M.Nagarajan vs V.M.Nagammal ... ... on 23 December, 2011

[Cites 40, Cited by 3]

Madras High Court

M.Nagarajan vs V.M.Nagammal ... ... on 23 December, 2011

Bench: S.Manikumar

       

  

  

 
 
 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 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 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?

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 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:-

S.No Description of amount Amount Department 1 Family Benefit Fund Rs.10,000/-

Taluk Office Excise Section 2 Gratuity Rs. 3,000/-

-do-

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 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 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 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 Parappas 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 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 the principles of justice, equity and good conscience. Further, 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.

(b) In Saravanabhava Vs. Sellammal and others, reported in 1972 (2) MLJ, the plaintiff therein was the appellant. A suit was laid for a declaration of title and injunction, restraining the defendants therein, from interfering with the plaintiff's possession and enjoyment. The case of the plaintiff was that one Peramiah Gounder, father of the defendants 1 to 3, and the maternal grandfather of the 4th defendant, was the owner of the suit property and other property. He executed his last will on 19.09.1960 in respect of those properties. The plaintiff claimed that, under the will, he is entitled to the suit property and the defendants are entitled to the other property. The plaintiff therein was the grandson of the elder brother of Peramiah Gounder. The 4th defendant therein, was the plaintiff's wife and the 3rd defendant's daughter. Peramiah Gounder was murdered on 11th January 1964 and the plaintiff was implicated in the said murder. The 1st defendant filed a written statement inter alia contending that the will dated 19th September 1960, cannot be relied on, as the plaintiff had murdered Peramiah Gounder, and that therefore, he is not entitled to the suit property. Referring to the judgment in S.C.No.58 of 1964 on the file of the Sessions Judge, Coimbatore, dated 24th August 1964, wherein, the plaintiff therein was convicted and sentenced to death for committing the murder of Peramiah Gounder and that the same was also affirmed by the Supreme Court, but on a mercy petition presented by the plaintiff, the President of India had commuted the sentence of death into one of imprisonment for life, it was contended on behalf of the defendants that, in view of Sections 25 and 27 of the Hindu Succession Act, the plaintiff was disqualified from inheriting the property of Peramiah Gounder, as he had murdered Peramiah Gounder. On the other hand, the plaintiff contended that the aforesaid disqualification will apply only to inheritance and not to testamentary succession. Both the Courts upheld the contentions of the defendant and dismissed the suit. On appeal, testing the correctness of the judgments and decrees, a learned single Judge of this Court held that 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 a statutory recognition to the above proposition. This Court further held that there is no distinction between inheritance and succession to the property of the person murdered. The plaintiff has murdered Peramiah Gounder, the testator under the will, will not be entitled to the property bequeathed to him under the will. Ultimately, the second appeal was dismissed.

(c) In Mst.Biro and another Vs. Banta Singh, reported in AIR 1980 Punjab and Haryana 164, while considering a similar question as to whether a murderer is entitled to succeed to estate of the victim, the Punjab and Haryana High Court, after considering a decision in Seetharamaiah Vs. Ramakrishnaiah reported in AIR 1970, Andh Pra 407, at paragraph No.12 held as follows:-

12. Parliament had inserted Section 25 in the Hindu Succession Act as al matter of high public policy based on well-known principles of justice equity and good conscience so that a person may not be able to accelerate the succession by murdering the last owner of the property and it is done by the next heir he stands excluded from succession, meaning thereby that he would not be allowed to take benefit of succession by his own wrong by committing the murder of the previous owner. This view of mine finds support, not only from the bare reading of the section but by a similar provision under the Hindu Law and from a decision in Seetharamaiah v. Ramakrishnaiah, the relevant portion of which deserves to be reproduced:--

"This court has held that murder was dearly committed within the meaning of S. 300. I.P.C. The fact that he was given the benefit of doubt arising out of the conflicting versions of two witnesses and convicted under S. 324, I.P.C. does not in any way absolve him from the heinous crime to which he had made his own infamy contribution. S. 25 is introduced in the Hindu Succession Act as a matter of high public policy based on principles of justice, equity and good conscience to make it absolutely impossible for a murderer who deserves to be hanged or to be shut behind the prison bars for life, to derive advantage or beneficial interest from the very heinous ad committed.

