Norman Macleod, Kt., C.J.
1. This is a suit for possession of property which belonged to one Ramanna deceased. He left an adopted son Parappa and a widow Chanbasava. Parappa died a month after Ramanna and thereafter Chanbasava became entitled to the suit property as her son's heiress. Ramanna's nephew Hanmappa claimed to be his adopted son, but the Court decided against him, whereupon he murdered Chanbasava. He was convicted and sentenced to transportation for life. The plaintiff is the son of Ramanna's sister Basava, while the t defendants are the sisters of Ramanna's brother Vadakappa. On the death of Chanbasava, Hanmappa was admittedly the nearest heir. Unless the fact that he murdered Chanbasava in some way affects his rights to inherit, the plaintiff's suit must fail.
2. But if he is disqualified, the question arises, whether he should be treated as non-existent, or whether he should be treated as a person deceased who formed the stock for a fresh line of descent. If the latter, again the plaintiff faila. If the former, another question arises whether the plaintiff as father's sister's son can claim preference to the father's brother's daughters or is only entitled to equal treatment with them.
3. Tho learned trial Judge held, on the authority of Vedanayaga Mudaliar v. Vedammal I.L.R(1904) Mad. 591, that the legal estate vested in Hanmappa, but he was prevented from enjoying it on account of the disqualification brought about by his murdering Chanbasava, and consequently he became a trustee for the reversioners under Section 94 of the Indian Trusts Act.
4. As between the parties to the suit he held that as they were bandhua of an equal degree they were entitled to succeed equally under the general rule of Hindu law that a plurality of heirs of the same degree share the inheritance equally.
5. Now the research of the learned Judge was unable to find any text of Hindu law directly bearing on the question whether a murderer can succeed as heir of the person he has murdered. But on the analogy of the texts which prescribe the restoration of property as one of the punishments of robbery accompanied by murder, and the reversal of all dealings brought about by force or deceit, he considered that it night be deduced that the Shastras directed that the murderer's succession to the estate of the person he murdered should be prevented from becoming effective. Now analogies are often dangerous, while the distinction between the legal and beneficial estate which was the ground for the decision in Vedanayaga Mudaliar v. Vedammal appears to me, with all due respect, too artificial to provide a satisfactory solution of the question. I agree with my learned brother, who will deal exhaustively with the Hindu law, that there is no direct provision bearing on the point we have to decide, and we must, therefore, be guided by the principles of equity, justice and good conscience. The question is one which cannot demand much elaboration, either it is right or it is wrong that a murderer should benefit by the crime he has committed, and' there can be no doubt that on the above principles it must be wrong, so we are entitled to come to our own conclusions, though it may be useful to consider any relevant decisions by the Courts of other countries.
6. In England it has been held that a murderer cannot take any benefit under the will of a person he has murdered: In the estate of Hall  P. 1. Whether he can benefit under the Statute of Distributions if the murdered person dies intestate has not been decided. In Crippen's case  P. 108 the murderer left a will appointing a Miss Le Neva as his executrix. She applied for letters of administration to the estate of the murdered wife, but the Court decided against her. But that still left open the question Whether as Crippen's executrix she could claim a share in the estate. In the United States of America it has been held that no interference with the provisions of the Statute of Distributions would be allowed, but eminent authorities have doubted the reasoning on which those decisions were based though it seems to have been approved of by Joyce J. in In re Houghton  2 Ch. 173 where, however, the decision was really based on the finding that the murderer was insane. It seems to me clear that if it is contrary to public policy that the murderer cannot benefit under the will of his victim it is equally opposed to public policy that he can succeed to a share in the estate as heir merely because the victim has died intestate.
7. In my opinion there is an absolute disqualification. Then the question arises whether the plaintiff is the nearest heir or whether he takes equally with his female cousins.
