1. This appeal preferred by defendants is directed against the judgment and decree of the Subordinate Judge, Khan Original Suit No. 6 of 1962 decreeing the suit of the plaintiff for partition and possession of his 1/5 share in Items 1 to 4 , 6 and 7 of plaint 'A' schedule and Item 18 of plaint 'B' schedule.
2. The defendants 1 to 3 and the plaintiff are the sons of one Narayana, the 4th defendant is their mother and the 5th defendant is their sister. According to the plaintiff, he and the defendants 1 to 3 were members of a Hindu undivided joint family and therefore he is entitled to partition and separate possession of his share in the joint family properties. The suit was resisted by the defendants contending inter alia that there was a prior partition where under there was allotment of shares to each of the sharers and therefore the plaintiff is precluded form seeking the relief of partition and separate possession of his share. The Subordinate Judge held that there was no prior partition as set up by the defendants, and that the plaintiff is entitled to the relief claimed only in respect of Items 1 to 4, 6 and 7 of plaint 'A' schedule and Item 18 of plaint 'B' schedule and passed a preliminary decreed accordingly.
3. Mr. Y. Suryanarayana, appearing for the appellants, contended that the evidence on record amply bears out the case of the appellants that there was a prior partition in the year 1955 and that the plaintiff walked out of the family taking his share and as such this partition action is not maintainable. As the plaintiff has also claimed his right to inherit along with his brothers, hi father's estate and as it was negatived by the Court below he has preferred the cross-objections. Mr. Suryanarayana contended that the plaintiff, being the murderer of this father, cannot inherit the estate of his father and as such he is not entitled to a share in his father's property under Section 25 and 27 of the Hindu Succession Act.
4. Mr. Madhava Rao, appearing for the respondent-plaintiff, contended that the plaintiff was not convicted for the offence of murder and therefore, he is not disqualified from inheriting his father's property. It is next urged by Mr. Madhava Rao, that the Court below has rightly negatived the case of the appellants (defendants) as the partition documents Exts. B-1 and B-5 set up by them were found to be in admissible in evidence. Therefore, the main question or consideration is whether there was a prior partition in the year 1955, whereby the plaintiff was allotted share, which disentitles him from maintain the present action.
5. The case of the plaintiff as unfolded in the plaint is that his father purchased the paint schedule properties with the moneis realised by sale of the ancestral properties situate in another village that the 1st defendant and others, who were inimically disposed towards him,, falsely implicated him in the case relating to the murder of this father in father's property, that after he was released from jail, he made several demands asking his brothers to effect a partition and render account for the income realised form the join family properties and that as they failed to accede to this request, he was forced to lay action for partition and separate possession of his share.
6. It is the specific case of the defendant that the join family status was disrupted by partition as far lack as in the year 1955 and a memorandum was drawn up evidencing physical partition According to them, the plaintiff, after obtaining his share, sold away an item of that property under an agreement of sale and that he had admitted the partition and sale of an item out of what fell to his share when examined by the Court of Session. Khammam, under Section 342 of the Criminal P. C. and therefore, the actions misconceived and not maintainable.
7. Mr. Suryanarayana relied upon Exs. B-1 and B-5 and contended that they are only memoranda of the partition which was earlier effected by metes and bounds and as such the court below erred in holding that they are inadmissible in evidence for want of registration Ex. B-1 is styled as deed of partition of immovable property entered into an 7th June 1955 by five individuals, viz. the four sons and their father Narayana. the particulars of partition were all detailed in this and the items that were allotted to each one of the sharers were also given out describing the boundaries. there is also a recital t the effect that form thenceforth each individual shall pay the land revenue and other taxes on the share allotted to him. It was signed by all the parties to the partition and there are four witnesses who attested the deed and two of them D. Ws. 4 and 5, have been examined. Ex. B-5 is an instrument of the same date i.e. 7-6-1955, executed by the plaintiff, defendants and their father whereby they settled Ac 4-50 cents of land in favour of one Anasuryamma, sister of the plaintiff and defendants. Ex. B-2 is an agreement of sale dated 28-7-1955 entered into by the plaintiff with his brothers agreeing to seen an item of the property which fell to his share on 7-6-1955. Therefore, it is to as if there was any earlier partition and a memorandum was drawn up on 7-6-1955 as now contended by the learned counsel for the appellants. The recital sin the deed Ex. B-2 make it abundantly clear that Exs. B-1 and B-5 were drawn up on 7-6-1955 allotting shares to each of the sharers on the very date of partition Exs. B-1 and B-5 are documents which require to be compulsorily registered under Section 17(1)(b) of the Registration Act. The effect of non-registration of these documents is that they will not create, declare, assign, limit or extinguish any right, title or interest in or to the immovable property comprised in the documents. In short, these documents are ineffectual to achieve the object or purpose for which they were drawn up. But the fact that these documents are in admissible in evidence will not affect the case of the defendants for the reason that they are not precluded from proving the factum of partition by three evidence. They cannot be looked into only for ascertaining the terms of the partition and tracing the source of the title in the property held by each of the sharers. As pointed out by Subba Rao, J. (as he then was) in Rukmabai v. laxminarayan, : 2SCR253 , doubtless, an unregistered document can effect separation in states.