(d) In G.S.Sadashiva Vs. M.C.Srinivasan and others, reported in AIR 2001 KARNATAKA 453, there was a dispute with regard to payment of LIC benefits of the wife, who had committed suicide. Husband was charge-sheeted under Sections 308 and 498-A of IPC and that he was honourably acquitted by the Sessions Court. On appeal preferred by the State, the High Court confirmed the order of acquittal. Two separate suits were filed by the husband and the father-in-law. While holding that the nominee is entitled to receive the benefits, the Karnataka High Court at paragraph No.10, held as follows:-

From reading of Section 25 of the Act, it is clear that the person who commits a murder or abets the commission of murder is disqualified from inheriting the property of the murdered. Therefore, what is required to be proved by the 1st defendant is that his daughter was murdered by the plaintiff or that the plaintiff had abetted commission of murder. Even if the plaintiff is acquitted by the Criminal Court, if the 1st defendant is able to satisfy that the plaintiff was acquitted either on any technical ground or by the benefit of doubt and can show that his daughter was actually murdered by the plaintiff or that the plaintiff was responsible for abetting the crime, in such circumstances, 1st defendant was right in canvassing that in view of Section 25 of the Act plaintiff is disqualified to inherit or succeed to the properties of his daughter. No doubt, while dealing with Section 25 of the Act, one has to be liberal in defining the word "Murder" and one should not be too technical. 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 Section 300 of the IPC. Therefore, to construe the said word in technical sense as defined in Section 300 of the IPC, will result in defeating the very object of the Legislature. It will also run counter to the well-established principles of equity, justice and good conscience.

(e) In Chinnappappal and others Vs. Rajammal, reported in (2002) 1 MLJ 66, there was a dispute arising out of partition of joint family property of one X, who got the property along with sons and daughters, jointly. One of the contentions raised by the appellants therein was that the sons of X, namely, Y and Z were convicted and sentenced to life in Session's Case, for murdering 'X' which was also lateron, confirmed by the High Court and hence, in view of Section 25 of the Hindu Succession Act, the sons of X are disqualified from inheriting the property of their father, on the ground that they are murderers. Accepting the contentions of the appellants, a learned single Judge of this Court, after taking note of the provisions under Section 25 of the Hindu Succession Act held as follows:-

In view of the above provision of law, as rightly pointed out by the learned counsel for the appellants the two sons of Pachiappa Nadar viz., Meyyappan and Kunjaram were disqualified from inheriting the property of their father.

(f) In Vellikannu Vs. R.Singaperumal and another, reported in (2005) 4 MLJ 63, a suit was filed by the appellant/plaintiff therein, contending inter alia, that the suit schedule properties were the self-acquired properties of late Ramasami Konar and that the 1st defendant was the only son of Ramasamy Konar. The plaintiff is the wife of the 1st defendant. She was already divorced and married with some other person and residing separately. It was alleged that the 1st defendant in the suit, married the plaintiff-appellant and both were living as husband and wife. On 10.10.1972, the 1st defendant murdered his father, Ramasami Konar. He was convicted under Section 302 IPC, for life imprisonment. The conviction of the 1st defendant was confirmed by the High Court, but the High Court recommended to the Government to reduce the sentence to the period already undergone. The 1st defendant was released in July 1975. Since the 1st defendant murdered his father, it was contended that he was not entitled to succeed to the estate of his deceased father and therefore, the 1st defendant must be deemed to have considered as predeceased, as provided under Section 25 read with Section 27 of the Hindu Succession Act. As the appellant/plaintiff was the widow of the 1st defendant, she claimed to be the owner of all the properties, left by Ramasami Konar, as Coparcener. After the release of the 1st defendant from the prison, the 1st defendant lived with the plaintiff for some time and thereafter, she was driven out of the house. The second defendant already impleaded in the suit therein was the tenant claiming under 1st defendant. In the abovesaid circumstances, the appellant/plaintiff prayed that she may be granted the relief of declaration, as she is entitled to inherit the entire estate of the deceased, Ramasami Konar. In response to the same, the 1st defendant opposed the maintainability of the suit, on the ground that the plaintiff is not the legal heir of late Ramasami Konar. He further submitted that all the properties acquired by Ramasami Konar were joint family properties and that the 1st defendant has acquired the same by survivorship.

