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Smt. Mohinder Kaur and ors. Vs. Wassan Singh Kundan Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtPunjab and Haryana High Court
Decided On
Case NumberSecond Appeal No. 1078 of 1964
Judge
Reported inAIR1968P& H389
ActsHindu Law; Hindu Succession Act, 1958 - Sections 25 and 27
AppellantSmt. Mohinder Kaur and ors.
RespondentWassan Singh Kundan Singh and ors.
Appellant Advocate H.L. Sibal, Senior Adv. and; R.C. Setia, Adv.
Respondent Advocate N.L. Dhingra and; Santosh Kumar Aggarwal, Advs.
DispositionAppeal dismissed
Excerpt:
.....[as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - deceased, was of witnesses from different places and witnesses were found not reliable by the trial court, as also by the first appellate court, and so also by my learned brother, narula..........that the will. exhibit p-4, was the genuine will of kundan singh. deceased, and that as one of his sons, gurdial singh, had murdered him, he could not inherit under the will so that the whole of the property to which the will relates passes to his surviving son, wassan singh, plaintiff, as the female heirs such as daughters and widow have been expressly excluded from inheritance by the terms of the testator's will. the claim of the wife of gurdial singh, murderer, was also denied.4. the second appeal has been filed against the decree of the first appellate court by the widow and two daughters of the testator and the wife of gurdial singh. deceased, who was hanged for murdering his father kundan singh, deceased. in the memorandum of appeal there is a misdescription of mohindar kaur, widow.....
Judgment:

Mehar Singh, C.J.

1. The litigation between the parties, out of which this second appeal has arisen, concerns the inheritance of Kundan Singh, deceased. On April 13, 1957, he executed a will, Ex. P-4, of his property, movable and immovable, in favour of his two sons Wassan Singh, plaintiff, and Gurdial Singh, deceased. The will was scribed by Jaswant Singh and attested by two panchas of the village, namely, Ujagar Singh and Dayal Singh. The evidence of these witnesses, which is not open to any criticism whatsoever, has been that the testator was in a disposing mind, when the will was read over to him he understood it, and, while he thumb-marked the will in their presence, they signed it in his presence. The genuineness of the thumb-mark on the will has never been questioned by anybody during the whole of the proceedings. The evidence or the witnesses led by the contesting defendants, who in the trial Court were the two daughters and widow of Kundan Singh. deceased, was of witnesses from different places and witnesses were found not reliable by the trial Court, as also by the first appellate Court, and so also by my learned brother, Narula J., when he heard this second appeal in the beginning The two Courts below have held the will to have been duly proved and genuine. A few suspicions circumstances of no substance were referred to before those Courts but were found bv the same not in the least derogating from the veracity of the testimony of the scribe and the two attesting witnesses of the will and from the genuineness of the will. My learned brother has agreed in his order of reference with such an appraisal of the testimony on the record. So the will of Kundan Singh, deceased, has been duly proved and its genuineness has also been proved. It is in the wake of this that next to no argument has been urged at the hearing of this second appeal on this aspect of the matter. In other words, the due execution of the will and its genuineness has not been a matter of controversy at the hearing of this appeal before this Bench.

2. In the will Kundan Singh, deceased, recited that he had two sons, two daughters, and his wife. He then said that he had incurred expenses in connection with the marriages of his daughters and had already given them sufficient amount of property. Then he said that he had given property in the shape of cash and ornaments and the like to his wife. However, because of the new law of succession obviously referring to the Hindu Succession Act, 1956 (Act 30 of 1956), which came into force on June 17, 1956, he said, his daughters and wife might start litigation with his sons in regard to his inheritance, so he proceeded to bequeath the whole of his movable and immov-able property to his two sons. The Courts below nave taken that he did so in fifty fifty shares, and though, if both of his sons were alive and claiming under this will, that might be the effect but no such thing is stated in the will itself. All that is said in the will is that the testator was bequeathing his movable and Immovable property to his two sons and he has taken particular care to repeat at the end of the will that he was excluding his daughters and wife from any share of his property after his death.

