Judgment :- 1. First defendant in O.S. No. 87 of 1978, on the file of the District Munsifs Court at Melur, is the appellant before this Court. 2. Suit filed by the plaintiff, after amendment of the plaint, is to direct the defendants to surrender possession of the properties to the plaintiff without let or hindrance, and for payment of mesne profits. Alternatively, a decree is also sought for partition claiming half share over the plaint items. 3. Material averments in the plaint may be stated as follows:— The schedule properties, according to the plaintiff, are the self-acquired properties of late Ramasami Konar. First defendant is the only son of Ramasami Konar. Wife of the acquirer was already divorced, and she has married some other person and is residing separately. It is said that the first defendant married the plaintiff on Pappankuttu, and both of them were residing as man and wife. While so, on 10.10.1972, first defendant murdered his father Ramasami Konar and was convicted under Sec. 302, I.P.C. for life imprisonment in S.C. 26 of 1973, on 26.4.1973 by the Additional Sessions Judge of Madurai. In Criminal Appeal No. 403 of 1973, this Court confirmed the conviction but recommended to the Government to reduce the sentence as one of period already undergone. The first defendant had served three years imprisonment, and this Court found the same to be sufficient. The first defendant was released from prison sometime in July 1975. It is said that since the first defendant murdered his father, he is not entitled to succeed to the estate of the deceased and, therefore, under personal law, plaintiff alone is entitled to all the properties left by the deceased. According to her, first defendant must be deemed to have died as provided under Section 25 read with Section 27 of the Hindu Succession Act. She claims to be the widow of the first defendant, and she claims to be the owner of the property. After his release from the prison, first defendant was living with the plaintiff for some time, but thereafter she was driven out of the house. Second defendant is already impleaded in the suit as tenant claiming under first defendant. Plaintiff, therefore, prays that she may be granted the reliefs above mentioned. 4. In the written statement filed by the first defendant, he contended that the suit is not maintainable. Second defendant is already impleaded in the suit as tenant claiming under first defendant. Plaintiff, therefore, prays that she may be granted the reliefs above mentioned. 4. In the written statement filed by the first defendant, he contended that the suit is not maintainable. According to him, plaintiff cannot be a legal heir of Ramasami Konar. The further statement that the properties are self-acquired properties of Ramasami Konar is false. All the properties are joint family properties, and the first defendant has obtained the same by survivorship. The plaintiff cannot claim any right since the properties are joint family properties. He prayed for dismissal of the suit. 5. The trial court, as per judgment dated 31.3.1980, held that all the properties are joint family properties of deceased Ramasami Konar and first defendant. Second defendant is a cultivating tenant. The first defendant having murdered his father, is not entitled to claim any right under the Hindu Succession Act and, therefore, as per Proviso to Sec. 6 of the Hindu Succession Act, a decree for half share was granted in favour of plaintiff. The matter was taken in appeal. The lower Appellate Court also confirmed the same, but with a modification that the decree passed by the trial Court will be treated as a preliminary decree. The lower Appellate Court also found that the appellant must be treated as non-existent and, therefore, plaintiff became a Class 1 heir under Schedule 1 of the Hindu Succession Act and, therefore, the right of Ramasami Konar over the property was devolved on the plaintiff. The appeal was dismissed. 6. It is against the concurrent judgments of the Courts below, first defendant has preferred this Second Appeal. 7. At the time of admission of the Second Appeal, the following substantial questions of law were raised for consideration:— “1) Whether Ex. A-2 Judgment in the criminal case is conclusive on the question of exclusion from inheritance in the present proceedings? and 2) Whether the exclusion from inheritance would cover enlargement of interest by survivorship, in the light of Section 6 of Hindu Succession Act?.” 8. On question No. 1 learned counsel for the appellant submitted that Ex. A-2 judgment in Sessions Case No. 26 for 1973, on the file of Additional Sessions Judge, Madurai, cannot be made use of in a civil proceeding unless there is evidence in the case that the appellant has murdered his father. On question No. 1 learned counsel for the appellant submitted that Ex. A-2 judgment in Sessions Case No. 26 for 1973, on the file of Additional Sessions Judge, Madurai, cannot be made use of in a civil proceeding unless there is evidence in the case that the appellant has murdered his father. According to him, the judgment rendered by the trial court cannot be made use of in a civil proceeding except for the purpose of showing that he was convicted. But that will not be evidence of murder in a civil proceeding. It was further submitted that no evidence has been let in by the plaintiff to prove murder so as to claim a right over the estate of Ramasami Konar. 