The trial Court held that all the properties as joint family properties of the deceased Ramasami Konar and the 1st defendant. The 2nd defendant is a cultivating tenant. The trial Court further held that the 1st defendant having murdered his father is not entitled to claim any right under Section 6 read with Sections 25 and 27 of the Hindu Succession Act. However, the Court held that, as per proviso to Section 6 of the Hindu Succession Act, the plaintiff is entitled to decree for half share and accordingly, a decree was granted to the plaintiff. The matter was taken up by way of an appeal by the 1st defendant. The lower appellate Court also confirmed the finding, but modified the decree stating that it may be treated as a preliminary decree. The lower appellate Court also held that the defendant must be treated as non-existent and as the plaintiff became a Class I heir under Schedule 1 of the Hindu Succession Act, she was entitled to share in the property. Aggrieved by the judgment and decree, a second appeal was filed and this Court framed the following substantial questions of law:-

1) Whether Ex.A.2 judgment in the Criminal case is conclusive on the question of exclusion from inheritance in the present proceedings?

2) Whether the exclusion from inheritance would cover enlargement of interest by survivorship, in the light of Section 6 of Hindu Succession Act?

In so far as the question No.1 is concerned, the High Court held that the judgment of the Criminal Court can be taken into consideration. This Court came to the conclusion that the view taken by the Courts below cannot be sustained. It was further held that the plaintiff cannot claim as a widow of the son of late Ramasamy Konar. It was observed that she is entitled to half share, so long as the deceased-father and son had not partitioned the property. The 1st defendant/respondent No.1 cannot be said to have inherited any share from the victim (Ramasamy Konar) and that the plaintiff can claim as a widow, only, if there is a succession to the estate of the victim. If there is no succession, the deeming provision that the 1st defendant shall be deemed to have died before the victim (his father) also will not apply and that she cannot claim as a widow of predeceased son. This Court also held that Section 6 of the Hindu Succession Act will also not apply. The principle of justice, equity and public policy will apply and that the plaintiff cannot be treated as a fresh stock of descent and the defendant No.1 shall be treated as non-existent, as if he never existed. Therefore, the plaintiff also cannot claim as his widow. It was also held that since plaintiff claimed as a widow of the defendant No. 1 and since he is disqualified, same disqualification equally applies to her, for, she cannot claim through the murderer, her husband. On the abovesaid lines, this Court allowed the appeal filed by the defendant and the judgments and decrees of the Courts below were set aside. The suit filed by the plaintiff/wife was dismissed and as against the same, an appeal came to be filed before the Supreme Court. After considering the relevant provisions of Sections 6, 8, 25, 27 of the Hindu Succession Act and the decision of the Privy Council in 1924 PC 209, which was subsequently followed in Stanumurthiayya and Others Vs. K.Ramappa and Others, reported in AIR (29) 1942 Madras 277 (K.2005 S.C./163 VIII G-3, in Nakchhed Singh and Ors. v. Bijai Bahadur Singh and Another, reported in AIR 1953 All 759, Mata Badal Singh and Ors. v. Bijay Bahadur Singh and Ors., reported in AIR 1982 Bom 68, and Minoti v. Sushil Mohansingh Malik and Anr., the Supreme Court, at paragraph Nos.19 and 20 held as follows:-

17. Therefore, in view of various decisions of this Court it appears that Defendant No.1 and the plaintiff who was married to Defendant No.1 were members of joint Hindu family. If the defendant- appellant had not incurred the disqualification, then they would have inherited the property as per Mitakshara School of Hindu Law. But the question is that when the sole male survivor had incurred the disqualification can he still claim the property by virtue of Mitakshara School of Hindu Law? If he cannot get the property by way of survivorship, then the question is whether his wife who succeeds through the husband can succeed to the property? Our answer to this question is in negative. In fact, prior to the amendment of the Hindu Succession Act, Sections like 25 & 27 were not there but the murderer of his own father was disqualified on the principle of justice, equity and good conscience and as a measure of public policy. This position of law was enunciated by the Privy Council way back in 1924 in the case of Kenchava Kom Sanyellappa Hosmani and Anr. v. 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 : (1904)14MLJ297 , their Lordships reject, as did the High Court here, any such distinction. The theory of legal and equitable estates is no part of Hindu law, and should not be introduced into discussion. The second question to be decided is whether the title can be claimed through the murderer. If this were so, the defendants as the murderer's sisters, would take precedence of the plaintiff, his cousin. In this matter also, their Lordships are of opinion that the Courts below were right. The murderer should be treated as non- existent and not as one who forms the stock for a fresh line of descent. It may be pointed out that this view was also taken in the Madras case just cited."

