MURDER AND FODRFEITURE RULE
(Published in Supreme Court Journal, Hyderabad, 2007, VOL. 3, pages 1-16)
“Is it ever possible for a person who commits murder (or shall we say convicted of murder) to take the property left on Intestacy or under the Will of the person murdered” will be the main focus of this Article.
Brief Introduction of the Main Topic in PART I, The High Court decisions given after the Act came into force in PART II, The Law prior to 1956 in PART III, Re-examination of the Criminal Cases already decided by the Civil Court in Part IV, Introducing independent evidence in proceedings under Sec.25 in Part V and finally the Corresponding State of Law in England in Part VI, respectively, were the main topics of this Article.
INTRODUCTION TO THE TOPIC
I would like to start this Article by referring to the provision given in Sec. 25 of The Hindu Succession Act, 1956 (hereinafter referred to as ‘The Act’) and also by referring to the different rulings given by different High Courts.
The full text of Sec.25 is as follows and it can be split in two parts.
“A person who commits or abets the commission of the murder shall be disqualified from inheriting the property of the person murdered or other property in furtherance of the succession to which he or she committed or abetted the commission of the murder”
The first part of the section informs us that a person is disqualified from taking the property left behind by the deceased if such person commits or abets the commission of murder of the deceased from whom he or she would have naturally taken the property if such killing has not taken place.
In other words, a murderer or an abettor of murder is disqualified from taking any property left by his or her victim. Here under the first part, the Disqualification Rule (hereinafter referred to as ‘The Rule’ in this article) is straight and direct.
For example, Mr.X is having an adopted son ‘S’ and naturally born daughter ‘D’. S kills his father. S is disqualified.
Again, ‘X’ is having a son through his first wife. After the death his first ‘X’ married ‘W’ and a daughter was born to her. ‘Second wife instigates Son to kill his father. He kills him. He is disqualified. She is also disqualified as an abettor.
Coming to the second part, a murderer or an abettor of murder is disqualified from taking any other property when the killing has been carried out in furtherance of succession to the property. Here the disqualification is not direct and the emphasis is laid on the words “or other property in furtherance of the succession to which he or she committed or abetted the commission of murder”
For example, ‘X’ is expected to die within a year as he was suffering with serious illness. He has a minor daughter ‘D’ and a brother ‘B’. ‘B’ kills the girl. Since this killing was carried out to accelerate the process of succession to take the property of ‘X’, ‘B’ may be disqualified though he has not killed his brother.
In yet another example, Mr. X is having an adopted son ‘S’, a naturally born daughter ‘D’ and his brother B. B instigates S to kill his father. S kills his father and is disqualified. Unfortunately D also died in accident after one year. As against B, the rule of disqualification may become problematic if B has no intention to accelerate the process of succession but had great animosity towards his brother X for not adopting his son P in preference to S and so he has encouraged S to kill his father. There is reliable evidence that before, during and after adoption there was confrontation between X and B and the relatives and friends have pacified them.
Will this evidence make any difference to the rule of disqualification? No doubt B is responsible for the death of X at the hands of his son. No doubt the son is disqualified under first part. The disqualification of B is highly debatable as the most important requirement that the abetment to murder was carried out by B in furtherance of succession is totally missing.
Therefore, the crux of the problem revolves round the words “commits or abets the commission of murder” found in the section. When can a person be declared to have committed the murder is the most important point. It can surely be said that on conviction for murder, he or she can be declared to come within the Disqualification Rule, provided, as declared in the Section, the killing is carried out in furtherance of succession.
When the criminal act of the heir happens, not to be murder or at least, the abetment to murder, an inquiry to find out whether such act was carried out to accelerate the process of succession is a futile exercise.
THE HIGH COURT DECISIONS AFTER THE ACT CAME INTO FORCE
After The Act was brought into force in 1956, beginning with the year 1956, in 1962 , 1970, 1972, 1973, 1977, 1980, 1982 and 2001, the different High Courts had opportunity to give their rulings on this section.
In the very first Appeal decided in 1956, the facts were that Ram Harak Singh, the last male holder of the property, was killed by his two cousins Sri Ram Anand Singh and Ram Narain Singh who were convicted for Culpable Homicide not Amounting to Murder under Sec. 304 of The Code, 1860 for killing Ram Harak Singh. Thereafter, his widow was in possession of the property till her death and thereafter the two cousins got it.
After the death of the two convicts, the sons of Ram Anand, Sri Bijay Bahadur and Rampal Singhs were brought on records. Meanwhile, Sri Maharaja Singh, a nearest Reversioner, brought the suit with the argument that both his cousins Sri Bijay and Rampal Singh were disqualified for committing the murder and if their male issues are left out, the property will come to him.