3. The testator's second son, Gurdial Singh, murdered him on May 24, 1962, some five years after the execution of the will. When the suit giving rise to this second appeal was instituted by his son, Wassan Singh, plaintiff, to obtain declaration that under the will, Exhibit P-4, he alone was entitled to the whole of the inheritance left by his deceased father, Gurdial Singh was under trial. But he had been convicted by the time there was an appeal in the first appellate Court, after the trial Court had decreed the suit of Wassan Singh, plaintiff, by the two daughters and widow of the testator. In that appeal Gurdial Singh the second son of the testator, was shown as a party respondent. The death sentence passed on Gurdial Singh by the Sessions Court was confirmed in the High Court and consequently Gurdial Singh was hanged before the decision of the first appeal by the daughters and the widow of the testator. So Gurdial Singh's widow Mohindar Kaur was impleaded as is legal representative in the first appeal. The learned Judge in the first appeal affirmed the decree of the trial Court and hence. dismissed the appeal. The two Courts below proceeded on the basis that the will. Exhibit P-4, was the genuine will of Kundan Singh. deceased, and that as one of his sons, Gurdial Singh, had murdered him, he could not inherit under the will so that the whole of the property to which the will relates passes to his surviving son, Wassan Singh, plaintiff, as the female heirs such as daughters and widow have been expressly excluded from inheritance by the terms of the testator's will. The claim of the wife of Gurdial Singh, murderer, was also denied.

4. The second appeal has been filed against the decree of the first appellate Court by the widow and two daughters of the testator and the wife of Gurdial Singh. deceased, who was hanged for murdering his father Kundan Singh, deceased. In the memorandum of appeal there is a misdescription of Mohindar Kaur, widow of Gurdial Singh, deceased but on that account the argument of the learned counsel for Wassan Singh, plaintiff, cannot be accepted that there is either no appeal on the side of Mohindar Kaur, widow of Gurdial Singh, deceased, or that her case anyhow cannot be considered.

5. This second appeal first came for hearing before my learned brother Narula J., when the counsel appearing for the defendants-appellants urged that in view of Section 27 of Act 30 of 1956, the widow of Gurdial Singh, deceased son of the testator, who had murdered the testator, was not debarred from inheriting to the testator because, according to that section, it is the murderer alone who is disqualified from inheritance which is to devolve as if such person had died before the intestate, in this case Kundan Singh, deceased. The learned counsel for Wassan Singh, plaintiff, then referred to the commentary under the very section in Mulla's Hindu Law, Thirteenth Edition, at P. 865, which reads; 'The effect of the rule lid down in this section is that no title or right to succeed can be traced by any person through one who is disqualified from inheriting any property under the provisions of Sections 24 to 26. The section does not affect the rights of those who cannot be said to claim through the disqualified person.' And it was contended that the widow of a predeceased son in the circumstances as of the present case, because of her husband having murdered his father, could not inherit, through her husband, to her deceased father-in-law. It was in these approaches on both sides that my learned brother referred this case to a larger Bench, and this is how it has come for hearing before this Bench.

6. The will of Kundan Singh. deceased, having been duly proved, half of his movable and immovable property goes by testamentary succession to Wassan Singh, plaintiff. The question is whether the rest of the half of his movable and immovable property is to devolve in the terms of his will or in intestacy? This obviously enough depends upon the intention expressed by Kundan Singh, deceased, in his will with regard to his property and the expression given by him to that intention in the same. In Halsburys Laws of England, Vol. 39, Third Edition, paragraph 1315, at page 869, it is stated:

'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 man-slaughter of the testator cannot take any benefit under his will. The property goes to the other persons entitled under the will, if it is a gift to a class, or, if the exclusion of the donee effects an intestacy as to the property in question, to the persons, other than the donee, entitled on intestacy, and not to the Crown as bona vacantia, save in so far as the Crown may be entitled under the intestacy provisions in the ordinary way.'

