facts of this case.
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27. Having regard to the aforesaid facts and circumstances and judgments, even in the absence of specific provision in Indian Succession Act, for disqualification of a murderer to succeed to the estate of his own victim, this Court draws authority from the Judgment of the Privy Council in KENCHAVVA KOM SANYELLAPPA HOSMANI AND ANOTHER vs GIRIMALLAPPA CHANNAPPA SOMSAGAR referred to supra and by virtue of Article 141 of Constitution (Law of Precedents) holds that the appellant is not entitled to succeed to the estate of Shakereh Khaleeli, whom he murdered.
28. Further the application is filed under Section 151 Code of Civil Procedure also. Section 151 Code of Civil Procedure states that nothing in the Civil Procedure Code shall be deemed to limit or 30 to otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.
29. In this case, the appellant has come on record invoking Order I Rule 10 Code of Civil Procedure, Order XXII Rule 4 Code of Civil Procedure and Section 2(11) Code of Civil Procedure. The said provisions cannot limit the powers of this Court to make an order which subserves the ends of justice. Ultimately, the Court has to render justice and law is only an instrument for that.
30. Court has the power to prevent the abuse of it's process. Only on the basis of Order XXII Rule 4 or Order I Rule 10 and Section 2(11) Code of Civil Procedure appellant cannot be permitted to abuse 31 the process of the Court and lay a claim to his victim's estate. Claiming such relief is blatantly unjust and shocks conscience of the society, let alone granting such relief. It is like rewarding his felony in abundance. The law is not static. The needs of the society from time to time lead to changes in the law or framing of new laws. Apparently, the purpose of law is to uphold justice.
31. At the cost of repetition, it is to be noted that when Bombay High Court rendered judgment in Girimallappa Channappa Somsagar's case referred to supra and Privy Council upheld that there was no law, much less the Hindu Succession Act disqualifying the murderer to succeed to his victim's estate. In Saroja Chandrasekar's case referred to supra, the Court beautifully narrated how the said two Judgments became instrumental 32 in amending the Hindu Succession Act to introduce Sections 25 and 27 of the Hindu Succession Act. The objects and reasons of the Amending Act also make a reference to the Privy Council Judgment.
32. The case on hand is probably the first in the legal history, where a person having an eye on the property of a wealthy woman gains access to her hatching the plan to grab her property and marries her under the Special Marriage Act and murders her in a very gruesome manner to grab her properties. Hopefully such cases may drive the concerned to amend the Indian Succession Act incorporating a Section pari metria to Sections 25 and 27 of the Hindu Succession Act. For the reasons stated above, application for rejection of the appeal memo cannot be dismissed for want of statutory provision 33 in Indian Succession Act to disqualify the appellant to represent estate of his victim.
33. Reg. Application of Order VII Rule 7 Code of Civil Procedure: Next question is, "Whether the application is liable to be rejected as the same is filed under Order VII Rule 11 Code of Civil Procedure?". It is, true that Order VII Rule 11 Code of Civil Procedure applies to the plaints. But, the application is not under Order VII Rule 11 Code of Civil Procedure alone. The application is under Section 151 Code of Civil Procedure also. Therefore, this Court can invoke Section 151 Code of Civil Procedure to exercise the inherent powers to render justice as discussed supra. Therefore, the said contention deserves no merit.
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34. Reg. Section 11 CODE OF CIVIL PROCEDURE and Order II Rule 2 CODE OF CIVIL PROCEDURE:
The other contention is that on his application the trial Court permitted the appellant to come on record, as the legal representative of deceased Shakereh but, since the 1st respondent did not challenge that order it attained finality therefore, the present application is hit by the principle of res judicata and Order II Rule 2 Code of Civil Procedure.
35. There is no dispute that the said order of impleading the appellant is passed on 23.11.2000. By that time, conviction of appellant for the murder of Shakereh Khaleeli had not reached finality. There is no dispute that though the complaint was filed, appellant had denied the charges against him 35 and had claimed the trial. Therefore, this ground of disqualification of appellant to succeed to the estate of the deceased was not available to the 1st respondent when that application was filed or order was passed.
36. The ground of disqualification accrued to the 1st respondent only when the criminal proceedings against the appellant attained finality by the judgment of the Supreme Court which came to be finally decided on 22.07.2008. Therefore, the contention that the present application is barred by Order II Rule 2 Code of Civil Procedure or Section 11 Code of Civil Procedure is totally misconceived.
37. For the aforesaid reasons, the appellant has incurred disqualification to represent the estate of deceased Shakereh Khaleeli, consequently to prosecute this appeal. Therefore, I.A.No.1/2012 36 filed by the 1st respondent for rejection of the appeal memo is allowed. The appeal is dismissed. The appellant shall bear the costs of the proceedings throughout.
Sd/-
JUDGE brn