On the main issue regarding the application of the ‘The Rule’, The Single Judge in the High Court, while agreeing with ruling of the Two Lower Courts that ‘The Rule’ applies against Respondents(cousins), nevertheless, held that the respondents do not base their claim to succeed through their father but claim the estate of the last male owner in their own right as the next reversioners, they are not debarred from succeeding to the estate of Ramsingh”.
In the 2nd Appeal, Lord Chief Justice Mootham and Lord H.S.Chaturvedi, after examining the decision given by the Privy Council, (Hereinafter referred to as ‘The PC’) agreed with the Single Judge. In coming to their decision,
the Justices have also referred to two other decisions in Sri Gangu and Sri Stanumurthiyya given prior to the Act.
THE APPEAL dismissed without disqualifying the Respondents even when they happened to be the sons of the murderer.
In the next Appeal preferred by Sri Chanda Singh in 1962, the facts were that Sri Ude Ram, son of Sri Gulab, was the last male holder of the property. After his death, his wife, Ms.Pali was killed by Sri Nathuram. The murderer had two sons, Sri Chanda Singh, the Appellant, and Sri Banta Singh. Mr.Nathu was convicted for murder and was hanged. After the death of Ms.Pali, the Respondent, Ms.Chameli’s name was entered in mutation records in respect of the land. The appellant and his brother, both minors, brought the suit through their next friend, Sri Mihan Singh, with the argument that respondent was not the daughter of Ude Ram (There was no finding on this issue) but was born to Ms.Pali through her former husband and so cannot claim the land.
The suit and also the 1st Appeal were dismissed. In the 2nd appeal, it was argued, purely on the technical point that Mihan Singh, the next friend, was negligent in pursuing the suit in collusion with respondent and so it was dismissed.
But Lord I.D.Dua held that “there was no material on records to show that Mihan Singh was negligent” in allowing the Appellant in avoiding the decision given by Lower Courts.
On the Appellant’s claim to the property, His Lordship, DISMISSED THE APPEAL by simply referring to two decisions of the Lahore High Court given on the strength of Public Policy Considerations.
The Appellants were disqualified when as they were the sons of the murderer.
In Seetharamaiah Case , in the Criminal Appeals, before the High Court, Lord Justices Sri Krishanrao and Sri Kumarayya, expressed the legal opinion that “after looking at the type of injuries inflicted on the victim, the only possible conclusion from the evidence was that the injuries were sufficient in the ordinary course of nature to cause death” but because of the inconsistency in the evidence given by Prosecution Witnesses, the Respondent was convicted not for murder of his father but under Sec.324 of The Code, 1860 by extending the benefit of doubt with reference to murder.
Subsequently in proceedings brought under Sec.25, while the main issue for fresh Partition by the Respondent was rejected, on the next issue about application of the Rule against Respondent, Justice Sri Obul Reddy, after referring to the PC ruling and also a Madras High Court ruling, held that “respondent shall be disqualified from inheritance since he was responsible for the murder of his father though he was not convicted for the offence. The Judge also held that “Sec.25 was introduced as a matter of high public policy based on principles of justice, equity and good conscience to make it absolutely impossible for a murderer who deserves to be hanged or to be shut behind prison bars for life, to derive advantage from the very heinous act committed by him”.
The Appeal allowed by applying ‘The Rule’ against the Respondent-son though convicted for an offence other than murder.
In the next Appeal filed before the Madras High Court, the Appellant was convicted for the murder of Sri Gounder. The High Court also confirmed the conviction.
He claimed some property under the Will executed by Sri Gounder. He also argued that The Rule applies only to Inheritance but not to Testamentary Succession. Respondent resisted the claim.
Both the Lower and the Appellant Courts dismissed the suit. DISMISSING THE 2ND APPEAL, Jutstice Raghavan held that “almost all systems of law have recognized that a person guilty of homicide cannot succeed to the property of his victim. Sec.25 of The Act gives statutory recognition to the above proposition”
His Lordship also rejected that there was any distinction between “Inheritance and Testamentary Succession”.
The Appellant, being the murderer, was rightly disqualified.
In the next Appeal filed in 1973, after the death Sri Tulsi, his 3 sons, Sri Nathuram, Teja Lal and Budha and his 2 daughters, Ms.Sita and Kamala were the heirs left in the family. The Appellant Sri Jamuna Das was the son of Nathuram. Nathuram was convicted for the murder of his two brothers and sister Sita. On the death of Lal, his share went to his wife Ms.Bhagawati. On being hanged for the murder, Nathuram’s share went to his son. Budha’s share went to his sister Kamala, who died in 1954. When The Uttar Pradesh Land Reforms Act, 1951 was introduced, Jamuna Das claimed the properties left by Ms.Kamala. Ms.Bhagwati opposed this claim.
The Lower Court and Additional Commissioner held that “the decision of the Criminal Court was not relevant to establish the fact that Nathuram murdered his brother and sister and since there was no other evidence the murder was not proved” in allowing the claim.