8. According to Mr. Suryanarayan appearing for the appellants, this is not only a case of separation in status but a case where there was physical partition in June, 1955; and to establish that there was physical partition, he relied upon the evidence of the plaintiff himself and the answers given by him when questioned by the Sessions Judge under Section 342 of the Criminal P. C. The plaintiff, however, tried to wriggle out form the answers given by him in the Court of Session by explaining that he was constrained to made such admission on the advice tendered by his Advocate that, unless he admitted the execution of Exs. B-1, B-2 and B-5, it would be difficult for him to escape capital punishment in that case. It may be pointed out that the defendants do not depend upon the evidence of the plaintiff alone to show that there was physical partition of the lands by metes and bounds. There is the evidence of D. W. 4 one of the attestors, who says that with the help of elders there was physical partition of the properties belonging to the plaintiff and his brother and father and that the was present on that occasion and had also attested the document in question. the lands were also measured by D. W. 6, another witness, as the father and sons had mutually agreed for division by metes and bounds as per the understanding arrived at by them, D. w. 5's evidence further establishes that there was division of the properties by metes and bounds. D. W. 6 who measured the lands, has stated that those division were made after the Telegu New year's Day in that year and that the plaintiff's share was leased out to him. It is not even suggested to any of these witnesses that there was no partition and that the plaintiff did not walk out with his share, accepting the allotment made by the elders. In this connection, it May be noticed that Ex. B-2., the agreement of sale was executed by the plaintiff one month and twenty days after Exs. B-1 and B-5 is that it establishes not only that there was physical partition as pleaded by the appellants but it was also acted upon by the parties the plaintiff himself having agreed to sell his property by entering into an agreement as evidenced by Ex. B-2
9. As pointed out by the Full Bench of this Court in Kanna Reddy v. Venkata Reddy, : AIR1965AP274 (FB) an unregistered document cannot be relied upon to prove the terms of disposition of property embodied in that document and the bar is only to that extent and it will not preclude the party to prove physical partition by other evidence. In this case, Mr. Suryanarayana is not relying upon the terms of deed Ex. B-1 for proof of any allotment of the shares. Reliance is placed only on the oral evidence which bears out in no uncertain terms that there was physical partition of the joint family properties. I, therefore, set aside the findings and the consequent decree made by the Subordinate Judge in this regard and hold that the partition action lid by the plaintiff is not maintainable in vies of the prior partition.
10. Mr. Madhaya Rao next contended that the plaintiff is at least entitled to a share in his father's estate as his father dies on 4th July, 1955 subsequent to the date of Ex. B-1, he partition document. Mr. Suryanarayana contended that he plaintiff has forfeited the right to inherit his father's estate as he was responsible for the murder of his father . Therefore, the question that falls to be considered is whether the plaintiff is disqualified form inheriting the property of his father by virtue of the bar imposed by Section 25 and 27 of the Hindu Succession Act, Section 25 reads:
'A person who commits murder or abets the commission of murder shall be disqualified form inheriting the property of the person murdered, or any other property in frutherance f the succession to which he or she committed or abetted the commission of the murder.'
It may be necessary to refer to the case in which the plaintiff stood charged along with three other accused for the murder of this father Narayana and his paternal uncle under Section 302 read with Secession 34, I. P. C. The Session Judge, Khammam convicted the plaintiff and the other accused in S. C. No. 13 of 1959 under S. 326 read with S. 34, I. P. C. while acquitting them of the charge under Sec. 302 read with S. 34, I. P. C. framed against them. They were also convicted under S. 324 read with S. 34 I. P. c. for causing hurt to some of the witnesses. The plaintiff and another accused were further convicted by the Sessions Judge under S. 392 read with S. 397, I. P. c. fro robbery of a cart load of paddy from Narayana's possession. The State preferred an appeal against the acquittal of the plaintiff ad other accused of the offence of murder and the plaintiff and the other accused preferred appeals against their conviction. Krishna Rao and Kumaryya, JJ. before whom the connected appeals (Crl. Appeals Nos. 654, 689 and 694 of 1959 and 12 of 1960) came up for hearing found having regard to the nature of the injuries inflicted on the two deceased persons, that the only possible conclusion from the evidence on record was that the injuries of both the deceased were sufficient in the ordinary course of nature to cause death, 'although unfortunately the prosecution neglected to directly elicit its fact from P. W. 9, as they ought to have done. An offence of murder was clearly committed in respect of each of the deceased within the meaning of Cl. 3 of Section 300, I. P. C.'
Having found thus, the learned Judges then proceeded to observe:
'Having regard to Cl. 3 of section 300, Indian Penal Code, the learned Sessions Judge was in error in the view he took that for a conviction under Section 302 read with Section 34, I. P.C. the existence of a common intention to beat is insufficient and that a common intention to kill is always necessary. Even if the common intention is merely to beat, if the bodily injury intended to be inflicted by the beating is found to be sufficient to cause death in the ordinary course of nature the mens rea required for liability under Section 302 read with Sec. 34, I. p. C. would be satisfied.'