8. In Balkrishna v. Ramkrishna : (1920)22BOMLR1442 , following Rajah Venkata Narasimha v. Rajah Surenani Venkata Purushoshama I.L.R (1908) Mad. 321, we decided that under the Mitakshara all male bandhus are to be preferred to female bandhus whatever their degree of propinquity at that time. We were not referred to the decision of Jenkins, C.J. in Saguna v. Sadashiv I.L.R (1902) Bom. 710 where he held that the father's Sister was a nearer heir to the mother's brother, on the ground that in the case of bandhus the father's line should be preferred to the mother's line. The learned Chief Justice referred to the rule propounded in Naraaimraa v. Mangammal I.L.R(1889) Mad. 10 without disapproving of it, and I doubt whether he intended to decide that all female bandhus on the father's side were to be exhausted before the male bhandhus on his mother's side could come in. Here the parties are all in the same line of Hanmanna, father of Ramanna, and following our decision in the case above referred to I think the plaintiff is entitled to succeed to the whole estate of Parappa, and not to a third only equally with the defendants.
9. I think the appeal must be allowed and the plaintiff's claim decreed. But in the peculiar circumstances of the case I think the costs of all parties should come out of the estate.
10. The main question raised in this appeal is whether a party to a murder is disqualified from inheriting the estate of the person murdered. The question arises in the following way. The suit property originally belonged to one Ramanna, who, during his life-time, adopted the plaintiff's brother Parappa. Parappa died a month after Ramanna and was succeeded by Ramanna's widow, Chanbasava. Ramanna had a brother Vadakappa who had a son Hanmappa. The latter alleged that he was the adopted son of Ramanna, but the Court decided against this allegation; and within two days of that decision Hanmappa murdered the widow Chanbsava. He was convicted of murder and sentenced to transportation for life, which sentence he is undergoing. The suit lands are in the possession of Hanmappa's two sisters, Kenchava and Gangava (defendants 1 and 2) and Gangava's husband, Ningappa (defendant 3). Plaintiff is the son of Ramanna's sister Basava. He claims to succeed to the properties as a bandhu in preference to defendants 1 and 2. This raises the further question whether, supposing Hanmappa is disqualified from inheriting, the plaintiff as a father's sister's son is a nearer revernioner than the defendants 1 and 2, who are father's brother's daughters. The First Class Subordinate Judge, who tried the suit, has held that, though the legal estate vested in Hanmappa upon the death of Chanbasava, yet his wrongful act in murdering her disqualifies him from inheriting the estate in suit: that, though the legal estate vested in Hanmappa, he is merely a trustee; for the next reversioners and cannot therefore be a fresh stock of descent to transmit the estate in suit to his own heirs as if he succeeded to it without any such disqualification. On the second question that arises he holds that the plaintiff on the one hand and defendants 1 and 2 on the other are bandhus of an equal degree and that the former is not a preferential heir to the latter. He accordingly decided that these three were entitled to succeed equally to the estate in suit, and passed a decree in plaintiff's favour for recovery by partition of one-third of the properties in suit, with a corresponding proportion of mesne profits for 1916-17 and future profits under Order XX, Rule 12, of the Civil Procedure Code. The costs of all parties were directed to come from the estate.
11. 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 id Vedanayaga Mudaliar v. Vedammal I.L.R(1904) Mad. 591 which has been followed by the learned Subordinate Judge. The judgment in that case at page 599 refers to Shah Khanan v. Kalhandhar Khan (1900) I.P.L.R. 455 where the Chief Court of the Punjab held that a Mahomedan, who has murdered his half-brother, could not be allowed to claim the deceased's property as his heir. This cease, however, can be of little, if any, assistance, for under Mjahomedan law no person, who has caused the death of another, whether intentionally or by negligence or misadventure, cfin inherit from that other. (Wilson's Digest of Anglo-Mahomedan Law, 3rd Edition, Article 267, page 295). No other reported ruling on the point has been cited. In Gangu v. Chandrabhagabai I.L.R(1907) Bom. 275 the question arose, but was not decided. The Madras decision already mentioned is, therefore, thee 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 Cleaver v. Mutual Reserve Fund Life Association (1892) 1 Q.B. 147, 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 it should merely disentitle him to any beneficial interest in inheritance. 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.
