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Minoti Vs. Sushil Mohan Singh Malik and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily;Criminal
CourtMumbai High Court
Decided On
Case NumberFirst Appeal No. 182 of 1981
Judge
Reported inAIR1982Bom68; 1981MhLJ659
ActsHindu Succession Act, 1956 - Sections 25 and 27; Indian Penal Code (IPC), 1860 - Sections 300
AppellantMinoti
RespondentSushil Mohan Singh Malik and anr.
Appellant AdvocateM.D. Pathak, Adv.
Respondent AdvocateM.P. Patel, Adv.
Excerpt:
.....his own crime which is approved by the privy council in kanchava's case air 1924 pc 209. when the hindu succession act, 1956 was enacted, the legislature had before it the decision of the privy council in kanchawa's case and it appears that it is this well established principle of public policy which legislature thought fit to incorporate in s. 10. it is well settled that the woed 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. 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. 12. in my opinion this is the correct approach for interpreting the provisions of section 25 of the..........her self-acquired and self-earned separate properly and in view of the provisions of s. 25 of the hindu succession act, 1956 daughter alone is entiled to get the said amount.2. it appears to be an admitted position that defendant no.1 sushilkumar was prosecuted for an offence punishable under section 302 of the penal code in sessions case no.196 of 1980 decided on 29th of oct., record the sessions court came to the conclusion that accused sushilkumar used a sharp-edged revathi. while inflicting the injuries he chose vital part of the body and used considerable force. the sessions court further found that in view of the number of injuries and their location considered together with other factors clearly indicate that accused sushilkumar did the act with intention of causing the death of.....
Judgment:

1. The plaintiff who is a minor filed the suit through her next friend, maternal grant-mother 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 her self-acquired and self-earned separate properly and in view of the provisions of S. 25 of the Hindu succession Act, 1956 daughter alone is entiled to get the said amount.

2. It appears to be an admitted position that defendant No.1 sushilkumar was prosecuted for an offence punishable under section 302 of the penal code in sessions case no.196 of 1980 decided on 29th of oct., record the sessions court came to the conclusion that accused sushilkumar used a sharp-edged Revathi. While inflicting the injuries he chose vital part of the body and used considerable force. The sessions court further found that in view of the number of injuries and their location considered together with other factors clearly indicate that accused sushilkumar did the act with intention of causing the death of Revathi,After recording this finding the learned judge ultimately came to the conclusion that he 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 deceased Revathi. As a result of this finding he was convicted of the offence punishable under s. 304 part I of the I.P.C. and was sentenced to suffer rigorous imprisonment for seven years and to pay a fine of Rs.1000/- or in default to suffer further rigorous imprisonment for six months. In the suit filed on behalf of the minor it was contended that as the defendent No.1 was responsible for committing murder of deceased Revathi, he is not entitled to succeed to the property of deceased in view of the provisions of S. 25 of the Hindu succession Act. In this suit an injunction was also sought against defendant No.1 restraining him from withdrawing the amount from the Bank. The trial Court framed necessary issues and ultimately came to the conclusion on the strength of the affidavit filed by the guardian and next friend of the plaintiff that money lying in the special saving bank account exclusively belonged to the deceased mother of the plaintiff. He also came to the conclusion that in view of the conviction of defendant No.1 under s. 304 , part I of the I.P.C. he is not disqualified under S. 25 of the hindu Succession Act. So far as the amount of Rs. 6,800/- is concernd, which according to the plaintiff belonged to her being proceeds of the lottery prizes earned in the lottery tickets purchased in her name and credited in the account in the Bank, the learned Judge held that for that purpose the plantiff will have to pursue a separate remedy as such a declaration cannot be granted in the present suit as framed. In view of these findings tje ;earned Judge decreed the claim of the plaintiff to the extent of Rs.5831-31 p. Only and also granted leave to the plaintiff to file a fresh suit in respect of the amount of Rs.6,800/- He also granted necessary reliefs including that of permanent injunction to the extent of Rs.5831 -31 p.

3. Being aggrived by this judgment and decree the plaintiff has filed the present appeal. Defendant No. 1 has also filed a cross objection challenging the finding recorded against him and has also explained the circumstances under which he remained absent in the trial court and has prayed that the exparte decree should be set aside and he should be given an opportunity to defend the suit on merits. According to him the could not remain present in court because he was detained in jail and the counsel appearing for him remained absent on the date of hearing.