But in the appeal before the Board of Revenue, it was held that “Nathuram committed murder on the strength of the conviction passed by Sessions Court and therefore, the appellant being the son of murderer was also disqualified under Sec.25 of The Act.” It was also held by “The Board that Tenancy Law was subject to general provisions of Hindu Law unless there was any provision to the contrary”.
In allowing the 2nd Appeal, Lord Justices G.C.Mathur and Sri Swarup of the Allahabad High Court held that “in the present case, the succession is governed by the statutory provisions contained in the Land Reforms Act and the law laid down therein cannot be altered or changed by any rule or principle not contained in the Statute itself. When the legislature laid down a particular line of succession and did not provide for the exclusion of anyone in that line on any ground, then it is not possible to engage exceptions or exclusion on ground of equity, justice and good conscience. The provisions of Secs.25 to 27 of The Act apply to succession under The Act and not to succession under other enactments”. (emphasis supplied)
The Appellant, though he was son of the murderer, was not disqualified as his claim to the property was brought under a different Legislation allowed.
In Mst.Biru’s Appeal , Banta Singh filed the suit for not entering his name in the Revenue Records with reference to some lands left by his father on the reason that he murdered his father, Sri Jaggar Singh and was disqualified from taking the property but keeping his father’s two sister’s names. The Lower Court dismissed the suit. Meanwhile, Banta Singh was convicted, not for the murder of his father, but under Sec.304 of The Code. But the Dist Judge held that since Banta was not convicted for murder but was convicted under Sec. 304 of The Code, he could not be treated as murderer in allowing the 1st Appeal.
Two issues were brought in the 2nd appeal. On the First issue, The High Court declared that “the decision given in the Criminal Case is not binding on the Civil Court but it is only relevant to show that a trail was held resulting in conviction of son” by quoting a Supreme Court (Known as SC) decision in Ms.Latikabala Dassi.
On the most important Second point, Justice G.C.Mittal held “that Respondent inflicted such bodily injuries on the victim sufficient to cause his death. Therefore the respondent was guilty of murder and attracts Sec.25 if The Act.”
APPEAL ALLOWED, when ‘The Rule’ was applied against the Respondent though not convicted for murder.
Next, in the Minoti’s Appeal, the Respondent was convicted under Sec.304 as he had caused the death of his wife Ms.Revati, by inflicting serious injuries on her.
Thereafter, Ms.Minoti, the minor daughter, through her next friend i.e., her grandmother commenced proceedings in Civil Court for a declaration that an amount kept in the bank in the name of her mother belongs to her since she was the only legal heir left in the family as her father was disqualified under Sec.25 for his conviction. The Lower Court allowed her claim to the extent of Rs.5831 in her mother’s account in the bank. But with reference to her claim for another amount of Rs.6800 as Prize Money on lottery tickets bought in her name, the Court passed orders that she has to file a fresh suit because such declaration cannot be given. However, The Court passed a restraint order against the father in not withdrawing the amount. Both daughter and father preferred Cross Appeals in the High Court.
PARTLY ALLOWING daughter’s APPEAL, Justice Dharmadhikari held that “the rule of public policy is that a person will not be able to take the advantage of his own crime. In this context, it is pertinent to note that the words used are ‘commits murder or abets the commission of murder’ and not ‘is convicted of an offence of murder or of abetment of offence of murder’. Therefore it is clear that the Legislature has used the term murder in Sec.25 of The Act not in technical sense as defined in Sec.302 of The code but in a wider and popular sense, which must include in its import even culpable homicide or unlawful manslaughter. It is neither possible nor desirable to lay down general rule in this behalf, because to some extent it must depend on the facts of each case.”
The Court also noted down the fact that both an Appeal as well as a Revision Petition preferred by Sri Sushil and Minoti, respectively, challenging his conviction under Sec.304 and for not convicting her father for murder, were pending before the Appellate Criminal Court. Therefore His Lordship held that “he had decided the question of Disqualification under Sec.25 on the basis of the position as it stands today” (Emphasis Supplied)
The Appellant was not totally disqualified though not convicted for murder.
Yet, Very strangely, while the husband was disqualified even when his Appeal in Criminal case is pending in the High Court, yet, shockingly only partial relief was given to his innocent daughter.
IN Sri Sadasiva’s Appeal, Sri Srininvasan, The Plaintiff-Respondent 1, married Ms.Bharati, daughter of Sadasiva, i.e, Defendant 1-Appellant. On 21-11-1987 she committed suicide. He filed the suit for a declaration that he alone was entitled to succeed to the property left by his wife.
The father-in-law, suspecting the hand of his son-in-law in the death of his daughter, initiated criminal proceedings against him under Secs.302 (8), 498A of The Code by giving a complaint.