Their Lordships also explained the decision in the case of Gangu v. Chandrabhagabai (1908)10BOMLR149 and held as follows :

"It was contended that a different ruling was to be extracted from the decision of the Bombay High Court in Gangu v. Chandrabnagabai. This is not so. In that case, the wife of a murderer was held entitled to succeed to the estate of the murdered man but that was not because the wife deduced title through her husband, but because of the principle of Hindu family law that a wife becomes a member of her husband's gotra, an actual relation of her husband's relations in her own right, as it is called in Hindu law a gotraja-sapinda. The decision therefore has no bearing on the present case. "

Therefore, the principle which has been enunciated by their Lordships is in no uncertain terms totally disinherit the son who has murdered his father. Their Lordships have observed as follows:

"A murderer must for the purpose of the inheritance, be treated as if he were dead when the inheritance opened and as not being a fresh stock of descent; the exclusion extends to the legal as well as beneficial estate, so that neither he can himself succeed nor can the succession be claimed through him."

18. 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. AIR1942Mad277 (K.Stanumurthiayya and Ors. v. K.Ramappa and Ors.) ii. AIR1953All759 ( Nakchhed Singh and Ors. v. Bijai Bahadur Singh and Anr.) iii. AIR1956All707 (Mata Badal Singh and Ors. v. Bijay Bahadur Singh and Ors.) iv. AIR1982Bom68 ( Minoti v. Sushil Mohansingh Malik and Anr.).

19.This position of law was incorporated by way of Section 25 of the Hindu Succession Act, 1956 as quoted above, which clearly enunciates that a person who commits murder or abates the commission of murder shall be disqualified from inheriting the property of the person murdered, or any other property in furtherance of the succession to which he or she committed or abetted the commission of the murder. In fact, the objects and reasons also makes a reference to the Privy Council judgment (supra). The objects and reasons for enacting Section 25 read as under :

A murderer, even if not disqualified under Hindu Law from succeeding to the estate of the person whom he has murdered, is so disqualified upon principles of justice, equity and good conscience. The murdered is not to be regarded as the stock of a fresh line of descent but should be regarded as non- existent when the succession opens.

20.Therefore, once it is held that a person who has murdered his father or a person from whom he wants to inherit, stands totally disqualified. Section 27 of the Hindu Succession Act makes it further clear that if any person is disqualified from inheriting any property under this Act, it shall be deemed as if such person had died before the intestate. That shows that a person who has murdered a person through whom he wants to inherit the property stands disqualified on that account. That means he will be deemed to have predeceased him. The effect of Section 25 read with Section 27 of the Hindu Succession Act, 1956 is that a murderer is totally disqualified to succeed to the estate of deceased. The framers of the Act in the objects and reasons have made a reference to the decision of the Privy Council that the murderer is not to be regarded as the stock of a fresh line of descent but should be regarded as non-existent. That means that a person who is guilty of committing the murder cannot be treated to have any relationship whatsoever with deceaseds estate.

21. Now, adverting to the facts of the present case, the effect of Sections 25 and 27 is that the respondent No.1 cannot inherit any property of his father as he has murdered him on the principle of justice, equity and good conscience and the fresh stock of his line of descent ceased to exist in that case. Once the son is totally disinherited then his whole stock stands disinherited i.e. wife or son. The defendant-respondent No.1 son himself is totally disqualified by virtue of Sections 25 and 27 of the Hindu Succession Act and as such the wife can have no better claim in the property of the deceased, Ramasamy Konar.

22.Therefore, as a result of our above discussion, we are of opinion that the view taken by the learned Single Judge of the High Court of Madras is correct that the plaintiff is not entitled to inherit the estate of the deceased, Ramasamy Konar and the learned Single Judge has rightly set aside the orders of the two courts below. Since we cannot decide this appeal without deciding the right of the respondent No.1 as the right of the appellant flows therefrom as his wife i.e. the plaintiff. Therefore, it was necessary for us to first decide whether the respondent No.1 could succeed or inherit the estate of his deceased father. When son cannot succeed then the wife who succeeds to the property through the husband cannot also lay a claim to the property of her father-in -law. The appeal is thus dismissed. No order as to costs.

