Contents

1. 1 J U D G M E N T 

Can a woman, who causes the death of her husband in delirium, and stands found 'not guilty' by a competent criminal court by applying Section 84 of the General exceptions in the Indian Penal Code, be styled as a 'murderer' within the meaning of Section 25 of the Hindu Succession Act, 1956 (hereinafter referred to as 'the Act')? Can she be disqualified from inheriting the estate of her deceased husband?

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IN THE HIGH COURT OF KERALA AT ERNAKULAM 

PRESENT: THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE B.KEMAL PASHA 

WEDNESDAY, THE 5TH DAY OF FEBRUARY 2014/16TH MAGHA, 1935 

RFA.No. 888 of 2012 (I) 

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AGAINST THE ORDER/JUDGMENT IN OS 125/2008 of PRINCIPAL SUB COURT,ATTINGAL DATED 28-06-2012 

APPELLANT(S)/DEFFENDANTS : 

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1. JYOTHISH KUMAR SON OF LATE BHASKARAN, JYOTHISH BHAVAN,KUNNUMMEL PAZHAYAKUNNUMMEL VILLAGE, KILIMANOOR.

2. VINOD SON OF LATE BHASKARAN, JYOTHIS BHAVAN, KUNNUMMEL PAZHAYAKUNNUMMEL VILLAGE, KILIMANOOR.

3. MRS.PADMINI WIFE OF LATE BHASKARAN, JYOTHISH BHAVAN, KUNNUMMEL PAZHAYAKUNNUMMEL VILLAGE, KILIMANOOR. 

BY ADVS.SRI.K.RAMAKUMAR (SR.) SRI.S.M.PRASANTH SMT.SMITHA GEORGE 

RESPONDENT(S)/PLAINTIFF: 

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B.CHITHRA D/O.LATE BHASKARAN, GEETHA BHAVAN,MULLARAMCODU VADASSERIKONAM P.O. OTTOOR VILLAGE THIRUVANANTHAPURAM 695143. 

R1 BY ADV. SRI.G.S.REGHUNATH 

THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 21-01-2014, THE COURT ON 05.02.2014, DELIVERED THE FOLLOWING: 

[CR] 

T.R.RAMACHANDRAN NAIR & B.KEMAL PASHA, JJ. 

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R.F.A. No. 888 OF 2012 

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Dated this the 5th day of February, 2014 

J U D G M E N T 

Kemal Pasha, J. 

Can a woman, who causes the death of her husband in delirium, and stands found 'not guilty' by a competent criminal court by applying Section 84 of the General exceptions in the Indian Penal Code, be styled as a 'murderer' within the meaning of Section 25 of the Hindu Succession Act, 1956 (hereinafter referred to as 'the Act')? Can she be disqualified from inheriting the estate of her deceased husband? These are the short questions arise for consideration in this Regular First Appeal.

2. Appellants are challenging preliminary judgment and decree dated 28.06.2012 in O.S.No.125/2008 passed by the Subordinate Judge's Court, Attingal, whereby plaint A schedule item Nos.1 to 5 are ordered to be partitioned into three equal shares and to allot one such share to the plaintiff, who is the respondent herein.

3. Appellants 1 and 2 and the respondent are the children born to the 3rd appellant in her wedlock with late Bhaskaran. The suit for partition was filed by the respondent herein as plaintiff alleging that Bhaskaran was murdered by the 3rd appellant on 24.10.2007 and thereby, the 3rd appellant is disqualified under Section 25 of the Hindu Succession Act, 1956 from inheriting the properties of Bhaskaran. Appellants 1 and 2 contended that their mother Padmini, who is the 3rd appellant herein, has been suffering from mental illness and it was under that circumstance and due to her mental illness, she happened to cause the death of her husband Bhaskaran and, therefore, she was not disqualified under Section 25 of the Act.

4. Heard Sri.K.Ramakumar, learned counsel for the appellants and Sri.G.S.Raghunath, learned counsel for the respondent. The present dispute is confined to the quantum of share that can be allotted to the respondent. If the 3rd appellant is disqualified under Sections 25 and 27 of the Act, the share that can be allotted to the respondent will be 1/3 in the plaint 'A' schedule item Nos.1 to 5. If the 3rd appellant is not disqualified so, then, the share of the respondent will only be < in the said properties.