9. Learned counsel for the appellant relied on Section 43 of the Evidence Act in support of the above contention. 10. Section 43 of the Evidence Act reads thus:— “Judgments, orders or decrees, other than those mentioned in Sections 40, 41 and 42, are irrelevant, unless the existence of such judgment, order or decree is a fact in issue, or is relevant under some other provisions of this Act.” 11. In A.I.R. 1955 S.C. 566 ( Anil Behari v. Smt. Latika Bala Dessi and others ), their Lordships considered this point and held thus: “Where in a proceeding for revocation of the grant of probate under S. 263, Succession Act, the question is whether the son of the testator murdered him, it cannot be assumed on the basis of a previous judgment of a Criminal Court convicting the son of the murder of his father and sentencing him to transporation for life, that the son was the murderer of the testator. The judgment of the Criminal Court is relevant only to show that there was such a trial resulting in the conviction and sentence of the son to transporation for life. It is not evidence of the fact that the son was the murderer of the testator. That question has to be decided on evidence.” 12. Commenting on Section 43 of the Evidence Act, in ‘Sarkar on Evidence’ - 14th Edition (1993), at page 752, the learned author has said thus:— “Decision of a criminal case cannot be relied on as one binding in a civil action. Equally the findings in a civil proceeding are not binding on a subsequent prosecution founded upon the same or similar allegations. Equally the findings in a civil proceeding are not binding on a subsequent prosecution founded upon the same or similar allegations. The judgment in the criminal court would not be relevant in the claim petition under the Motor Vehicles Act. The judgment in the claim petition would not be relevant in the criminal case for establishing the guilt of the accused.” At page 753, the learned author further says thus:— “A judgment of Criminal Court is admissible to the extent of factum of charge and conviction. The order of the criminal court is admissible to prove acquittal, but the conclusions drawn are not binding, though the judgment may be looked at for seeing the circumstances which resulted in acquittal.” This is all the evidentiary value of a judgment rendered by criminal court. On the basis of this legal position, learned counsel for the appellant submitted that in this case, except for the evidence of P.W. 1 no other evidence has been let in to prove the murder and, therefore, the suit itself is misconceived. So long as the murder is not proved, disqualification alleged in the plaint cannot stand. 13. I agree with the legal submission. But I do not think that the same could be applied in the facts and circumstances of the case of this case. In Civil Court, the parties are governed by the pleadings. Plaintiff has specifically alleged in paragraph 6 of the plaint that the appellant has murdered his father Ramasami Konar and was convicted on 10.10.1972 under Section 302 of the Indian Penal Code, for life imprisonment. There is also a further statement that there was an appeal to this Court where the conviction was confirmed, but the sentence was reduced, in view of the recommendation made in the judgment. 14. This part of the allegation is nowhere denied in the written statement. In fact, this was not even answered in the written statement. 15. Under Order 8, Rule 5, C.P.C., every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability: Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission. Along with this, the Court can also take note of Section 58 of the Evidence Act. It says that ‘No fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which before the hearing, they agree to admit by any writing under their hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings: Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions. So long as the defendant has not denied that he is not the murderer of Ramasami Konar, this is a matter which does not require evidence. Under Order 8, Rule 5, C.P.C. read with Section 58 of the Evidence Act, this fact need not be further proved. It must be deemed to have been admitted. 16. Before the lower Appellate Court, such contention was not raised. In the memorandum of appeal filed before the lower Appellate Court, he did not disprove the finding of the trial Court regarding the factum of murder. Even though the position of law is correct, I do not think the same will have any application to the facts of this case. Further, the lower Appellate Court has also said that the plaintiff has stated in her evidence about the murder. She was not cross-examined on this point. Therefore, the findings of the courts below that the appellant has killed his father, are only to be confirmed. 