(g) In Smt. Janak Rani Chadha Vs. State (NCT of Delhi) and another, reported in AIR 2007 DELHI 107, parents lost the precious life of their daughter, at the hands of their son-in-law. The deceased left behind some property which was purchased by her, prior to marriage and she died intestate. The parents sought for Letters of Administration. A notice of probate petition was issued to the husband of the deceased and so also to the public at large, through publication in the newspapers inviting objections, if any. In response to the notice, the husband filed his reply stating that he had no objection to the grant of 'Letters of Administration' to the parents of the deceased. However, his parents laid a claim to the property. Considering the question as to whether the parents of the husband have any right to claim any inheritance to the estate of the deceased through the murderer in the light of Section 27 of the Hindu Succession Act, the Delhi High Court at paragraph Nos.3, 5 and 6 held as follows:-

3. It is not in dispute that the husband was convicted under Section 302 IPC for committing the murder of his wife and that in appeal his conviction was converted from Section 302 to Section 304 IPC Part I. It is laid down in Section 25 of the Hindu Succession Act 1956 that a person who commits murder shall be disqualified from inheriting the property of the person murdered. If the husband has not staked claim to the property of his wife it is not on account of any remorse on his part but because of this section. I say so for the reason, that during the course of arguments his counsel contended that the property should go to his parents, despite the fact, that the parents themselves had made no claim to it. The submission was based on Section 15 of the Hindu Succession Act, 1956 which reads as under : -

15.General rules of succession in the case of female Hindus:- (1) The property of a female Hindu dying intestate shall devolve according to the rules set out in Section 16,-

(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;

(b) secondly, upon the heirs of the husband;

5. There is no dispute that in view of Section 25 of the Hindu Succession Act the husband is not entitled to claim inheritance to the property of his deceased wife. The said section has been incorporated in the Act on the maxim Nemo Ex Suo Delicto Melforem Suam Conditionem force Protest. It is based on the principles of justice, equity and good conscience to make it impossible for a murderer who deserves to be hanged or to be shut behind the prison bars for life, to derive advantage or beneficial interest from the very heinous act committed by him. This has been so stated in the case Nannepuneni Seetharamaiah and Ors. v. Nannepuneni Ramakrishnaiah reported in : AIR1970AP407 . I am in complete agreement with what has been held in the said judgment.

6. As regards Section 27 it goes a step further. It treats, of-course by fiction of law, such person as is described in Section 25 as dead before the intestate. This means that he was non-existent for the purpose of inheritance and therefore no right to the estate of the deceased can be claimed through him. Admittedly the parents of the husband have no independent locus to claim inheritance to the property of the deceased. They can claim only through their son which is impermissible.

20. What is justice, equity and good conscience is explained by the Supreme Court in Shri Rattan Lal Vs. Shri Vardesh Chander and Others, reported in 1976 (2) SCC 103, and in the words of Hon'ble Mr.Justice Krishna Iyer, The concept of 'justice, equity and good conscience' comes into play in the absence of any specific legislative provision. In India and in other colonies during the imperial era a tacit assumption had persuaded the courts to embrace English law (the civilizing mission of the masters) as justice, equity and good conscience.

21. Further, the Apex Court while considering the abovesaid concept of 'justice, equity and good conscience' an English common law, at paragraph No.21 held as follows:-

This is the genesis of the idea that Indian 'good conscience' is English Common Law during the reign of Empress Victoria. The imperatives of Independence and the jural postulates based on the new value system of a developing country must break off from the borrowed law of England received sweetly as 'justice, equity and good conscience'. We have to part company with the precedents of the British-Indian period tying our non-statutory area of law to vintage English law christening it 'justice, equity and good conscience'. After all, conscience is the finer texture of norms woven from the ethos and lifestyle of a community and since British and Indian ways of life vary so much that the validity of an anglophilic bias in Bharat's justice, equity and good conscience is questionable today. The great values that bind law to life spell out the text of justice, equity, and good conscience and Cardozo has crystallised the concept thus:

Life casts the mould of conduct which will some day become fixed as law.

Free India has to find its conscience in our rugged realities and no more in alien legal thought. In a larger sense, the insignia of creativity in law, as in life, is freedom from subtle alien bondage, not a silent spring nor hot-house flower.