5. According to the learned counsel for the respondent, the 3rd appellant being the 'murderer' of Bhaskaran, is disqualified under Section 25 of the Act, from inheriting the properties of deceased Bhaskaran. Section 25 of the Hindu Succession Act, 1956 states: Murderer Disqualified:- A person who commits murder or abets the commission of murder shall be disqualified from inheriting the property of the person murdered, or any other property in furtherance of the succession to which he or she committed or abetted the commission of the murder. Section 27 states: Succession when heir disqualified:- If any person is disqualified from inheriting any property under this Act, it shall devolve as if such person had died before the intestate. Section 25 has the effect of laying down that a person who commits murder or abets the commission of murder is disqualified from inheriting (1) the property of the person murdered; and (2) any other property he may become entitled to succeed by reason of furtherance of succession resulting from the murder. Therefore, the disqualification, it will be noticed, is not general but confined to certain property.

6. In fact, prior to the amendment of the Hindu Succession Act, Sections like 25 and 27 were not there; but the murderer of his own father was disqualified on the principles of justice, equity and good conscience and as a measure of public policy. This position of law was enunciated by the Privy Council way back in 1924, in the case of Kenchava Kom Sanyellappa Hosmani v. Girimallappa Channappa Samasagar [AIR 1924 PC 209] wherein it was held: 

"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." 

7. In Kenchava [supra], their Lordships approved the ratio contained in Vedanayaga Mudaliar v. Vedammal [1914 MLJ 297] that a murderer should be totally disinherited because of the felony committed by him, and it was held that statutes regulating heirship or descent, giving force to will should be read as not intended to affect paramount questions of public policy or depart from well settled principles of jurisprudence. It was held that: 

(1) a murderer is disqualified from inheriting any interest in the property of the person murdered; and 

(2) that the murderer in such a case should be treated as non-existent and not as one who forms the stock for a fresh line of descent.

8. In Vallikannu v. R. Singaperumal and another [(2005) 6 SCC 622], it was held that the aforesaid proposition of law enunciated by the Privy Council was incorporated by way of Section 25 of the Hindu Succession Act, 1956 as quoted above, which clearly enunciates that a person who commits murder or abets the commission of murder shall be disqualified from inheriting the property of the person murdered, or any other property in furtherance of the succession to which he or she committed or abetted the commission of the murder. The objects and reasons also makes a reference to the Privy Council judgment Kenchava [supra]. The objects and reasons for enacting Section 25 is that, 

"A murderer, even if not disqualified under Hindu law from succeeding to the estate of the person whom he has murdered, is so disqualified upon principles of justice, equity and good conscience. The murderer is not to be regarded as the stock of a fresh line of descent but should be regarded as non-existent when the succession opens." 

9. In paragraph 18 of Vallikannu v. R. Singaperumal (supra), it was held: 

"Therefore, once it is held that a person has murdered his father or a person from whom he wants to inherit, he stands totally disqualified. Section 27 of the Hindu Succession Act makes it further clear that if any person is disqualified from inheriting any property under this Act, it shall be deemed as if such person had died before the intestate. That shows that a person who has murdered a person through whom he wants to inherit the property stands disqualified on that account. That means he will be deemed to have predeceased him. The effect of Section 25 read with Section 27 of the Hindu Succession Act, 1956 is that a murderer is totally disqualified to succeed to the estate of the deceased. The framers of the Act in the objects and reasons have made a reference to the decision of the Privy Council that the murderer is not to be regarded as the stock of a afresh line of descent but should be regarded as non- existent. That means that a person who is guilty of committing the murder cannot be treated to have any relationship whatsoever with the deceased's estate." 

Therefore, it is evident that in Section 25, which has to be read with Section 27, the legislature has given statutory effect to the rule laid down in the Privy Council's decision in Kenchava [AIR 1924 PC 209] supra, by adopting the principle of public policy underlying that decision.