This statement of law has met the approval of their Lordships of the Privy Council in Ken-chaya v. Girimallappa Channappa, 51 Ind App 868, at p. 373 = (AIR 1924 PC 209 at p. 211). The question whether in the present case the remaining half of the property bequeathed by the testator has to devolve in the terms of the will or on intestacy thus depends upon whether the bequest is to the sons as a class, in which case the whole of the property will pass to the surviving son Wassan Singh, plaintiff. The learned counsel for the defendants-appellants contends that the testator left his property to his two sons in equal shares and, therefore, only the half share left to Wassan Singh, plaintiff, passes to him under the will of the testator and there is an intestacy with regard to the remaining half share of the murderer, the lecond son, Gurdial Singh, deceased. On the other hand, what is urged on the side of Wassan Singh, plaintiff, is mat the will of the testator has left his property (a) to his two sons without saying that each was to have half, though that might have been the ultimate effect if nothing else had intervened, and (b) specifically and in so many words excluding his two daughters and widow from inheriting to him. The learned counsel contends that it follows that the testator left his property to his two sons as sons and as a class, at the same time excluding female heirs from inheriting him under his will. He named such of the female heirs who were then available and known to him, but when he said that because of the provisions of Act 30 of 1956 he was making the will in favour of his sons, he left no manner of doubt that he was expressly excluding female heirs recognized by that Act. This includes the case of the widow of Gurdial Singh, deceased, the second son, who murdered the testator. The contention on the side of Wassan Singh, plaintiff, is sound and consistent with the terms and conditions of the will of the testator, who left the whole of his property to his two sons without defining any shares, and at the same time excluding the then known and present female heirs who could possibly have made a claim to his inheritance, after his death, in view of the provisions of Act 30 of 1956. He has said specifically in the will that because of the new law of succession and to avoid litigation about his inheritance after his death in the wake of such law he was bequeathing the whole of his property to his two sons excluding his two daughters and his widow. The intention of the testator in this case is clear beyond any possible mistake that he left the whole of his property to his two sons as a class. He excluded all the female heirs recognized under the new mccession law from Inheriting him. He named such of the heirs as were then known to him and left no manner of doubt that he excluded any other heir who might raise any dispute about succession to him in the wake of the new law, referring to Act 30 of 1956. In this approach, there is no intestacy in regard to the half of the property bequeathed by the testator to his second son, Gurdial Singh, who murdered him, and in the terms of the will and according to the intention of the testator the whole of his property under his will passes to his surviving son Wassan Singh, plaintiff.

7. In the circumstances, the question of consideration of the effect of Section 27 of Act 30 of 1956 does not really arise because there is no question of intestacy in this case with regard to the remaining half of the property bequeathed by the testator, but if there was such a question, I should have been inclined to say that Section 27 is in the form of a declaratory enactment of the rule of Hindu Law in regard to personal disqualification of the murderer from inheriting to the estate of the person whom he has murdered. To that, a rule has been grafted on the principle of justice, equity and good conscience that no title to the estate of the person murdered can be claimed through the murderer. He should be treated as non-existent when the succession opens on the death of his victim; he cannot be regarded as a fresh stock of descent: See para 99, at p. 154 of Mulla's Hindu Law, Thirteenth Edition, and the observations of their Lordships of the Privy Council in Kenchava's case. I should have been inclined to the view that Section 27 has not made any change in that rule of justice, equity and good conscience. On a different view, the rule of justice equity and good conscience will apply to wills by non-Hindus, but not to Hindus, a distinct treatment which could hardly have been intended by the Legislature.

8. In the result, the second appeal of the defendants-appellants is dismissed, but, in the circumstances of the case, there is no order in regard to costs.

Narula, J.

9. I agree.


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