The Sessions Court, after assessing the medical evidence, accepted that Ms.Bharati was suffering from schizophrenia and under heavy depression committed suicide. Therefore, Srinivasan was acquitted. This order was also confirmed by the High Court. The Lower Court passed the Decree in favor of son-in-law.
The Court directed both the Defendant 1 and Defendant 2 i.e., LIC to pay the policy amount, already paid to Defendant 1 as he was the Nominee in the Policy Document taken by his daughter, to Srinivasan. All the Parties approached the Karnataka High Court.
The main argument of the appellant was that the decision of the Sessions Court and the High Court in acquitting the respondent was not binding on the Civil Court.
“The Rule not be applied to him as he was honorably acquitted of the charge of murder when it was held that his wife committed suicide” was the counter argument of the Respondent,
Lord Justice Manjunath held that “what is required is that even if the Plaintiff is acquitted by the Criminal Court, if the Defendant is able to satisfy that the plaintiff was acquitted on technical ground or by extending the benefit of doubt and can show that his daughter was actually murdered by Plaintiff or that the Plaintiff was responsible for abetting the crime. But in the instant case, defendant is unable to prove that actually his daughter was murdered. When a competent Court has given a finding that the death of Bharati was due to suicide considering the medical evidence and when the defendant has not placed any evidence before the Civil Court to prove the Bharati did not commit suicide, I cannot interfere with the judgment.” It was also accepted that “while dealing with Sec.25 of the Act, one has to be liberal in defining the word Murder and one should not be technical. In popular sense the word Murder means unlawful killing of human being.
Then coming to the Appeal by LIC, His Lordship has held that there was no fault in disbursing the amount in favor of father–in-law as he was the ‘Nominee’ in the Policy Document.
Finally, the High Court slightly modified the Decree directing the 1st Defendant to pay the amount to son-in-law.
Sadasiva’s Appeal dismissed and the Appeal by Srinivasan against LIC was also dismissed.
The son-in-law was not disqualified as he was acquitted.
Next in 1977, in contrast to the above cases and in a totally opposite approach to that followed by the other High Courts, Hon’ble Justice Yogeshwar Dayal in the Delhi High Court, refused to reopen the decision of the Criminal Court wherein His Lordship held that “she (Mrs. Shakuntala Devi) has been acquitted in the murder case. It matters not whether she was acquitted honorably or given benefit of doubt. In law she is acquitted. After the acquittal the widow is the only legal heir of her husband”. (Emphasis Supplied)
The facts responsible for the above decision were that Sri Rajendra Kumar, being the brother of both Mohan and Chaman Lal, brought the suit against Mohan in reference to some property that was already sold out, without the knowledge of other members of the family, by Mohan to Sri Devinder. When Rajendra died, Chaman gave an application that he should be brought on record as Plaintiff since Ms.Shakuntala Devi, wife of Rajendra was involved in murder of her husband.
But she argued that she was acquitted of the charge of murder and so she must be brought on record. The Lower Court accepted her request. In Revision, it was argued that allowing Ms.Devi to represent her husband was bad on the reason that although she was acquitted yet she was instrumental in abetting the murder.
His Lordship also held that under “Sec.8 of the Act the property of a male Hindu, dying intestate, first devolves upon Class I heirs and widow is one such heir. There is no condition mentioned in The Act for her exclusion from inheritance on her husband’s death except a general provision in Sec. 25 whereby a person who commits murder or abets the commission of murder shall be disqualified from inheritance of the succession to which he or she committed the murder or abetted the commission of murder. This general disqualification provided in the section is applicable to all persons to the extent it is applicable to them but it is not limited merely to a widow. In the present case, Ms.Devi has been acquitted. That acquittal is final for the purpose of The Act. It is not the scheme of the Act that Civil Court should again examine the charge of murder and hold an enquiry or trail independently after acquittal from the Criminal Court. There is no other restriction on the heir once he or she is entitled to succeed under Sec.8 of The Act.” (Emphasis Supplied)
Chaman’s Appeal dismissed as Ms.Shakuntala Devi was not disqualified as she was acquitted of the charge of murder of her husband.
LEGAL POSITION PRIOR TO 1956
In the case before The Privy Council, the facts were that Chanabasava, a widow was in possession of property of her deceased son. Her nephew, Sri Henmappa, killed her. He would have secured the property, as the heir of the last male owner, i.e., Sri Parappa, had he not killed the victim.
Subsequently, Kenchava, the Appellant and Ms.Gangava, both sisters of the murderer obtained the property. The Respondent, Girimallappa, as the son of the Parappa’s aunt, claimed that he had a better title than the two sisters of Henmappa.
