1. The following pedigree table is helpful in understanding the controversy in dispute:
Chhajju|------------------------------------------------| |Diwan Ram Dayal(Died issuless) Gulab|-------------------------------------------------------------| | | Ude Ram Daya Ram Attru(Mst. Pali Widow) (Died || Issueless) |Chambeli Nathu(Pichhlag Daughter |of Mst. Pali) |-------------------------------------| |Balwant Banta aliasPlff. Gulzar Plff.
(2) Ude Ram son of Gulab was the last male-holder of the property in suit. On his death Shrimati Pali his widow was murdered by Nathu father of Balwant Singh alias Chanda Singh and Banta alias Gulzar. Banta is still said to be a minor. Nathu was tried for the murder of Shrimati Pali and sentenced to death, which sentence was duly executed. On Pali's death, mutation with respect to the land in question was sanctioned in favour of Shrimati Chambeli as the daughter of Ude Ram. Balwant Singh and Banta Singh who were both minors at that time instituted a suit through Mihan Singh, their father's sister's husband as next friend on the plea that the suit land being ancestral and Chambeli not being the daughter of Ude Ram but being the daughter of Shrimati Pali from her Previous husband, the plaintiffs were entitled to possession of the land in question.
This suit was controverted by Shrimati Chambeli who claimed to be the daughter of Ude Ram. This suit was dismissed by the Court on 19th June, 1947; an appeal taken to the District Judge and a further appeal to the High Court met not better fate, the second appeal in the High Court having been dismissed in limine on 15th April, 1958.
(3) The present suit has been brought by the same plaintiffs in February, 1955, for possession of the same land in suit alleging that the previous suit was dismissed on account of negligence of their next friend who was in collusion with Shrimati Chambeli. Mihan Singh the next friend in the previous litigation was impleaded as defendant No. 2. who admitted the plaintiffs' allegations both the Courts below have dismissed the suit holding that there was no Material on the present record which would justify the finding that the previous suit was dismissed on account of gross negligence of their next friend so that the plaintiffs could ignore it. As a matter of fact, the trial Court came to the express conclusion that defendant No. 2 had not acted negligently in that litigation.
(4) On second appeal Shri Mittal has tried to assail the conclusions of the two Courts below and has contended that it is amply established on the record that defendant No. 2 had acted in a grossly negligent manner in conducting the previous litigation, I; however, do not find it possible to uphold this contention. My attention has not been drawn to any material on the present record which would justify the conclusion that the next friend of the minor plaintiffs in the previous litigation was in any manner guilty of such negligent conduct as would entitle the present plaintiffs to avoid the legal consequences of the decision in the previous litigation. I would, therefore, repel this contention.
(5) But this apart, it is also doubtful if it is open to the plaintiffs to claim a right to the property left by Ude Ram, through their father Nathu, who actually murdered Shrimati Pali. The learned counsel has very frankly drawn my attention to two decisions of the Lahore High Court which go against him. In Harbhagwan v. Hukam Singh, AIR 1922 Lah 243, a Division Bench of that Court observed that:
'It is compatible with justice, equity and good conscience that the exclusion of a murderer from the inheritance of the man whom he had murdered must be taken to include his direct lineal descendants. Therefore, as the plaintiffs' father had murdered his brother with the sole object of securing his property, they are excluded from inheriting the property of their deceased uncle as their succession is opposed to public policy...........'
According to this decision, exclusion of the murderer is based on public policy and justice and not on principles of personal or customary law and it is from this stand point rather than that of personal or customary law of the parties that the question is to be approached.
In Mt. Jind Kaur v. Indar Singh, AIR 1922 Lah 293, it was again laid down by a Division Bench that:
'where a person has been murdered with the sole object of securing his property, the murderer along with his son is excluded from inheriting the property of the deceased, in spite of the fact that the property is ancestral property as their succession, would be opposed to public policy. The murderer's right in such a case is swept away and with it is carried away the right of every one who claims through, and not merely from him. In such a case the vesting of the succession is not prevented but what was vested in accordance with the law is wrested away on the grounds of justice and equity.........'
The counsel has, however, contended that the ratio of these two decisions would not apply to the case in hand because the plaintiffs are claiming their right through their common ancestor and not through their father Nathu. In support of this contention, reference has been made to Kenchawa Sanyellappa v. Girimallappa Channappa, AIR 1924 PC 209, headnote (a) of which reads as follows:
'(a)....... A murderer 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; the exclusion extends to the legal as well as beneficial estate, so that neither he can himself succeed nor can the succession be claimed through him.'
In my opinion, this decision of the Privy Council does not lay down any rule different from the one which was laid down by the Division Bench of the Lahore High Court in Mt. Jind Kaur's case, AIR 1922 Lah 293. Therefore, I would prefer to base my conclusion in the present case on the ground that the two Courts below have found against any gross negligence on the part of the next friend and that this finding has not been successfully assailed on second appeal.
(6) For the reasons given above this appeal fails and is hereby dismissed with costs.
(7) Appeal dismissed.