17. But the further question that arises for consideration is, whether that will exonerate him from inheritance. The latter part of Question No. 1 which deals with the above point, and Question No. 2 have to be taken together. 18. In this case, both the Courts below have found that all the plaint properties are joint family properties of deceased Ramasami Konar of which the appellant is also a member. The parties are admittedly governed by Hindu Mitakshara law. 19. According to the plaintiff, she is entitled to the plaint property in view of the provisions under Section 6 read with Section 8 of the Hindu Succession Act. Along with the same, learned counsel also wanted me to take note of Sections 25 and 27 of the said Act. I will consider his argument. 20. 19. According to the plaintiff, she is entitled to the plaint property in view of the provisions under Section 6 read with Section 8 of the Hindu Succession Act. Along with the same, learned counsel also wanted me to take note of Sections 25 and 27 of the said Act. I will consider his argument. 20. Section 6 of the Hindu Succession Act deals with devolution of interest in corparcenary property. It says: “When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon surviving members of the coparcenary and not in accordance with this Act.” There is a Proviso to that Section which says thus:— “Provided that, if the deceased had left him surviving a female relative specified in Class 1 of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.” (Explanations 1 and 2 to that Section are omitted as they are unnecessary). 21. Section 8 deals with succession in the case of males who died intestate, it reads thus:— “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 1 of the Schedule; Plaintiff claims that she comes within one of the heirs referred to in Schedule 1 class 1. 22. Section 25 says thus:— “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.” (Emphasis supplied) Section 27 says: “If any person is disqualified from inheriting any property under this Act, it shall devolve as if such person had died before the intestate.” 23. Learned counsel for the respondent/plaintiff submitted that Section 25 disqualifies a murderer from inheriting the properties of the dead man and by fiction of law, the murderer must be treated as dead before the murder took place. Learned counsel for the respondent/plaintiff submitted that Section 25 disqualifies a murderer from inheriting the properties of the dead man and by fiction of law, the murderer must be treated as dead before the murder took place. The argument is, if the first defendant is deemed to have died before Ramasami Konar, plaintiff becomes widow of his pre-deceased son and, therefore, she comes under the category of Class 1 heir of the Schedule. We must understand that the parties before Court are man and wife. It is on the basis of ‘fictional death’ or ‘deemed death’ of the first defendant, plaintiff claims as his legal heir. The claim is through the first defendant and not as legal heir of Ramasami Konar or claiming any right through Ramasami Konar. But her claim is only as ‘deemed widow’ of the first defendant, who is deemed to have died. 24. As against the said contention of the learned counsel for the respondent/plaintiff, the learned counsel for the appellant contended that the very argument of learned counsel cannot be accepted. When the concurrent finding is that the plaint property is a coparcenary property, the provisions of Hindu Succession Act will have no application. It goes only by survivorship. According to learned counsel, the main part of Section 6 is sufficient answer to all the arguments of the learned counsel for the respondent/plaintiff. He further said that the Hindu Succession Act deals only with succession and not survivorship. He also gave importance to the preamble of the Act which says, “An act to amend and codify the law relating to intestate succession among Hindus”. He also gave importance to the definition Section where ‘heir’ is defined as any person, male or female, who is entitled to succeed to the property of an intestate under this Act. (Emphasis). ‘Intestate’ is defined as ‘a person is deemed to the intestate in respect of which he or she has not made a testamentary disposition capable of taking effect’. According to learned counsel, the appellant is not a legal heir. Under the Hindu law, when a property belongs to the coparcenary, he is not succeeding to the estate of late Ramasami Konar. There is no question of any succession as between coparceners, unless the Proviso to Section 6 of the Hindu Succession Act is made applicable. According to learned counsel, the appellant is not a legal heir. Under the Hindu law, when a property belongs to the coparcenary, he is not succeeding to the estate of late Ramasami Konar. There is no question of any succession as between coparceners, unless the Proviso to Section 6 of the Hindu Succession Act is made applicable. Admittedly, Ramasami Konar has not left any female