10. There are divergent views expressed by various High Courts regarding the influence of the outcome of the prosecution against such murderer to the application of Section 25. Sarita Chauwhan v. Chetan Chauwhan [AIR 2007 Bombay 133] was a case wherein a widow was prosecuted for murder of her husband and was acquitted by the Sessions Court. It was held that in view of the clear acquittal, it cannot be said that the widow is a person, who has committed the murder of the deceased. It was further held that since a judgment of clear acquittal was passed in favour of the widow who was the accused, by no stretch of imagination it can be said that she has committed the murder of the deceased and therefore, she would not be disqualified under the provisions of S.25 of the Hindu Succession Act from succeeding to the estate of her deceased husband.

11. In Smt. Janak Rani Chadha v. State (NCT of Delhi) & Anr. [AIR 2007 Delhi 107] in a case wherein the husband caused the death of his wife and was convicted under Section 302 IPC for murder and in appeal his conviction was converted from Section 302 IPC to 304 IPC Part I, it was held , "There is no dispute that in view of Section 25 of the Hindu Succession Act the husband is not entitled to claim inheritance to the property of his deceased wife. The said section has been incorporated in the Act on the maxim "Nemo Ex Suo Delicto Meliorem Suam Conditionem facere Potest". It is based on the principles of justice, equity and good conscience to make it impossible for a murderer who deserves to be hanged or to be shut behind the prison bars for life, to derive advantage or beneficial interest from the very heinous act committed by him. This has been so stated in the case Nannepuneni Seetharamaiah and others v. Nannepuneni Ramakrishnaiah reported in AIR 1970 Andhra Pradesh 407. I am in complete agreement with what has been held in the said judgment." 

12. In Seetharamaiah v. Ramakrishnaiah [AIR 1970 AP 407], the view taken is that it is not necessary for the application of Section 25 that the person disqualified should have been convicted of murder or abetment of murder. It was held therein that disqualification will apply if it is established in any subsequent proceeding that the person to be disqualified had committed or abetted the murder.

13. In Chaman Lal v. Mohan Lall [AIR 1977 Del 97], the view taken is that it stands to reason that a person prosecuted for murder but acquitted of the charge would not be disqualified and that the civil court as a rule would not hold a fresh inquiry in such a case.

14. In G.S. Sadashiva v. M.C. Srinivasan [AIR 2001 Kant 453], the view taken is that the grant of a share in the property of the deceased to a person is proper when there is a finding rendered by a criminal court that such person is not the murderer of the deceased.

15. Learned counsel for the respondent has argued that Ext.B5 judgment by which the 3rd appellant was found not guilty by the Additional Sessions Court in S.C. No.924/2009, is of no consequence in deciding the question of disqualification or otherwise, under Section 25 of the Act. The learned counsel for the respondent has argued that the finding of not guilty entered by the criminal court, cannot be relied on to find that there is a valid declaration that the 3rd appellant is not a 'murderer' within the meaning of Section 25 of the Act.

16. The learned counsel for the respondent has relied on the decision in Seth Ramdayal Jat Vs. Laxmi Prasad [AIR 2009 SC 2463], wherein it was held that save and except for Section 43 of the Indian Evidence Act which refers to Sections 40, 41 and 42 thereof, a judgment of a criminal court shall not be admissible in a civil suit. It was further held in paragraph 19 as follows:- 

"What, however, would be admissible is the admission made by a party in a previous proceeding. The admission of the appellant was recorded in writing. While he was deposing in the suit, he was confronted with the question as to whether he had admitted his guilt and pleaded guilty of the charges framed. He did so. Having, thus, accepted that he had made an admission in the criminal case, the same was admissible in evidence." 

17. On going through Section 43 of the Indian Evidence Act, it is evident that Ext.B5 judgment rendered by the Additional Sessions Court, by which the 3rd appellant was found not guilty of any offence by reason of legal insanity, is relevant to show that she was not convicted and also to the fact that she was found not guilty of any offence by reason of legal insanity. It is not a case wherein the 3rd appellant was acquitted either on any technical ground or extending the benefit of doubt. Therefore, Ext.B5 can be acted upon and relied on as a judgment which is relevant to prove that the 3rd appellant was not acquitted on any technical ground or by extending benefit of doubt.