The PC consisting of Lords Dunedin, Phillimore, Carson and John Edge held that “a murderer must be for the purpose of the inheritance be treated as if he were dead when the inheritance opened and not as be 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 be succession be claimed through him.” It was also held that “even if Hindu Law did not disqualify the murderer from succeeding to the estate, he was so disqualified upon the principles of Justice, Equity and Good Conscience.”
Finally, the Privy Council dismissed the sisters’s claim to the property.
This ruling was considered to be the authority for applying the Disqualification Rule to a murderer or to his kith and kin in India in regard to succession to the property.
In an interesting ruling given in another case by Hon’ble Justices N.J.Wadia and Norman, it was held that “no case has been cited to us that a mere conspiracy to murder is sufficient to disqualify a person so conspiring from succeeding to the inheritance, even though no murder may have actually been committed as a result of the conspiracy or though, the murder actually committed may not have been connected with the conspiracy at all”.
It was also pointed out by their Lordships that the principle laid down in the Privy Council decision that a man should not be allowed to take advantage of his own wrong, cannot apply here in the present case “where the conspiracy has not resulted in the murder at all or where the murder has taken place but not as a result of the conspiracy.”
In Nakchand case, the claim by Respondent was upheld by the Hon’ble Justice Bhargava when it was held that “the mere act of their father Anand Singh having committed murder of Ram Harak Singh and thus having being disentitled to succeed to the property of the victim would not take away their right which they had acquired by birth and which did not depend upon the right which Anand lost by committing the murder”.
REEXAMINATION OF THE CRIMINAL CASES ALREADY DECIDED
While The High Courts of A.P., Madras, Karnataka, Bombay are prepared to reexamine the Criminal Cases to independently come to an opinion whether the claimant has committed the murder to disqualify him under Sec.25, Punjab High Court alone quoted the decision of the Apex Court in Ms.Latikabala Dassi in support of this line of approach.
But the Allahabad, Karnataka and Delhi High Courts refused to follow the above line of approach.
In Ms.Latikabala, the brief facts, culled out from a web of most complicated facts, were that Ms.Bala was the wife of Sri Charu, the son of late Sri Binod Lal. Both Bala and her husband were Executors of the Will executed by her father–in-law. Sri Charu was convicted for the murder of his father. The Appellant, Sri Anil Behari, who was the grandson of another Executor, was unsuccessful in Lower Court in his argument for Revocation of Probate, that was already granted in favor of Respondent and others, under Sec.263 of The Indian Succession Act, 1925.
Finally this matter was placed before Hon’ble Justices Sri Bose, Sri Jagannadha Das and Sri Sinha in Supreme Court.
While deciding the main issue regarding the Revocation of Probate, The Justices, in their passing remarks, have said that “the Courts below have assumed on the basis of the judgment of conviction and sentence passed by the High Court in the Sessions Trail that Sri Charu was the murderer. Though that judgment is relevant only to show that there was such a trial resulting in the conviction and sentence of Charu to transportation for life, it is not evidence of the fact that Charu was the murderer. That question has to be decided in evidence.”
Nearly half century later in 2004, the SC, referred to the decision in Latikabala in Shanti Kumar Panda’s Appeal.
Shanti Kumar is about the binding force of the orders passed by Executive Magistrate under Sec.145 and 146 of The Code of Criminal Procedure, 1973. Speaking on this aspect, Lord Justices Lahoti and Asok Bhan have declared that an order passed by Executive Magistrate is an order by Criminal Court that too based on summary inquiry.(Emphasis Supplied). The order is entitled to respect and weight before the competent court at the interlocutory stage. At the stage of final adjudication of rights, which would be on the evidence adduced before the court, the order of Magistrate is only one of several pieces of evidence.”
The SC also declared that a decision given by Criminal Court does not bind the Civil Court while a decision given by the Civil Court binds the Criminal Court.”
INTRODUCING INDEPENDENT EVIDENCE IN PROCEEDINGS UNDER SEC.25
Now what independent Evidence can be re-examined and re-assessed by the Court in proceedings under Sec.25 has to be examined.
Invariably, in most of the cases, the evidence already introduced in Criminal Cases was once again brought before the Civil Proceedings.
In Ms.Biru, copies of the Order of Conviction, Dying Declaration and Doctor’s Statement formed the evidence to declare that Banta Singh killed his father. It was also said that the decision given in the Criminal Court is not binding in proceedings under Sec.25.
In Sadasiva, Lord Manjunath declared that application of The Rule against son-in-law is possible only if father-in-law is able to satisfy the Court that that his daughter was actually murdered and son-in-law was acquitted on any technical ground or by extending the benefit of doubt.
Hon’ble Lord Dayal of The Delhi High Court rightly did not agree to reexamine the order of acquittal.
It can be observed that coming to the decisions given by Sessions Courts across the country, there may be no problem when a person is convicted for murder. The Court exercising jurisdiction under Sec.25 may readily accept the conviction to apply ‘The Rule’ against the murderer without looking for independent evidence. But the application of The Rule against the claimant will be problematical in cases of acquittal on complete absence of evidence or by extending the benefit of doubt to the accused or when the conviction is for offences other than murder.