22. Though Paragraph No.23 of the above judgment deals with a provision relating to Transfer of property, it is worth reproduction to understand as to how, the legislature has brought about an amendment on the principles of justice, equity and good conscience and also to understand as to how the abovesaid principles have to be applied.

23. This Court, in Namdeo has explained the rule of justice,equity and good conscience. It observed, at p. 1015:

It is axiomatic that the courts must apply the principles of justice, equity and good conscience to transactions which come up before them for determination even though the statutory provisions of the Transfer of Property Act are not made applicable to these transactions. It follows therefore that the provisions of the Act which are but a statutory recognition of the rules of justice equity and good conscience also govern those transfers. If, therefore, we are satisfied that the particular principle to which the legislature has now given effect by the amendment to Section 111(g) did in fact represent a principle of justice, equity and good conscience, undoubtedly the case will have to be decided in accordance with the rule laid down in the section, although in express terms it has not been made applicable to leases executed prior to the Transfer of Property Act coming into force.

The main point for consideration thus is whether the particular provision introduced in Sub-section (g) of Section 111 of the Transfer of Property Act in 1929 is but a statutory recognition of a principle of justice, equity and good conscience, or whether it is merely a procedural and technical rule introduced in the section by the legislature and is not based on any well-established principles of equity. The High Court held, and we think rightly, that this provision in Sub-section (g) of Section 111 in regard to notice was not based upon any principle of justice, equity and good conscience. In the first instance it may be observed that it is erroneous to suppose that every provision in the Transfer of Property Act and every amendment effected is necessarily based on principles of justice, equity and good conscience. It has to be seen in every case whether the particular provisions of the Act relied upon restates a known rule of equity or whether it is merely a new rule laid down by the legislature without reference to any rule of equity and what is the true nature and character of the rule. Now, so far as Section 111(g) of the Act is concerned, the insistence therein that the notice should be given in writing is intrinsic evidence of the fact that the formality is merely statutory and it cannot trace its origin to any rule of equity. Equity does not concern itself with mere forms or modes, of procedure. If the purpose of the rule as to notice is to indicate the intention of the lessor to determine the lease and to avail himself of the tenant's breach of covenant it could, as effectively, be achieved by an oral intimation as by a written one without in any way disturbing the mind of the chancery judge. The requirement as to written notice provided in the Section therefore cannot foe said to be based on any general rule of equity. That it is not so is apparent from the circumstance that the requirement of a notice in writing to complete a forfeiture has been dispensed with by the legislature in respect to leases executed before 1st April, 1930 Those leases are still governed by the unlamented Sub-section (g) of Section 111. All that was required by that Sub-section was that the lessor was to show his intention to determine the lease by some act indicating that intention. The principles of justice, equity and good conscience are not such a variable commodity, that they change and stand altered on a particular date on the mandate of the legislature and that to leases made between 1882 and 1930 the principle of equity applicable is the one contained in Sub-section (g) as it stood before 1929, and to leases executed after 1st April 1930, the principle of equity is the one stated in the Sub-section as it now stands. Question may also be posed whether according to English law a notice is a necessary requisite to complete a forfeiture.

23. As per Section 3 of the Hindu Succession Act, 'heir' means any person, male or female, who is entitled to succeed to the property of an intestate under this Act. Had he not committed murder, then as per Sections 15 and 16 of the Act, the appellant/defendant would be qualified and entitled to inherit the property of his wife. Entitlement to succeed to the property is not an independent right de hors the statutory disqualification under Section 25 of the Act, which states that 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. Entitlement to succeed to the property of the victim depends upon the key factor whether he is qualified to succeed. When a heir is disqualified under Section 25 of the Act, he cannot be said to be entitled to succeed to the property of the deceased. Therefore, the findings of the Courts below that the appellant/defendant is not entitled to the property of the deceased Muniyendra, cannot be said to be perverse or contrary to the provisions of the statute, principles of 'justice, equity and good conscience'. As per Section 27 of the Act, if any person is disqualified from inheriting any property under this Act, it shall devolve as if such person had died before the intestate, which means that he was non existent for the purpose of inheritance and therefore, no right to the estate of the deceased can be claimed through him.

24. One of the contentions raised by the learned counsel for the appellant/defendant is that family pension is not a property and therefore, by virtue of the disqualification provided under Section 25 of the Act, the appellant/defendant cannot be said that he is disentitled.