12. In Cleaver v. The Mutual Reserve Fund Life Association (1892) 1 Q.B. 147, 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 In the Estate of Crippen (1911) P. 108, 112 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.' In the Estate of Hall (1914) P. 1, followed Cleaver's case, and Lord Cozens-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 person committing a crime should 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. But it must be admitted that there is some doubt as to how far the same principle applies to the question whether the murderer is debarred from taking the estate of the murdered person which descends to him under the general rules applicable to an intestacy, as opposed to the case where he benefits under the deceased's will. The question is considered in Halsbury's Laws of England, Vol. XXVIII, page 540, foot-note (f). According to that note it appears that there are certain American decisions against any such restrictions on the murderer's capacity to inherit; and it is added that the same view appears to have been assumed in In the Estate of Crippen (1911) P. 108. The question actually arose in In re Houghton (1915) 2 Ch. 173. There Joyce J. referred to one of these American decisions, viz, Carpenter's Estate (50) Am. St. Rep. 765 and after citing part of the reasoning, on which the judgment in that case proceeds, says that it, seems to him to be very cogent reasoning, on this subject. His decision, however, was not entirely based on his concurrence with that reasoning, but also on the fact that the murderer in that case had been found to be insane when he committed that act, and that, therefore, if actually tried, he would have been acquitted if any criminal offence, even if found guilty of the &ct; of killing his father. The point, therefore, so far as English Law is concerned, remains in an uncertain state. In the American case referred to the main argument relied upon is as follows: 'It is argued, however, that it would be contrary to public policy to allow a parricide to inherit his father's estate. Where is the authority for such a contention? How can such a proposition be maintained, when there is a positive Statute which disposes of the whole subject? How can there be a public policy leading to one conclusion, when there is a positive Statute directing a precisely opposite conclusion ?.... In other words, when the imperative language of a Statute prescribes that, upon the death of a person, his estate shall vest in his children, in the absence of a will, how can any doctrine, or principle, or other thing called public policy, take away the estate of a child, and give it to some other person ?.... There can be no public policy which contravenes the positive language of a Statute.' If, however, the view taken by Fry L.J. in Cleaver's case is adopted, there is an answer to this argument. He there says (at page 156) that this principle of public policy 'must be so far regarded in the construction of Acts of Parliament that general words which might include oases obnoxious to this principle must be read...subject to it.' In the present case this objection does not arise; for we are not concerned with a deviation from any Statute. The Court in considering the question can, under Bombay Regulation IV of 1827, Section 26, have regard to 'justice, equity and good conscience', in the absence of any specific law or usage regulating the point under consideration.