In Jamuna Das, The Justices have rejected ‘the argument that sec. 25 has to be applied against the Appellant when separate line of succession is given in special legislation.’
It is very interesting to observe that while the Courts have expressed doubts when the claimant was acquitted of the Charge for Murder but applied Disqualification Rule against them by putting emphasis on the words “Committed Murder” in the section.
But similar doubts were not expressed when it was an order of Conviction for murder. Is it because the conviction order will be passed on proof beyond reasonable doubt? Can the Courts not stay the proceedings under Sec.25 when appeals are pending wherein the lower Courts decisions may be rejected?
Though as a legal principle, a decision given by a Criminal Court is not binding on the Civil Court, it is highly unlikely that Lower Courts would like to re-examine the decision already given by the SC or High Courts in Criminal Proceedings as happened in Seetharamaiah case.
STATE OF THE LAW IN ENGLAND
The corresponding Rule in England was historically and popularly known as FORFEITURE RULE.
It was not until the year 1982 that The Forfeiture Act, 1982 (Hereinafter referred to as ‘The FF Act’) was brought into force to provide “some discretionary relief to persons guilty of manslaughter in succeeding to the property of his or her victim” by the Courts.
But it must be remembered that Forfeiture Rule was not created by this Act. This rule existed long before this Legislation. It was a part of Public Policy Consideration evolved in English Law.
(a) Position prior to The FF ACT
IT WAS LORD Justice Mansfield who said in 1775:
“The Principle of Public Policy is this. EX DOLO MALO NON ORITUR ACTIO. No Court would lend its aid to a man who founds his cause of action upon immoral or an illegal act”.
Historically, in the days when a felon forfeited his property to the Crown, he could not benefit personally from his victim. The Crown took everything including what the felon had inherited. So there was no need for Forfeiture Rule in the sense in which it was now understood.
In Gray V. Barr, (Prudential Assurance Co. Ltd., Third Party) the Appellant, Ms.G, was the widow of ‘G’. ‘G’ died in a fight with the Defendant, Mr. Barr, when Mr.Barr came to G’s house with a loaded gun, not to shoot him, but to frighten G because Barr’s wife had developed an illicit relationship with the victim. Finally Mr.Barr was acquitted of both murder and manslaughter on the reason that it was an accidental death.
Now, under the Fatal Accidents Act, 1959, the widow brought an action for damages against the defendant for wrongfully killing her husband
Mr.Barr admitted liability but sought indemnity from the insurance company as he took a Policy under which the company agreed to pay all sums for which he shall become legally liable to pay as damages ……in respect of …….bodily injury to any person…..caused by accidents.
Out of the two questions, the Second is the most important one, as on this that Lords Denning, Salmon and Phillimoore rejected his claim, in their separate rulings, on reasons of Public Policy by declaring that ‘nothwithstanding his acquittal the Court can go behind it to decide that it was not accidental death but a case of manslaughter’ thus blocking the defendant.
Lord Salmon said that “I am not deciding that ‘a man who has committed manslaughter would, in any circumstances, be prevented from enforcing a contract of indemnity in respect of any liability he may have incurred from causing death or from inheriting under a WILL or ON THE INTESTACY of anyone whom he has killed. Manslaughter is a crime which varies infinitely in its seriousness. It may come very near to murder or amount to little more than inadvertence, although, in the latter class of case the jury only rarely convicts” .
After agreeing with Justice Geoffrey Lane who already said that “the logical test is whether the person seeking the indemnity was guilty of deliberate, intentional and unlawful violence. If he was, and death resulted therefrom, then, however unintended the final death of the victim may have been, the court should not entertain the claim for indemnity,” Lord Denning, asked the question “Does this manslaughter mean that, as a matter of fact, Mr.Barr is not to be allowed to recover on the Policy? (And also gave the answer that) “but, in the category, which is here in question it is different. If his conduct is wilful and culpable he is not entitled to recover”.
Justice Phillmore said that “where the unlawful act was so technical or recklessness so unlikely to cause death and if death resulted an ordinary citizen might say ‘Well, the Lawyers can call it manslaughter but I call it an accident’. This case is not in that sort of class” in rejecting Barr’s claim to recover on his policy on Public Policy considerations.
In Giles v. Giles, Ms. Lilian Giles, the second wife of Mr.Arthur, was prosecuted for Murder of her husband but was finally convicted for manslaughter with diminished responsibility. On medical evidence she was detained in a hospital with a restriction on her discharge without limitation of time under Secs.60 and 65 of The Mental Health Act, 1959. (Referred to as ‘The MH Act’)
Before his death, husband already executed a WILL giving all his property to second wife. The Plaintiff, William Giles, being the son of Arthur in his first marriage, brought proceedings that his father’s estate shall be given to him as his stepmother was convicted for the offence of manslaughter of his father.