25. As per Section 5 of the Act, the Act shall not apply to,

(i) any property succession to which is regulated by the Indian Succession Act, 1925, by reason of the provisions contained in Section 21 of the Special Marriage Act, 1954;

(ii) any estate which descends of a single to a single heir by the terms of any convenant or agreement entered into by the Ruler of any Indian State with the Government of India or by the terms of any enactment passed before the commencement of this Act;

(iii) the Valiamma Thampuram Kovilagam Estate and the Palace Fund administered by the Palace Administration Board by reason of the powers conferred by Proclamation (9 of 1124), dated 29th June 1949, promulgated by the Maharaja of Cochin.

26. As per Section 14(1) of the Act, any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.

Explanation.-- In this sub-section, property includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after the marriage, or be her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement to this Act.

(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil Court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.

27. The issue as to whether family pension payable under the service rules could be bequeathed by means of a will by the deceased employee during his life time, came up for consideration before the Supreme Court in Smt Violet Issaac and others Vs. Union of India (UOI) and others, reported in 1991 (1) SCC 725, wherein, at paragraph No.4, the Apex Court held as follows:-

4. The dispute between the parties relates to gratuity, provident fund, family pension and other allowances, but this Court while issuing notice to the respondents confined the dispute only to family pension. We would therefore deal with the question of family pension only. Family Pension Rules 1964 provide for the sanction of family pension to the survivors of a Railway Employee. Rule 801 provides that family pension shall be granted to the widow/widower and where there is no widow/widower to the minor children of a Railway servant who may have died while in service. Under the Rules son of the deceased is entitled to family pension until he attains the age of 25 years, an unmarried daughter is also entitled to family pension till she attains the age of 25 years or gets married, which ever is earlier. The Rules do not provide for payment of family pension to brother or any other family member or relation of the deceased Railway employee. The Family Pension Scheme under the Rules is designed to provide relief to the widow and children by way of compensation for the untimely death of the deceased employee. The Rules do not provide for any nomination with regard to family pension, instead the Rules designate the persons who are entitled to receive the family pension. Thus, no other person except those designated under the Rules are entitled to receive family pension. The Family Pension Scheme confers monetary benefit on the wife and children of the deceased Railway employee, but the employee has no title to it. The employee has no control over the family pension as he is not required to make any contribution to it. The Family Pension Scheme is in the nature of a welfare scheme framed by the Railway Administration to provide relief to the widow and minor children of the deceased employee. Since, the Rules do not provide for nomination of any person by the deceased employee during his life time for the payment of family pension, he has no title to the same. Therefore, it does not form part of his estate enabling him to dispose of the same by testamentary disposition.

28. While declaring that family pension does not form part of the estate enabling a railway employee in the abovesaid case to dispose of the same by testamentary disposition, the Supreme Court has also considered a case in Jodh Singh Vs. Union of India and another, reported in 1981 (1) SCR 929, wherein, the Apex Court after elaborate discussion held that family pension is admissible on account of the status of a widow and not on account of the fact that there was some estate of the deceased which devolved on his death to the widow. The Court observed:

Where a certain benefit is admissible on account of status and a status that is acquired on the happening of certain event, namely, on becoming a widow on the death of the husband, such pension by no stretch of imagination could ever form part of the estate of the deceased. If it did not form part of the estate of the deceased it could never be the subject matter of testamentary disposition.

The Court further held that what was not payable during the life time of the deceased over which he had no power of disposition could not form part of his estate. Since the qualifying event occurs on the death of the deceased for the payment of family pension, monetary benefit of family pension cannot form part of the estate of the deceased entitling him to dispose of the same by testamentary disposition.

29. In the light of the specific exclusion of the Act provided under Section 5, Explanation to the word 'property' contained in Section 14 of the Act and the judgment of the Supreme Court in Smt Violet Issaac and others Vs. Union of India (UOI) and others, reported in 1991 (1) SCC 725, this Court agrees with the contention of the learned counsel for the appellant/defendant that family pension cannot fall within the word 'property' as explained in Section 14 and occurs in other provisions of the Act. However, on the contention that both the Courts below have exceeded in their jurisdiction, in holding that the mother of the deceased Muniyendra as the only legal heir entitled to receive all the benefits of deceased Muniyendra which is not prayed for, this Court deems it fit to have a cursory look at the provisions relating to payment of gratuity and family pension as provided in the Tamil Nadu Pension Rules, 1978. Persons who are eligible to receive gratuity are mentioned in rule 46 of the Tamil Nadu Pension Rules, 1978.

