1. Mr. Rangachari raises two preliminary points; but we must overrule them both, He contends that the Munsif had no jurisdiction to try this suit as the plaintiff should have asked for a declaration in respect of all the properties of Pichai Pillai. We think he was not bound to do that. Section 367 of the Code of Civil Procedure, 1882, entitles him to sue for a declaration that he is the legal representative of the plaintiff in the former suit, that is, that he is the legal representative as regards the property claimed in that suit. In any view, the plaintiff cannot be compelled to sue in respect of all the properties of Pichai Pillai. The plaintiff may be in undisputed possession of the bulk of them. The next contention is that the declaration now granted will be infructuous as the District Court in Pichai Pillai's appeal would still have to decide under Order XXII, Rule 5, of the new Code, whether the plaintiff was the legal representative. Assuming this to be so, it does not follow that the decision in this suit would be of no avail. Our decision would probably have the force of res judicata as regards the plaintiff's right to represent Pichai Pillai in the appeal.
2. Passing now to the merits the question is whether the Subordinate Judge's conclusion that the defendant was privy to the murder of her son is legally sustainable. He bases his finding, in paragraph 7, on the defendant's admission, on the evidence of the plaintiff's witnesses Nos. 4 and 9 and on certain other reasons previously set forth. In paragraph 2 of his judgment he seems to base his finding almost exclusively on the defendant's statements Exhibits J, J1, J2, and her evidence as the plaintiff's 10th witness. We have read through the whole of them. We found nothing in them which can even be twisted into any evidence of her guilt. As regards the reasons in paragraph 6 the Subordinate Judge is quite in error in stating that the only conclusion that could be come to was that the defendant must have been privy to the murder or that it was committed in consultation with her. There, of course, remain the statements of the 4th and 9th witnesses for the plaintiff. The statement of the latter that the defendant admitted to him that Chokkalingam stated to her on Friday that he had finished the business, if believed, is capable of the inference that she knew before what the business was. The evidence of the plaintiffs' 4th witness is of very slender probative value. As the bulk of the evidence on which the Subordinate Judge has relied, is either irrelevant or of no probative value, we must send the case down for a fresh finding on the question of fact included in the first issue, namely whether the defendant abetted the murder of her son' on the evidence on record.
2. The finding should be submitted within six weeks from this date, and seven days will be allowed for filing objections.
3. In compliance with the order contained in the above judgment, the Subordinate Judge of Kumbakonam submitted the following
4. This case has been remanded by the High Court for a fresh finding on the question of fact included in the first issue, viz:
5. 'Whether the defendant abetted the murder of her son,' on the evidence already on record.
2. My predecessor who heard the appeal from the Court of first instance answered the question in the affirmative and in the order of remand which is to hand the basis of his finding has been discussed and it would appear that the same has not been approved of.
3. The burden of proving the question certainly lies on the plaintiffs, and according to the ruling in Vedammal v. Vedanaya Mudaliar 31 MP. 100 : 18 M.L.J. 70 : 2 M.L.T. 533 it has to be made out by clear and positive evidence. There is no evidence whatever of a positive character to connect the defendant with the crime itself or with any of the events preparatory to the commission thereof. As has been pointed out in the case above quoted, (see page 102), it is not safe to draw inferences from circumstantial evidence or from the defendant's conduct. All that the evidence establishes in this case is that the defendant did not prove herself to be as much emotional as she should have been on being apprised of the foul murder and herself being accused of it, nor when she came in direct contract with the murderer himself. Her admissions contained in the statements marked Exhibits J series as well as in her own evidence as plaintiffs' 10th witness do not amount to making out anything further than this; and her conduct above referred to, however reprehensible it may be in a moral point of view, can be explained by the fact that she was only an adoptive mother who had a good motive for repenting of the adoption. In paragraph 6 of the judgment of this Court the circumstance that one of the choppers that were used for the murder was admitted to belong to defendant, was taken to be a strong circumstance proving defendant's guilt, but considering that Chockalinga had absolute access to everything in the house, without evidence that defendant was aware of his having taken away the same and of the purpose for which he took it, no inference can be drawn adversely to the defendant. As for the oral evidence of the plaintiffs' 4th and 9th witnesses, I agree with the District Munsif in the reasons given by him in paragraph 12 of his judgment that the statement of the 4th witness regarding the exasperated feeling alleged to have been exhibited by the defendant on her being informed that the deceased pointed out Chockalinga to the process-server, is an improvement over his previous statement upon which no reliance can be placed.
4. The evidence of the 9th witness, Station House Officer, has been dealt with at length by the District Munsif in paragraph 17 of his judgment. From this it is clear that the chief reason for his not implicating the defendant in the murder case was that he came to the conclusion upon inquiry, that Chockalinga and Natesa were the only persons concerned in the crime and that he could find no evidence regarding defendant's complicity in the matter. Assuming the evidence of this witness to be true in its entirety, there is nothing therein to show any confession of guilt by the defendant in the statements made by her to the witness. I, therefore, consider that the evidence of these two persons is quite insufficient to make out her guilt.
5. The remaining oral evidence intended to fasten the guilt around the defendant, consists of the statements of persons who were assembled on the tank side when the corpse of Pichai Pillai was found floating in the tank, among whom it is alleged that the defendant was pointed out as one of the murderers, and that she kept perfectly unmoved. Defendant's intimacy with Chockalinga is also proved by the said witnesses but it is irrelevant to the point now under consideration. The whisper between defendant and Chockalinga and Natesa which is spoken to by plaintiffs' 5th witness and has not been deciphered is of no probative value.
6 Lastly, the circumstance that Chockalinga wrote the letter, Exhibit K, to the defendant while he was in jail after condemnation expressing his desire to see her and his own wife was urged as raising a strong inference that she ought to have been a party to the murder. No doubt, the defendant admits having complied with the request. But it can amount to nothing more than showing sympathy to a relation and a quondam paramour in his last hour. Although the circumstance may raise a strong suspicion that her sympathy was due to the fact that Chockalinga was sacrificing his life for her, it is quite inconclusive to show that the offence itself was committed at her instigation.
7. For these reasons, I am disposed to record a finding in the negative on the question remanded.
6. This second appeal coming on for final hearing after the return of the finding of the lower Appellate Court, the Court delivered the following.
7. We accept the finding of the Subordinate Judge. The Subordinate Judge's decree will be set aside and that of the District Munsif restored with costs in this and in the lower Appellate Court.