Rejecting her argument that ‘the principle only applies to crimes deserving punishment or, to use another phrase, crime carrying a degree of moral responsibility’, Lord Justice Pennycuick said that “it is true that sentence of detention for hospital treatment is not in the nature of a punishment but is a remedial order. The answer, in this Court, is that neither the deserving of punishment nor carrying a degree of moral responsibility has ever been a necessary ingredient of the crime the perpetrator of which is disqualified from benefiting under the will or intestacy of the person whom he has killed.”
A detailed analysis of the above rule had taken place in R V Chief NATIONAL INSURANCE COMMR. The facts were that applicant Ms.Joanna Connor, was convicted, though not for murder, but for manslaughter of her husband. With her consent, she was put under Probation Order for 2 years.
Justice Smith, sitting as the Cheif Insurance Commissioner, rejected her claim for a widow’s allowance under Sec. 24(1) of The Social Security Act, 1975 (Referred to as ‘The SS Act’) on the basis of Public Policy considerations.
In her Appeal before Lord Justices Lane, Griffith and Webster, Lord Lane wrote the main decision with no dissent from the other Lords.
Mr.G.Lawrence, her Lawyer, submitted two important arguments.
First, it was submitted that in a self-contained Modern Act like SS Act, rules of Public Policy do not apply and that whatever may have happened nothing she did can alter her Plain Entitlement to the claim.
Firmly rejecting this, Lord Lane held that “the fact that there is no specific mention of disentitlement so far as a widow is concerned if she were to commit this sort of offence and so become a widow is merely an indication that the draftsman realized perfectly well that he was drawing this SS Act against the background of the law as it stood at the time”
Then accepting her second argument that it is not every type of crime which operates so as to cause Public Policy to reject her claim, Lord Lane, while accepting the Dictum of Lord Justices Salmon and Lord Denning in Gray V. Barr above, said that “it is not the label which the law applies to the crime which has been committed but the nature of the crime itself which in the end will dictate whether Public Policy demands the court to drive the applicant from the seat of justice. Where that line is to be drawn may be a difficult matter to decide, but what this court has to determine is whether in the present case what this applicant did was sufficient to disentitle her to her remedy” thereby recognizing the difficulty in drawing the line.
After referring to the decision in the Criminal case, he pointed out that “on the verdict of the jury it is plain that the applicant’s act was a deliberate, conscious and intentional act” in DISMISSING HER APPEAL.
In ROYSE, the Plaintiff, Ms.Royse was convicted for manslaughter of her husband, with a diminished responsibility under the Homicide Act, 1957. As such she was detained in a Hospital under Sec.60 of The MH Act, 1959. After 2 years she became normal and was kept in her husband’s house. Before his death, husband already executed a WILL making his wife the sole beneficiary and also appointed her as the Trustee for his estate. But Mary Royse, mother of deceased, obtained Letters of Administration to the estate of her son and she died on 16-5-1982. Thereafter, Mr.Albert and Ms.Caroline Royse, the brother and sister of the deceased claimed the estate under another WILL executed by THEIR MOTHER.
Then Ms.Royse applied for sufficient provision to be made to her from the estate of her husband under The Inheritance (Provision for Family and Dependants) Act, 1975. (Referred to as ‘The IA Act’)
When Justice Donoghue rejected her claim, she brought her appeal before the Court of Appeal.
Lord Justice Ackner, writing the majority decision, had discussed the position prior to the FF Act and rejected her claim on the reason that ‘appellant, having been convicted of the manslaughter of her husband, was disqualified from taking any benefit under his will or on his intestacy if he had died intestate, even though the sentence passed on her was one of detention for hospital treatment under MH Act and was therefore a sentence designed to be remedial in nature and not by way of punishment”.
Then discussing about her claim under The FF Act, His Lordship held that “the absence of a reasonable financial provision for the appellant cannot be attributed, either to the deceased husband’s will or to intestacy laws if these had been relevant. It is solely the result of the rule of public policy which precludes her from acquiring a benefit from under his will or on his dying intestate, if he had so died, because she had unlawfully killed him’.
Next discussing the legal position under the FF Act, Lord Ackner declared that since she was convicted on 27-7-1979, nearly 3 years prior to the Act, she cannot apply for any relief and the Court cannot exercise discretion to modify the effect of Forfeiture Rule in her favor.
In his separate opinion, Lord Justice Slade too dismissed her appeal.
In all the above cases Disqualification Rules was applied against the Claimants.