4. Shri pathak, learned counsel appearing for the appellant contented before me that the interpretation put forward by the learned Judge upon the provisions of S. 25 of the Hindu succession Act is wholly illegal. According to shri pathak the phraseology used in S. 25 of the Hindu Succession Act is 'a person who commits murder or abets commission of murder'. The section does not contemplate that the person should be convicted or sentenced for the offence of murder. Shri pathak has also contended that the word 'murder' is not defined in the Hindu succession Act. Therefore, the meaning assigned to the said word in the I.P.C. cannot be incorporated in S. 25 while construing the said provision. In the absence of the definition of the term 'murder' it will have to be given the meaning as understood in common parlance; and if so understood it will include all sorts of culpable homicides. In support of his contention shri pathak has relied upon the decision of the Andhra pradesh High court in Nannepuneni Seetaramaiah v. Nannepuneni Ramakrishnaiah, : AIR1970AP407 . A decision of this court in Girimallappa Channappa v. Kanchava ILR. (1921) 45 Bom 768 : AIR 1921 Bom 270, which is confirmed by the privy council in kanchawa sonyllappa v. Girimallappa channappa AIR 1924 PC 209 . He is also relying upon the decision of the madras High court in Sarvanabhava v. Sallemmal : (1972)2MLJ49 .

5. On the other hand it is contended by shri patel, learned counsel appearing for respondent no. 1 that as the word 'Murder' is not defined in the Hindu succession Act and is only defined in the I.P.C. the said term will have to be given the meaning as assigned to it in he I.P.C. Therefore, unless a person is convicted of the offence of murder, under S. 302 of I.P.C. he is not disqualified under S. 25 of the Hindu Succession Act. According to shri patel, as in the present case respondent No.1 is convicted for for an offence punishable under S. 304, part I of the I.P.C. viz. Culpable homicide not amounting to murder, the learned judge of the trial court was right in coming to she conclusion that defendant No.1 was not disqualified to succeed to the property of the deceased Revathi under S. 25 of the Hindu succession Act.

6. For properly appreciating the controversy raised before me , it is necessary to make a detailed reference to the provisions of Ss. 25 and 27 of the Hindu secession Act. Which read as under :-

'25. A person who commits murder or abets the commission of murder shall be disqualified from inheriting the property of the person murdered or any other property in furtherance of the succession to which he or she committed or abetted the commission of the murder.

27. If any person is disqualified from inheriting any property under this Act, it shall devolve as if such person had died before the intestate.'

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 woed 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.

8. As observed by the privy council in Lawrence Arthus Adamson v. Melbourne and Metropolitan Board of Works AIR 1929 PC 181 :

' It is always unsatisfactory and generally unsafe to seek the meaning of words used in an Act in the definition clauses of another statute dealing with matters more or less cognate even when enacted by the same legislature.'

The supreme court has also expressed the similar view in the Board of Muslim Wakfs, Rajasthan v. Radha Krishan, : [1979]2SCR148 and has observed that (at p. 295):

'It is not a sound principle of construction to interpret expressions used in one Act with reference to their use in another Act and decisions rendered with reference to construction of one Act cannot apply with reference to the provisions of another Act, unless the two Acts are in pari materia.'

It is an admitted position that two enactments are neither cognate nor pari materia and cover different fields . Therefore, in my opinion words and phrases used in S. 25 of the Hindu succession Act will have to be construed and interpreted harmoniously keeping in view the object of the legislation, and not in technical sense as defined in I.P.C.

9. In this context a reference could also be made to the following observation in Halsburry's Laws of England, Third Edition, vol.39 para. 1315, p.869:-

'Murder or manslaughter. It is contrary to public policy that a man should be allowed to claim a benefit resulting from his own crime. Accordingly a donee who is proved to be guilty of the murder or manslaughter of the testator cannot take any benefit under his will.'

It is this principle of public policy that a person cannot be allowed to claim benefit resulting from his own crime which is approved by the privy council in Kanchava's case AIR 1924 PC 209. When the Hindu succession Act, 1956 was enacted, the legislature had before it the decision of the privy council in Kanchawa's case and it appears that it is this well established principle of public policy which legislature thought fit to incorporate in S.25 of the Act , so that the person will not be tempted to commit murder to inherit the property of the person murdered.