The learned Judges on appraisal of the evidence found:
'All the accused would therefore, be liable under Section 302 read with Section 34, I. p. c. The benefit of doubt arising form the difference between the evidence of P. Ws. 1 and 2 and that of P. Ws. 3 and 4 must go to the accused, especially as the trial Judge's finding with regard to the events in Lakshminarayana's pasture land implies that P. Ws. 1 and 2 were prone to exaggeration.'
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'As they formed the plan with the object of overpowering the deceased's party and seizing the paddy, the common intention that may be initially attributed to them would be merely at causing hurt to the deceased and their men. If we found ourselves on the evidence of P. Ws. 3 and 4, it would follow that the acts of accused 2 and 4 were in excess of that common intention and accused 2 and 4 alone would be liable under Section 302, I. p. C. for the murder of the 2nd deceased and the 1st deceased (plaintiff's father) respectively, and accused 1 and 2 would be liable only under Section 324 read with Section 34, I. P. c. on the charge against them relating to these murders.'
It is in that view that the plaintiff, who was the 1st accused in that case, was convicted along with another (A-3) under Section 324 read with Section 34, I. p. c. Basing on these findings, it is contended by Mr. Madhavarao for the plaintiff that as the plaintiff was not convicted for the murder of his father, the disqualification prescribed by Section 25 and 27 of the Hindu Succession Act cannot be made applicable to him. In this connection, it may be pertinent to notice that Section 25 only ways that a person who commits murder or abets the commission of murder shall be disqualified form inheriting the property of the person murdered, but not that a person must be convicted of murder or of abetent of murder, to be disqualified form inheriting the property of the person murdered. The principal charge, against the plaintiff and three of his associates, was that all of them, in frutherance of the common intention of all, attack the two deceased and inflicted injures which proved fatal. The learned Judges held that murder was clearly committed within the meaning of Section 300, I. P. c. having regard to the injuries found by the Medical Officer who conducted the autopsies on the two deceased persons. if the learned Judges did not convict the plaintiff and another under Section 302 read with Section 34, I. P. C. it was for the reason that t he was given the benefit of doubt arising from the difference between the evidence of P. Ws. 1 and 2 and that of P. Ws. 3 and 4 as to what he intended initially when the attack was launched on his father and another. It is for that reason that this Court held that the plaintiff and another only intended causing hurt to the deceased and their men and that the other two accused, by reason of their overt acts, rendered themselves liable to punishment under Section 302, I. P. C.
11. In order to apply the disqualification under Section 25 of the Hindu Succession, Act, it is not necessary in may opinion that a person who committed the murder or abetted the commission of murder must also have been convicted of the offence of murder or of abetment of murder under Section 302, Indian Penal Code. That the plaintiff had participated in the murderous attack on his father along with A- 2 and A-4 in that case, who were convicted of murder, is not in dispute. It is because of the nature of injures inflicted by him on his father and the variations found in the version of the direct witnesses that this court found it safe to convict him under Section 324, I. p. C. Section 25 of the Hindu Succession Act does not contemplate punishment for murder not display the murderer from inheriting the property of the murdered. the application of this provision ought not to be approached from the point of view of punishment for murder. This court has held that murder was clearly committed within the meaning of Section 300. I. P. C. The fact that he was given the benefit o doubt arising out of the conflicting versions of two witnesses and convicted under Section 324, I.P. C. does not in any way absolve him from the heinous crime to which he had made his own infamy contribution. Section 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 handed or to be shut behind the prison bars for life, to derive advantage or beneficial interest from the very heinous act committed by him.
12. In Vedanayaga Mudaliar v. Vedammal, 91904) 14 Mad LJ 297, Subrahmania Aiyar and Boddam, JJ. dealing with the question of the right of a murderer to inherit the property of the murdered, expressed themselves thus:
'although there is nothing in any express text of Hindu Law disqualifying a murderer or other person privy to the murder from succeeding to the person who was the victim of murder, the maxim 'Nemo Ex Suo Delicto Meliorem Suam Conditioned Facere Potest' according to which the wrongful act (murder) committed by a person standing in the position of heir disentitles him to any beneficial interest in the inheritance is one of universal application and ought to be followed in British India as a rule of justice, equity and good conscience.'
The Privy Council, in Kenchava v. Girimallappa Channappa, 51 Ind App 368 = (AIR 1924 PC 209) also held that even if the Hindu Law did not disqualify the murderer form succeeding to the estate he was so disqualified upon the principles of justice, equity and good conscience, Statutory effect has been given to the aforesaid view by introducing the two Ss. 25 and 27 in the Hindu Succession Act on grounds of public policy and principles of justice and morality. Therefore, the disqualification's prescribed by Section 25 and 27 come into play and operate against the plaintiff inheriting or deriving any beneficial interest in the property possessed or held by this father. I therefore find no merits in the cross-objections and accordingly dismiss them.
13. In the result, the judgment and preliminary decree passed by the Court below are set aside and the appeal allowed and suit dismissed, with costs.
14. Appeal allowed.