13. The lower Court has cited certain texts, which, in its opinion, constitute a direction that a murderer is disqualified from obtaining the estate he seeks to get by means of a murder. This is based on the view that the murder of a person in order to obtain his or her estate is theft with murder, and as restoration of stolen property is ordered by the Shastras as part of the punishment, this restoration is to be taken to be equivalant to disqualification of the murderer from succeeding to the estate. With due deference to the learned Subordinate Judge, it seems to me that the authorities he cites are insufficient to justify this deduction. For instance Yajnyavalkya, verse 270, which is relied upon by the Subordinate Judge, says : 'Having compelled the thief to restore the property stolen, the King should punish him by the several modes of corporal punishment'. I cite the translation as given in Gharpure's edition of the Mitakshara in 'Collection of Hindu Law Texts, No. 2' Edition 1920. Both this verse, and the commentary upon it in the Mitakshara as there translated, clearly refer to the case of an ordinary theft, and it seems to me it would be extending its meaning in an unwarranted manner to construe it as covering a case of a murderer who does not actually steal anything, but will, apart from any disqualification, inherit property from the murdered person. Again the learned Subordinate Judge refers to texts relating to the reversal of dealings brought about by fraud or deceit, and says that the act of murdering a person who stands in the way of the murderer's succession to an estate is nothing less than taking that estate by force. The texts in question appear to be those in Manu, Ch. VIII, v. 168 and Yajnyavalkya, v. 81. The former as translated in the 'Sacred Books of the East', Volume XXV, page 284, runs as follows: 'What is enjoyed by force, also what has been caused to be written by force, and all other transactions done by force, Manu has declared void'. The second as translated in Gharpure's Edition of the Mitakshara, already mentioned, runs- 'Transactions, brought about by force or fraud should be upset'. But here again it seems to me that, though these texts afford some ground for holding That the rule of public policy already mentioned may be rightly applied in Hindu law, they do not justify us in saying that there is direct authority in Hindu law for holding that a murderer is disqualified from inheriting in a case like the present. The ordinary transactions that would naturally come under the provisions referred to are gifts or contracts which under English Law are voidable on account of consent thereto not being free, but obtained by coercion. When a person is killed, there is no consent obtained, but on the contrary one theory, on which the murderer is held disqualified from benefiting under the will of the murdered person, is that, as the will speaks from the date of the death of the testator, it must be presumed that the testator would have revoked the bequest in favour of the murderer : of Halsbury's Laws of England, Vol. XXVIII, p. 539, footnote (b). The case, in my opinion, is entirely different from any which could be rightly brought under those particular texts. Further, the only disqualification, which, under the texts dealing with exclusion from inheritance, might be held to cover a case like that now under consideration, is that of 'out-caste' (patit). But for the reasons given in Vedanayaga's case and also in the judgment of the Court below it cannot properly be brought under that particular head.
14. The question, therefore, in my opinion, comes down to this : Are we justified in incorporating in Hindu law the rule of public policy which precludes a man from benefiting by his own crime? I think the answer should be in the affirmative. We have first of all a very strong expression of judicial opinion that this principle should form part of any reasonable system of jurisprudence. As already mentioned it already forms part of the Mahomedan law. There is also the clearest authority for applying principles of public policy to Hindu law. Thus in Mathura Naikin v. Esu Naikin I.L.R(1880) Bom. 545 it was held on grounds of public policy that adoption by Naikins cannot be recognized by Courts of Law and confers no right on the person adopted. West J. in his judgment points out that the question was not to be decided by reference merely to the Vedic Code which recognized the existence of temple women, decision must be founded on an application of the legal consciousness of the community at the time the question arises, and that the popular sentiment would now no longer give validity to such an usage of adoption among prostitutes. This decision 1820 appears to be referred to with approval by their Lordships of the Privy Council in Ghasiti v. Umrao Jan . In The Collector of Masuiipatam v. Cavaly Vencata Narrainaapah (1860) 8 M.I.A. 50 their Lordships, in dealing with the question of the right of the Crown to take by escheat the land of a Hindu subject, though a Brahmin, dying without heirs, say: 'Their Lordships, however, are not satisfied that the Sudder Court (of Madras) was not in error when it treated the appellant's claim, as wholly and merely determinate by Hindu law. They conceive that the title which