10. It is well settled that the woed 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. wo;; 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 t he 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.'

11. In the present case defendant No.1 is convicted of the offence punishable under S. 304 part of I.P.C. viz. For the offence of culpable homicide. From the findings recorded by the learned sessions Judge it is clear that as many as eleven incised injuries were inflicted by defendant No.1 with a sharp edged knife on the person of deceased Revathi. He chose vital part of the body for inflicting these injuries and had used considerable force. He assaulted Revathi with the intention of causing her death. Therefore it can safely be held that he has committed murder iof Revathi within the meaning of the said expression as used in S. 25 of the Hindu succession Act, 1956 and therefore is disqualified from inheriting the property of deceased Revathi, the person murdered. Similar view is taken by Andhra Pradesh High court in Nannepuneni Seetaramaiah v. Nannepuneni Ramakrishnaniah, : AIR1970AP407 , wherein it is observed by the Andhra pradesh High court that to apply the disqualification underS.25 of hindu succession Act it is not necessary that the person who committed murder or abetted commission of murder must also have been convicted of the offence of murder or of abetment of murder under S. 302 of the I.P.C. The said section application of the section should not be approached from the point of view of punishment for murder.

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.

13. However,at this this stage I am informed shri Pathak, learned counsel for the plaintiff that an appeal is filled against the said order of conviction by the defendant No.1 and the same is pending. He has further stated that the complainant has also filed a revision petition against the order of acquittal passed by the learned sessions Judge acquitting him of the offence under section 302 of the I.P.C. and the said revision petition is also pending. Therefore, I am not called upon at this stage to decide the question as to what will be the scope of inquiry before the civil court in case of acquittal. I have decided the question of disqualification under S. 25 of the Hindu succession Act on the basis of the position as it stands today. Parties are at liberty to raise all permissible contentions in case of subsequent development or change in circumstances.

14. So far tas the merits of the controversy are concerned, it does appear that because of the pendency of the sessions case and subsequent conviction, defendant No.1 remained absent in the trial Court. It is no the doubt true that he had engaged a counsel at the initial stage but subsequently the counsel also remained absent and the matter proceeded exparte against him. Shri Patel, learned counsel appearing for defendant No.1 has contended that money lying in deposit in Bank belonged to defendant No.1 alone and not to deceased Revathi. He further contended that to proved this fact defendant No.1 should be given an opportunity to file a written statement and lead evidence in support of his case. In all fairness shri pathak has conceded before me that in view of the peculiar facts and circumstances of the case he has no objection if defendant No.1 is given an opportunity to contest the claim of the plaintiff on merits. However, he has further submitted that in that case the plaintiff should also be given an opportunity to amend the plaint the claim a relief of declaration even qua the amount of Rs.6,800/- which according to the plaintiff exclusively belongs to her as it represents the proceeds of lottery prize earned by the plaintiff herself on the tickets purchased in her name though said amount was credited in the joint account of Revathi and defendant No.1 shri patel, learned counsel defendant No.1 has no objection for giving such an opportunity to the plaintiff. In this view of the matter by consent of the parties the judgment and decree passed by the learned Judge of the City Civil court Bombay dated 23-11-1980 is set aside and the matter is remitted back to the city Civil Court for deciding it on merits on accordance with law after giving a reasonable opportunity to both parties to put forward their respective cases. It is needless to say that after remand the plaintiff will be entitled to amend her plaint and claim a relief of declaration qua Rs.6,800/- and also carry on other consequential amendments, if neccessary. The defendant will also be at liberty to file this written statement and thereafter the trial court will decide the suit on merits in accordance with law. Since the plaintiff is a minor and her mother is dead and the father is also in jail . this is a fit case which requires priority and, therefore the trial court is directed to hear and decide the suit as expeditiously as possible preferably before the 31st of Dec., 1981.

15. During the pendency of the suit the ad interim injunction granted by the trial Court restraining the defendant No.1 from withdrawing the amount from the Bank shall continue. The parties are directed to appear before the trial court on 29th of June, 1981. Thus the appeal is partly allowed. Since by consent of the parties the matter is being remitted back, no orders on cross-objection are necessaary. In the circumstances of the case there will be order as to costs in this appeal as well as in cross-objection.

16. Order accordingly.


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