18. In G.S. Sadashiva v. M.C. Srinivasan and Others [AIR 2001 Karnataka 453] it was held as follows: 

"No doubt, while dealing with S.25 of the Act, one has to be liberal in defining the word 'Murder" and one should not be too technical. In popular sense the word "Murder' means unlawful homicide or unlawful killing of human- being. In popular parlance the word "Murder" is not used or understood in the technical sense as defined in S.300 of IPC. Therefore, to construe the said word in technical sense as defined in S.300 of IPC, will result in defeating the very object of the Legislature. It will also run counter to the well-established principles of equity, justice and good conscience. But considering the evidence adduced by the parties, I am not in a position to apply the principles of S.25 of the Act to non-suit the plaintiff." 

19. In Minto v. Sushil Mohan Singh Malik [AIR 1982 Bom 68] and Biro v. Banta Singh [AIR 1980 P&H 164], it was held that the expression 'murder' would be read in a wider sense and would take in its import even culpable homicide, though, of course, to some extent the matter would depend upon the facts and circumstances of the case.

20. Now let us consider the meaning of the term 'murder' used in Section 25 of the Act, in its popular parlance. Whartson's Law Lexicon quotes the definition given by Coke in respect of the term of 'murderer' in the following terms: "when a person of sound memory and discretion unlawfully killeth any reasonable creature in being, with malice aforethought, either express or implied." It further states, "the person committing the offence must be conscious of doing wrong, and able to discern between good and evil." The World Book Dictionary defines 'murder' as, "the unlawful killing of one human being by another; especially when it is intentional - to kill a human being unlawfully and intentionally." Matters being so, even in ordinary parlance of the term, sound memory is required for a person to commit murder, or atleast malice is expected. Further, in general parlance, the killing must be intentional in order to constitute murder.

21. Precedents are not available on the question as to whether the accused in a case alleging the offence of murder to whom benefit of Section 84 of the Indian Penal Code is given by the concerned Sessions Court, can still be categorised as 'murderer' within the meaning of Section 25 of the Act. Ext.B5 reveals that the learned Additional Sessions Judge has found the third appellant not guilty of the offence alleged against her, as the case was one coming under Section 84 of the Indian Penal Code. Section 84 of IPC states as follows: 

"84. Act of a person of unsound mind: - Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law." 

22. The law presumes that every person of the age of discretion to be sane unless the contrary is proved. It seems that in Sessions Case No.924 of 2009 DWs.1 and 2, Doctors, were examined and Exts.X1 and X2 were marked. Ext.X1 is O.P.Ticket No.231637 of Gokulam Medical College, in respect of the 3rd appellant for her treatment as outpatient. Ext.X1 was proved through DW1 in Sessions Case No.924/09. Ext.X2 is the medical records dated 31.10.2007, in respect of the third appellant regarding her treatment for mental illness at the Medical Health Centre, Peroorkada, Trivandrum. Ext.X2 was proved through DW2. Ext.X1 reveals that the third appellant has undergone treatment for mental disorder even prior to the incident. The allegation against the 3rd appellant is that she caused the death of her husband at 2 p.m. on 24.10.2007. The prosecution records reveal that the 3rd appellant was aged 73 and the deceased was aged 83, at the time of the incident. It is alleged that she strangulated the deceased with a lungi, stabbed and cut him with kitchen knife, beat him with a cycle pump and also with a grinding stone. Even when the first appellant came to the scene, she was engaged in indiscriminately inflicting cuts on the abdomen of the deceased. It was the first appellant who forcibly removed the third appellant from the body of the deceased.

23. The appellant was under the treatment of DW2, doctor in S.C.No.924/09, for the period from 31.10.2007 onwards. According to the said doctor, the third appellant was under the ailment of delusional disorder and she was unable to know the consequences of her acts for a period of two weeks prior to her admission at the Mental Health Centre, Peroorkada. The said period covers the date of her allegedly causing the death of the deceased. According to the said Doctor, by reason of the said mental illness the third appellant was not in a position to understand what she was doing at the time of the said incident, on account of her delusional disorder.

