1. [His Lordship after dealing with the question of the factum of adoption proceeded as follows]:
2. It is true that the only evidence put forward in the case was the judgment under which Baswant was convicted and sentenced. In strict law that is not enough to prove that he murdered Babu; the utmost that it proves is that he was convicted and sentenced for the murder of Babu. But it is convenient for the sake of argument to treat Baswant as the proved murderer of Babu; and on that assumption we propose to deal with the argument that Baswant, and through Baswant his adopted son, is disqualified from partition. A suggestion was made that the adoption itself would be invalid on the ground that a murderer cannot adopt at all. But there does not seem to be any foundation for such a suggestion. The principal contention is that a murderer suffers from the same sort of disability as a person who is insane or blind, and that a person suffering under any disability as regards succession suffers under the same disability as regards survivorship also. For this latter proposition, I may refer to Ram Sahye v. Lalla Laljee Sahye 8 Cal. 149. That was a case of insanity, but the principle which it enunciates appears to be correct. But the difficulty of accepting learned counsel's argument on this point is that so far as we are aware there is no principle upon which any disability arising by reason of murder can be on the same footing as a disability arising from insanity or blindness or the other absolute disabilities dealt with in the Hindu law. The disability arising against a murderer is not an absolute disability at all. It is only a qualified disability; and even so it does not appear to have any foundation in Hindu law but is grounds upon the rules of justice, equity and good conscience. This was recognised by the Privy Council in Kenchava v. Girimallappa A.I.R. 1924 P.C. 209 where their Lordships said (p. 574):
There is much to be said for the argument of the Subordinate Judge that the principles of jurisprudence which can be traced in Hindu law would warrant an inference that according to that law a man cannot take advantage of his own wrong, and that if this case had come under consideration by the Hindu sages they would have determined it against the murderer. But it is unnecessary 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 ease the High Court have rightly decided that the principles of equity, justice and good conscience exclude the murderer.
We may therefore take it that the rules of justice, equity and good conscience exclude a murderer from taking any share either by inheritance or by survivorship in the estate of the person whom he has murdered; and the same disability would apply to a son, whether genetive or adopted.
3. But here there is no question of the murderer or his son taking advantage of the murderer's wrongful act. The plaintiff is not asking for a share either by inheritance or by survivorship in the estate of the murdered man or his son. All that the plaintiff is seeking to do is to attain by survivorship the share on partition in the property belonging to both branches of the family in which his father Baswarit had a vested right before the murder was committed., We are not aware of any general disqualification in a murderer. Neither in the texts nor in the text books, nor again in the statute law or the reported decisions is there any suggestion that a murderer ipso facto forfeits his right to property in general. What is stated is that he cannot take advantage of his act. In the present case the share which the plaintiff is now claiming would have been exactly the same even if the murder had never been committed, neither more nor less.
4. It is also argued that an enemy of a father is excluded from the estate of the father. But we are not aware of any authority which would justify us in extending that principle of Hindu law to enemies of an uncle or of a cousin; and even if we should so extend the principle, it would still not be a case of taking advantage of the murder. The principle underlying the disqualification against a murderer is simply this, that a murderer may not take advantage of the murder; and, if in any particular case there is no question of his taking advantage of the murder, we do not see how he can be excluded either from succession or from survivorship. In the result the appeal fails and is dismissed with costs payable by defendant 3.