TMI Blog2005 (5) TMI 696X X X X Extracts X X X X X X X X Extracts X X X X ..... separately. It is alleged that the first defendant in the suit married the plaintiff- appellant and both were residing as husband and wife. On 10th October, 1972 the first defendant murdered his father, Ramasami Konar and was convicted under Section 302 IPC for life imprisonment. The conviction of the first defendant was confirmed by the High Court but the High Court recommended the Government to reduce the sentence to the period already undergone. The first defendant was released in July, 1975. Since the first defendant murdered his father, he was not entitled to succeed to the estate of his deceased father and as such the claim of the plaintiff was that she alone was entitled to all the properties left by the deceased Ramasami Konar. According to the plaintiff, the first defendant must be deemed to have predeceased as provided under Section 25 read with Section 27 of the Hindu Succession Act. She claimed to be the widow of the first defendant and claimed to be the owner of all the properties left by Ramasami Konar as coparcener. After the release of the first defendant from the prison, first defendant lived with the plaintiff for some time but after some time she was driven out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Section 8 of the Hindu Succession Act. 8. It was not disputed that the properties of the Ramasami Konar were joint family properties in which the defendant No. 1 was also one of the member and the parties are governed by the Mitakshara School of Hindu Law. 9. The learned Single Judge of the High Court after hearing the parties and considering the relevant law on the subject in detail, came to the conclusion that the view taken by both the Courts below cannot be sustained. It was held by the learned Single Judge that plaintiff cannot claim as a widow of the son of Ramasamy Konar. It was observed that plaintiff cannot claim one half share in the property being coparcenary property under Proviso to Section 6 of the Hindu Succession Act . It was also observed that she is entitled to half share so long as the deceased father and son had not partitioned the property. The first defendant/ respondent No 1 herein cannot be said to have inherited any share from the victim (Ramasamy Konar) and the Plaintiff can claim as a widow only if there is a succession to the estate of the victim. If there is no succession, the deeming provision that the first defendant shall be deemed to have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship. Explanation 1.- For the purposes of this section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.. Explanation 2.- Nothing contained in ;the proviso to this section shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased of any of his heirs to claim on intestacy a share in the interest referred to therein. Section 8.- General rules of succession in the case of males.- The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter :- (a) firstly, upon the heirs, being the relatives specified in class I of the Schedule; (b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule; (c) thirdly, if there is no heir of any of the two classes, then upon the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... family. This is the view which has been accepted by all the Authors of the Hindu Law. The famous principles of Mulla , 15th Edition (1982) at pages 284 and 285, the learned Author has stated thus: The essence of a coparcenary under the Mitakshara Law is unity of ownership. The ownership of the coparcenary property is in the whole body of coparceners. According to the true notion of an undivided family governed by the Mitakshara Law, no individual members of that family, whilst it remains un-divided, can predicate, of the joint and undivided property, that he that particular member, has a definite share, one third or one-fourth. His interest is a fluctuating interest, capable or being enlarged by deaths in the family, and liable to be diminished by births in the family. It is only on a partition that he becomes entitled to a definite share. The most appropriate term to describe the interest of coparcener in coparcenary property is undivided coparcenary interest . The nature and extent of that interest is defined in Section 235. The rights of each coparcener until a partition takes place consist in a common possession and common enjoyment of the coparcenary property. As observe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of alienation, (7) Right to accounts and (8) Right to make self-acquisition . While dealing with Right by birth' learned Author says thus:- Every coparcener gets an interest by birth in the coparcenary property. This right by birth relates back to the date of conception. This, however, must not be held to negative the position that coparcenary property may itself come into existence after the birth of the coparcener concerned . While dealing with Right of survivorship, it is said thus:- The system of a joint family with its incident of succession by survivorship is a peculiarity of the Hindu Law. In such a family no member has any definite share and his death of somehow ceasing to be a member of the family causes no change in the joint status of the family. Where a coparcener dies without male issue his interest in the joint family property passes to the other coparceners by survivorship and not be succession to his own heir. Even where a coparcener becomes afflicted with Lunacy subsequent to his birth, he does not lose his status as a coparcener which he has acquired by his birth, and although his lunacy may under the Hindu Law disqualify him from demanding a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ady mentioned above, is that of a joint family property wherein all the members of the coparceners share equally. In this connection a reference may be made to a decision of this Court in the case of State of Maharashtra v. Narayan Rao Sham Rao Deshmukh and Ors. [1987]163ITR31(SC) in which Their Lordships have held as follows: A Hindu coparcenary is however, a narrower body than the joint family. Only males who acquire by birth an interest in the joint or coparcenary property can be members of the coparcenary or coparceners. A male member of a joint family and his sons, grandsons and great grandsons constitute a coparcenary. A coparcener acquires right in the coparcenary property by birth but his right can be definitely ascertained only when a partition takes place. When the family is joint, the extent of the share of a coparcener cannot be definitely predicated since it is always capable of fluctuating. Therefore, in view of various decisions of this Court it appears that Defendant No. 1 and the plaintiff who was married to Defendant No. 1 were members of joint Hindu family. If the defendant- appellant had not incurred the disqualification, then they would have inherited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he murdered man but that was not because the wife deduced title through her husband, but because of the principle of Hindu family law that a wife becomes a member of her husband's gotra, an actual relation of her husband's relations in her own right, as it is called in Hindu law a gotraja-sapinda. The decision therefore has no bearing on the present case. Therefore, the principle which has been enunciated by their Lordships is in no uncertain terms totally disinherit the son who has murdered his father. Their Lordships have observed as follows: 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. 21. This Privy Council decision made reference to the decisions of the High Courts of Madras and Bombay and their Lordships have approved the ratio contained in those decisions that a murderer should be totally disinherited because of the felony committed by him. This decision of the Privy Council was subsequently followed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 27 is that the respondent No. 1 cannot inherit any property of his father as he has murdered him on the principle of justice, equity and good conscience and the fresh stock of his line of descent ceased to exist in that case. Once the son is totally disinherited then his whole stock stands disinherited i.e. wife or son. The defendant-respondent No. 1 son himself is totally disqualified by virtue of Sections 25 and 27 of the Hindu Succession Act and as such the wife can have no better claim in the property of the deceased, Ramasamy Konar. 25. Therefore, as a result of our above discussion, we are of opinion that the view taken by the learned Single Judge of the High Court of Madras is correct that the plaintiff is not entitled to inherit the estate of the deceased, Ramasamy Konar and the learned Single Judge has rightly set aside the orders of the two courts below. Since we cannot decide this appeal without deciding the right of the respondent No. 1 as the right of the appellant flows therefrom as his wife i.e. the plaintiff. Therefore, it was necessary for us to first decide whether the respondent No. 1 could succeed or inherit the estate of his deceased father. When son ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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