24. The literature on the subject 'delusional disorder' indicates that normally it would be difficult to distinguish the sufferer of the said disease from members of the general public who are not psychiatrically disturbed. The 'delusional disorder' is characterised by the presence of recurrent, persistent, non- bizarre delusions. Until the person with delusional disorder discusses the areas of life affected by such delusions, it would be difficult to distinguish the sufferer from members of the general public who are not psychiatrically disturbed. The form of disorder most associated with violent behaviour, usually between romantic partners, is the jealous subtype of delusional disorder. Patients are firmly convinced of the infidelity of a spouse or partner, despite contrary evidence and based on minimal data. People with delusional disorder might become depressed, often as the result of difficulties associated with the disorder. Acting on the delusions also can lead to violence or legal problems.

25. Researches on the subject reveal that delusional disorder is characterized by one or more false beliefs that persist for at least one month. The false beliefs tend to be ordinary things that could occur, such as being deceived by a spouse. This disorder may develop in people with a paranoid personality disorder.

26. In our jurisprudence, the burden is on the prosecution to prove the guilt of the accused beyond doubt, under the adversarial system based on accusatory method. In civil suits, the entitlement to have a decree or otherwise has to be decided on the basis of preponderance of probabilities. In order to avail the benefit of the general exceptions in the Indian Penal Code, the burden is on the part of the accused. Such burden is not rigorous as that of the prosecution; on the contrary, the burden on the accused can be discharged on the basis of preponderance of probabilities. It is evident that the court below has found the accused not guilty of the offence as the same was a case covered by S.84 of the General Exceptions in the Indian Penal Code. The said finding was entered by a competent criminal court as the defence could prove through preponderance of probabilities that she is entitled to the protection under Section 84 of the Indian Penal Code.

27. If, as a matter of fact, the respondent has a case that the 3rd appellant is a murderer within the meaning of Section 25 of the Act and that she was not entitled to the protection of Section 84 of the Indian Penal Code, the respondent as plaintiff ought to have adduced positive evidence to prove by preponderance of probabilities that the 3rd appellant is a murderer within the meaning of Section 25 of the Act. There was not even an attempt for the same from the part of the respondent/plaintiff.

28. In cross examination, the respondent/plaintiff as PW1 has admitted that presently the 3rd appellant has been continuing at the Mental Health Centre. When she was asked whether she has stated that the murderer was not mentally ill for denying the due share over the properties of the deceased, she denied it and answered that she did not know whether the 3rd appellant had any mental illness at the time of the incident. Further, according to her, she did not know whether the third appellant was suffering from mental illness prior to 2007. As we have noted earlier, Ext.X1 O.P.Card dated 3.10.2007 and the evidence of DW1 in S.C.No.924/09 reveal that the 3rd appellant had a complaint that she was not getting sleep due to anxiety during that period and that she was referred to a psychologist. As per the evidence of DW2, a senior psychologist attached to the Mental Health Centre, Thiruvananthapuram, who was examined in that case, he was of the view that by reason of her mental illness by way of delusional disorder she was incapable of knowing the acts done by her for a period of two weeks prior to her admission at the Mental Health Centre, Peroorkada. She had been treated as inpatient at the Mental Health Centre, Peroorkada from 31.10.2007 onwards and still she is continuing there.

29. In the aforesaid circumstances, in order to deprive of the share of the 3rd appellant in the properties of the deceased, for enabling the respondent to claim 1/3rd share in the said properties, the respondent ought to have proved that the 3rd appellant is not entitled to the protection of Section 84 of the General Exceptions in the Indian Penal Code. Apart from stating in evidence that she did not know that the 3rd appellant was suffering from mental illness during the period of the incident, the respondent has not adduced any evidence to show that the 3rd appellant had proper cognitive faculties to understand the nature and consequences of her acts at the time of the incident.