relative and, therefore, the Proviso will have no application. He further said that if the main Part of Section 6 is applied, naturally, Sections 25 and 27 of the Act also will not apply. None of the provisions of the Hindu Succession Act are made applicable in the case of persons governed by Hindu Mitakshara law and in respect of properties which are coparcenary in nature. The argument is further elaborated by stating that the right of the appellant as a coparcener is not taken away by any of the provisions of the Statute. If he is a coparcener, even if he is disqualified as a legal heir, that will not take away his right to claim as the last surviving coparcener on the death of his father. It is not a claim under the father. But it is a right given by birth, and not one which arose on the death of the father. If that be so, if one coparcener dies, his interest in the property goes to the other coparcener. If there are only two coparceners in a family, and if one dies, the remaining coparcener becomes the sole surviving coparcener. That is not a case of succession or a claim as legal heir. Therefore, none of the provisions will have any application. 25. I think that the said contention that the claim of survivorship has to stand. But, how far the murder is a disqualification will be considered later. 26. I state the reasons below:— In ‘Hindu Law’ (1913 Edition), Sir Ernest John Trevelyan says about a right of a coparcener in a joint family. 25. I think that the said contention that the claim of survivorship has to stand. But, how far the murder is a disqualification will be considered later. 26. I state the reasons below:— In ‘Hindu Law’ (1913 Edition), Sir Ernest John Trevelyan says about a right of a coparcener in a joint family. At page 219, the learned author says: “Under the Mitakshara law a Hindu acquires by birth or adoption a vested interest in all coparcenary property (whether ancestral or not, and whether acquired before or after his birth or adoption, as the case may be), held by his father, or fathers father, or fathers father as members of a joint family even during their lifetime.” The learned author further says:— “Those persons who by birth or adoption so acquire an interest in the coparcenary property are coparceners. A person can also become a coparcener by the death of an ancestor, whose existence excludes him from the coparcenership. All the coparceners are male descendants in the male line of the acquirer of the property. The interest that a son acquires is equal to that of his father . He does not acquire his title through his father, but separately and independently of his father. He has no independent dominion over the property.” (Emphasis supplied). 27. In Mulla, - Principles of Hindu Law, 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 member of that family, whilst it remains undivided, 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 of 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 S. 235. The rights of each coparcener until a partition takes place consists in a common possession and common enjoyment of the coparcenary property. 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 S. 235. The rights of each coparcener until a partition takes place consists in a common possession and common enjoyment of the coparcenary property. As observed by the Privy Council in Katama Natchiar v. The Rajah of Shivagunga , “There is community of interest and unity of possession between all the members of the family, and upon the death of any one of the them the others may well take by survivorship that in which they had during the deceaseds lifetime a common interest and a common possession.” (Emphasis supplied) 28. In Maynes ‘Hindu Law & Usage’ - 14th Edition (1996) Chapter 12 deals with ‘The joint family’. In Section 280 at page 610, the learned author says thus:— “Apart from what is provided in the Hindu Womens Rights to Property Act, 1937, there is in the Mitakshara law no such thing as succession, properly so called, in an undivided Hindu Family. A Hindu joint family consists of males and females; daughters born in the family are members of it till their marriage and women married into the family are equally members of the joint family. The whole body of such a family, consisting of males and females, constitutes a sort of corporation, some of the members of which are coparceners, that is, persons who on partition, would be entitled to demand a share, while others are only entitled to maintenance.” Learned author further says thus:— “Each person is merely entitled to reside and be maintained in the family house; when he dies, his claim ceases, and as others are born, their claims arise. But the claim of each springs from the mere fact of his entrance into the family, not from his taking the place of any particular individual. Deaths may enlarge the beneficial interest of the survivors, by diminishing the number who have a claim upon the common fund, just as births may diminish their interests by increasing the number of claimants. But although the fact that A is the son of