30. As per Section 46-A(1), of the Tamil Nadu Pension Rules, if a person, who in the event of death of a Government servant while in service is eligible to receive gratuity in terms of Rule 46, is charged with an offence of murdering that Government servant or for abetting in the commission of such an offences, his claim to receive his share of gratuity shall remain suspended till the conclusion of the criminal proceedings instituted against him.

31. As per Section 46-A(2)(a), of the Tamil Nadu Pension Rules, if a person, who in the event of death of a Government servant while in service is eligible to receive gratuity in terms of Rule 46, is convicted for the murder or abetting in the murder of the Government servant, he shall be debarred from receiving his share of gratuity which shall be payable to other eligible members of the family, if any.

32. As per Section 46-A(2)(b), of the Tamil Nadu Pension Rules, if he is acquitted of the charge of murdering or abetting in the murder of the Government Servant, his share of gratuity shall be payable to him.

33. Similar disqualification is provided under rule 49 (11-C) which deals with family pension and it is extracted hereunder:-

(11-C) (a) If the person who in the event of death of a Government servant while in service or after retirement, is eligible to receive family pension under this rule, is charged with the offence of murdering the Government servant or for abetting in the commission of such an offence, the claim of such a person including, other eligible member or members of the family to receive the family pension shall remain suspended till the conclusion of the criminal proceedings instituted against him.

(b) If on the conclusion of the criminal proceedings referred to in clause (a) the person concerned.-

(i) is convicted for the murder or abetting in the murder of the Government servant, such a person shall be debarred from receiving the family pension which shall be payable to other eligible member of the family from the date of death of the Government servant;

(ii) is acquitted of the charge of murder or abetting in the murder of the Government servant, the family pension shall be payable to such person from the date of the death of the Government servant.

34. Though the Courts below have not extracted the relevant provisions of the Tamil Nadu Pension Rules, debarring a person from receiving Gratuity, as well as Family Pension in the case of conviction for murder or abetting in the commission of murder of the Government Servant, the finding recorded by the Courts below cannot be said to be contrary to law. Even though Hindu Succession Act does not specifically debar the murderer from receiving the service or the death benefits of the victim, the disqualification provided under Section 25 of the Act, to inherit the property of the person murdered, should be extended even to receive the above benefits and it can be justified on the principle of 'justice, equity and good conscience' otherwise, a person who is disqualified to inherit any movable and immovable properties acquired by a female Hindu would be otherwise qualified to receive the service and death benefits of the victim.

35. In a given case, if the deceased Government Servant or an employee of the public sector undertaking had in his credit a considerable amount towards General Provident Fund or there is a sum assured in the event of death to be paid by LIC, if the murderer who is disqualified to inherit the property of the person murdered under Section 25 of the Hindu Succession Act has to be held as not entitled to the service and death benefits of the deceased, then granting any relief in favour of the murderer, would be opposed to the principles of 'justice, equity and good conscience. It is now well settled that the abovesaid principle can be applied in a case where there is no specific law. But pointed out earlier, there are provisions under the Tamil Nadu Pension Rules, 1978, debarring a murderer from receiving Gratuity and Family Pension. A murderer should be treated as non-existent, as one who does not form a fresh line of descent and that he should not be allowed to take advantage of his crime.

36. In the light of the statutory provisions and based on the principle of justice, equity and good conscience', the finding recorded by the Courts below holding that the respondent/plaintiff alone is entitled to receive the death benefits of the deceased Muniyendra, cannot be said to be illegal, contrary to law, nor can there be any inference that the Courts below manifestly erred in granting a relief which is not sought for. Yet another contention raised by the learned counsel for the appellant/defendant that the Courts below ought to have considered the mitigating factors taken into consideration, for reducing the sentence, does not merit any consideration at all, in the light of the decisions stated supra. For the abovesaid reasons, the suit which is prayed for mere declaration without any consequential relief is sustainable in law. Hence, all the substantial questions of law are answered in the negative against the appellant/defendant. Accordingly, the second appeal is dismissed. The parties are directed to bear their own costs.

nb To

1)Learned Subordinate Court, Gudiyatham.

2)Learned Principal District Munsif Court, Gudiyatham

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