30. The learned counsel for the respondent has produced before us the reply dated 26.12.2012 issued by the Public Information Officer of the Mental Health Centre, Thiruvananthapuram in which it has been informed that the 3rd appellant, namely Padmini, aged 72 was admitted at the Mental Health Centre, Thiruvananthapuram on 31.10.2007 with Reg.No.7439/2007 and at that time she was an under-trial prisoner with U.T.No.4560 of the Sub Jail, Attingla, and at the time of admission she was in psychosis. Her illness was cured by 3.1.2008 and thereby she was sent back to the Sub Jail. On 11.6.2010 she was again admitted at the Mental Health Centre as she was suffering from Mental Illness and was admitted at Ward No.12. Again the illness was cured and she was sent back to the Sub Jail on 18.6.2010, for facing trial. After finding that she was not guilty on account of mental illness, the First Additional Sessions Judge, Thiruvananthapuram under Section 335 Cr.P.C. sent her back on 19.10.2010 to the Mental Health Centre. As per the said information, her illness has been cured and she can go home; but she has been continuing there as there is nobody to take her back. It has been further informed that she is in need of life long medical treatment for mental illness. That information itself points towards the fact that the 3rd appellant was mentally ill at the time of incident.

31. According to DW2, who was examined in S.C.No.924/09, because of the delusional disorder she was incapable of knowing the nature and consequences of the acts done by her at least for a period of two weeks prior to her admission at the hospital on 31.10.2007. The homicidal death of the deceased happened to be on 24.10.2007, which is within the said period of two weeks. When Section 84 starts with the wording "nothing is an offence..........." it has to be noted that it was not proved that the 3rd appellant had committed any offence at all. Whether the term 'murder' or 'murderer' is taken in the literally sense in general parlance, or in the legal sense as contained in the Indian Penal Code, she should have committed 'an offence' for categorising her as the 'murderer' of the deceased. When she has not committed any offence or what was allegedly committed by her was not an offence, she cannot be termed as a 'murderer'. When she was found not guilty by a competent criminal court by extending the protection under Section 84 of IPC, she cannot be termed as 'murderer' within the meaning of Sections 25 and 27 of the Act, in the absence of any evidence to the contrary. Matters being so, the 3rd appellant is not disqualified from inheriting the property of her deceased husband. The 3rd appellant is entitled to <th share in the properties. Each one of the parties to the suit in this appeal is entitled to <th share in the aforesaid properties and nothing more than that. Matters being so, the impugned judgment and decree are liable to be modified to that effect.

32. In the result, this appeal is allowed in part and the impugned judgment and decree are modified by modifying the relief No.1 granted in the impugned judgment as follows: Plaint 'A' schedule item Nos.1 to 5 are found to be partible into four equal shares and the plaintiff, who is the respondent herein, is entitled to one of such shares. Each one of the appellants is entitled to one such share. In the nature of this RFA, there is no order as to costs.

33. Before parting with the matter, we are constrained to make the following observations and directions. We have noted down the pathetic condition in which the 3rd appellant is placed. Still, she has been languishing at the Mental Health Centre, Peroorkada, Thiruvananthapuram, even though, her mental illness was cured. At the same time, it is a fact that she requires continued medical treatment through out her life. It is a pity that either appellants 1 and 2 or the respondent, who are her beloved children, have not come forward to take her back. She could be taken back on executing a bond for 10,000/-(Rupees Ten thousand only), in favour of the Secretary of the Health Department, Government of Kerala, as per the reply dated 26.12.2012 furnished by the Public Information Officer of the Mental Health Centre, Thiruvananthapuram, under the Right to Information Act.

34. The 3rd appellant is entitled to 1/4th share in the properties of her husband. She should get her due share in the property. It seems that appellants 1 and 2 and the respondent have an eye over such share of the 3rd appellant. At the same time, they are not prepared to take her back. Further actions are required to preserve the properties of the 3rd appellant. We are of the view that the intervention of the Kerala State Legal Services Authority is required in the matter in order to wipe out the tears of the third appellant. The matter has to be brought to the notice of the Hon'ble Executive Chairman of KELSA. The Registry is directed to forward a copy of this judgment to the Member Secretary of KELSA, for bringing the matter to the notice of the Hon'ble Executive Chairman. 

T.R.RAMACHANDRAN NAIR, JUDGE 

B.KEMAL PASHA, JUDGE 

ul/aks