he sets up may rest on grounds of general or universal law'. There is also reason to think that the application of this principle of public policy was recognized and given effect to in some cases by the Hindu Law-givers. I have already mentioned the texts which directed restoration of property in cases where it had been obtained by force or fraud. Similarly in the case of stolen property the King was directed to restore such property to the persons from whom it had been stolen: see Yajnavalkya, Verse 36, and Commentary in the Mitakshara thereon at page 62 of Gharpure's work, and Manu, Ch. VIII, Verse 40, as translated in the Sacred Books of the East, Vol. XXV, page 260; also Yajnavalkya, Verse 270 at page 387 of Gharpure and Manu, Ch. XI, Verse 165, page 464. There is, moreover, evidence of the progress of ideas on this subject in the Hindu Shastras. Thus Manu, Ch. VIII, Verse 380, and Ch. IX, Verse 189, prohibited the King from ever taking the property of a Brahmin even though he had committed all possible crimes. But in later times this rule was modified, and according to Narada Appendix, Article 42, as translated in Sacred Books of the East, Vol. XXXIII, page 229, the King was allowed to take the entire wealth of a Brahmin or all but a fourth part of it. There can, in my opinion, be no doubt that present Hindu sentiment would favour the adoption of the rule of public policy under consideration. In Sarvadhikari's Principles of the Hindu Law of Inheritance, this learned author says (at p. 718): 'The archaic laws of the Mitakshara are not suited to the advanced state of Hindu civilization at the present day j they must be modified and altered to suit the present circumstances of the country. The ball of progress is rolling on, and new principles of exposition, discovered by the light of modern juridical science, must be applied to find out the latent meaning of the words of the Mitakshara'. One of the Judges in Vedanayaga'a case was a Hindu, and so also is the learned Subordinate Judge who tried the suit. Therefore I think there is clear justification for our applying this rule to the present case.
15. As regards the question whether the legal estate should be held to have vested in Hanmappa or not, it seems to me immaterial which view is adopted. In either case he 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. I think it would be simpler to say that the exclusion extends to the legal as well as beneficial estate, and to leave bonafide purchasers from the murderer to the protection afforded by Section 41 of the Transfer of Property Act, instead of adopting the artificial distinction of English law between a legal and a beneficial estate, in order to protect them, as has been done by the Madras High Court in Vedanayaga v. Vedammal. The question, however, is not one that need be decided in this case. It is true that in Gangu v. Ghandrabhagabai I.L.R(1907) Bom. 275, it was held that the widow of a murderer was not incapable of inheriting property, merely by reason of her husband's disqualification : but this ruling is based entirely on a consideration of the texts of Yajnavalkya, and the Commentary thereon in the Mitakshara and the Mayukha, regarding disqualification. But, as the disqualification in this case arises not under Yajnavalkya's texts on this subject, but under a rule of public policy, the question whether the murderer's legal representatives should also be excluded depends, I think, on this rule rather than on a consideration of the texts and commentaries referred to. As is pointed out in Mayne's Hindu Law, 8th Edn., at p. 839, 'the rule of public policy which excludes the murderer from inheriting the property of the person murdered would seem to include within its scope not only the murderer but his representative': and it has been so applied in English law. In any case the decision in Gangu v. Chandrabhagabai is limited to the case of the wife or widow of a disqualified Hindu, and does not govern the present case.
16. On the second point, I think we should following our previous ruling and the Madras view that a male bandhu, is entitled to preference over a female bandhu, even though the latter is nearer in degree. The facts that no female is mentioned among the instances of bandhus given in the Mitakshara, and that there is ground for thinking that Vijnaneshvara recognises the existence of the rule excluding the females in favour of preferential male heirs (of. Lakshmanammal v. Tiruvengada I.L.R(1881) Mad. 241 give strong support to this view. It has been adopted as the rule applicable to Bombay as well as to Madras in Ghose's Principles of Hindu Law, 3rd Edn., Vol. I, p. 151, and Trevelyan's Hindu Law, 2nd Edn., p. 411. The question, though raised in Saguna v. Sadashiv I.L.R(1902) Bom. 710, was not really decided. It is referred to at p. 714 in the passage of the judgment mentioning Narasimma v. Mangammal I.L.R(1889) Mad. 10; but the decision is there confined to the question whether the mother's side comes in before the father's, and the other point is ignored. In the circumstances I think we are justified in treating that case as not binding on us, and as requiring reconsideration should the same question (viz., whether a father's sister is a preferable heir to a mother's brother) come before this Court.