Now coming to the contrary rulings, in Re K, a wife was convicted of the manslaughter of her husband on the grounds of diminished responsibility and was put on probation for two years. There was evidence that her husband had been persistently and seriously violent towards her over long period. Her husband executed a ‘Will’ leaving his property to her for lifetime and then to the other heirs. She applied for relief under the FF Act and got it.
Thereafter, some residuary beneficiaries brought this Appeal before Lords Ackner, Griffiths and Brown-Wilkinson.
After rejecting the argument of the appellant that she-the claimant-was, if at all, only entitled to get no more than what she could get if she has obtained divorce or made a claim under IA Act, Lord Ackner, with Lords Griffith and Browne-Wilkinson in agreement but in their separate rulings, wrote the first opinion that “Sec. 2(2) of the FF Act has conferred very wide discretion to modify the strict forfeiture rule and there were no restrictions upon the Court in this regard.”
Again In Re Houghton it was held that “if the medical illness was so great that the verdict was ‘not guilty by reasons of insanity’, the Forfeiture Rule has no application.
In putting an end to this Article, I would like to make the following observations on this most important topic. Disqualification of any heir is a very serious issue as “It concerns an area in which difficult moral questions are intertwined with uncertain and often conflicting legal principles”
The Courts have to keep in mind 3 principles in deciding cases brought under this Section. First, no conceivable encouragement is provided to accelerate the process of succession by commission of crime. Second, a result is reached in each case, which appears as far as possible to be humane and intuitively just. Third, the relevant principles are not avoidably uncertain in their application to the facts.
When we look at the Title to Sec.25, it becomes very clear that it is ‘Murderer’ alone who is disqualified. Therefore extending the Rule to innocent legal heirs like mother, daughter etc. of the slayer is totally atrocious because these heirs are punished for a crime committed by others.
Sec.25 of The Act prescribes a simple test for applying the Rule against the claimant. The court has to examine ‘whether the killing had taken place to take a benefit out of the estate of the victim.’ In none of the cases this test was applied resulting in some confusion and inconsistency in some of the rulings. This can be removed if we understand that Murders are committed for variety of reasons and not necessarily to hasten the claim to the property of the victim.
In the most recent decision in 2005 Mrs. Vallikannu —the only Class I Legal Heir left in the joint family—the innocent wife of murderous husband, who killed his father, was unfortunately and unjustly disqualified from the taking the property left by her father-in--law.
Prof. J.B.Ames argued that when ‘someone murders a person from whom he inherits property the murderer should hold the property on a constructive trust’.
Prof. A.W. Scotts went on to argue in favor of a deemed pre-deceased rule. Discussing this topic under the heading “Constructive Trusts” he said:
“Where a person is murdered by his heir or next of kin, and dies intestate, the heir or next of kin holds the property thus acquired by him upon a constructive trust for the person or persons who would have been heirs or next of kin if he had pre-deceased the intestate”
Lastly, The application of ‘The Rule’to the accused in cases of (1) death caused to a person of 18 years with his consent or (2) death caused by doing a rash and negligent act falling respectively under Secs.300 (Exception 5) and 304A of The Code’ is also highly controversial and debatable as the Murder is given a different interpretation and meaning in some of the decisions.
Is it not the appropriate time to completely review all the earlier authorities on this topic and if possible to re-draft Sec.25 of The Act?
If we want bring in more categories of persons under the Rule for causing death of another with more severity, then Sec. 25 can be redrafted as follows:-
A PERSON CONVICDTED FOR THE OFFENCES OF MURDER OR CULPABLE HOMICIDE OR ABETMENT OF MURDER OR CULPABLE HOMICIDE OR CAUSING DOWRY DEATH OR ABEMTNE T OF DOWRY DEATH OR ABETMENT OF SUICIDE UNDER THE INDIAN PENAL CODE, 1860 ALONE SHALL BE DISQUALIFIED FROM INHERTING THE PROPERTY LEFT BY THE DICEASED, AS INTESTAE OR NOT, OR OTHER PROPERTY IN FURTHERANCE OF THE SUCCESSION TO WHICH HE OR SHE COMMITTED OR ABETTED THE COMMISSION OF THE ABOVE OFFENCES RESULTING IN THE DEATH OF THE PERSON.
Or in the alternative if we want to restrict the application of ‘THE RULE ONLY TO A MURDERERS’ SO AS TO protect the rights of inheritance of innocent legal heirs of the murderer, Re-draft of Sec. 25 may be as follows:-
A PERSON COMMITTING MURDER OR ABETMENT OF MURDER ALONE SHALL BE DISQUALIFIED FROM TAKING THE PROERPTY LEFT BY THE DECEASSED, EITHER UNDER INTESTASTE OR TESTAMENTARY SUCCESSION, OR ANY OTHER PROPERTY IN FURTHERANCE OF THE SUCCESSION TO WHICH HE OR SHE COMMIITTED THE MURDER OR ABETMENT OF MURDER.