B introduce into the family, it does not give him any definite share of the property, for B himself has none. But although the fact that A is the son of B introduce into the family, it does not give him any definite share of the property, for B himself has none. Nor upon the death of B does he succeed to anything, for B has left nothing behind to do so, the joint family property continues to devolve upon the members of the family for the time being by survivorship, and, not by succession”. Learned author further says as to what is meant by ‘Survivorship’. The relevant portion at page 611 reads thus:— “.According to the true notion of an undivided family in Hindu law, no individual member of that family, whilst it remains undivided, can predicate of the joint and undivided property, that he, that particular member, has a certain “definite share”. He has an interest in the coparcenary and on his death this interest lapses to the coparcenary; it passes by survivorship to the other coparceners. He, therefore, has no power to devise it by will, nor is there any question of succession to it. In no part of the coparcenary property has he left an ‘estate’ of his own. The right of survivorship rests upon the text of Narada and is recognised in the Mitakshara. Narada says: “If among several brothers, one childless should die or become a religious ascetic, the others shall divide his property, excepting the stridhana”. In other words, survivorship consists in the exclusion of the widows and other heirs of the coparcener from succeeding to his undivided interest in the coparcenary property. Even a disqualified person is a member of the coparcenary and even though he has no right at a family partition, he is entitled, when he becomes the last surviving male member of the joint family, to take and enjoy the whole estate by survivorship . ..” 29. In “Hindu Law” by S.V. Gupte, Volume 1 Third Edition (1981), at page 162, the learned author deals with the rights of a coparcener. He says thus: “Until partition, a coparcener is entitled to- (1) joint possession and enjoyment of joint family property,. (2) the right to take the joint family property by survivorship, and (3) the right to demand partition of the joint family property”. At page 164, the learned author deals with the right of survivorship. He says thus: “Until partition, a coparcener is entitled to- (1) joint possession and enjoyment of joint family property,. (2) the right to take the joint family property by survivorship, and (3) the right to demand partition of the joint family property”. At page 164, the learned author deals with the right of survivorship. He says:— “while the family remains joint, its property continues to devolve upon the coparceners for the time being by survivorship and not by succession. Consequently, on the death of a coparcener the surviving coparceners take his undivided interest in the joint family property by survivorship. “There is community of interest and unity of possession between all the members of the family, and upon the death of any one of them, the others may well take by survivorship that in which they had during the deceaseds lifetime a common interest and a common possession”. The learned author further says:— “A coparcener who is disqualified by reason of a disability (such as insanity) from taking a share on partition may nevertheless take the whole property by survivorship.” At page 165, the learned author has further said thus:— “By survivorship a coparcener does not obtain the share of a deceased coparcener as his representative; strictly speaking it does not pass to him; the effect is merely to enlarge his share in what he already owns in the aggregate. Surviving coparceners are not therefore the legal representatives of a deceased coparcener”. 30. Derrett, in “Introduction to Modern Hindu Law”, deals with the rights of coparcener. Art. 408 (at pages 250 and 251) of that text says thus:— “No individual member of the coparcenary can claim before partition (in which he participates) that he owns a certain definite share either of the corpus or of its income. The rights of a coparcener are (i) to be maintained; ii) to demand partition and on account of the state of the family property; (iii) to become manager if the managership is vacant and no coparcener electively objects; (iv) to alienate (in South India only) in effect his undivided interest in the joint-family property; and (v) to take, so long as he remains undivided, by survivorship so much of the interests of deceased coparceners as will serve proportionately to increase his presumptive share, which will become ascertained for the first time at partition. Thus coparceners have a community of interest and of possession of the joint-family property and are comparable with joint-tenants at English law with benefit of survivorship, save that their individual rights commence independently and by operation of law, not by transfer between parties. No one can create a coparcenary interest, and more than he can create, with a stranger, a joint Hindu family. He can, no doubt, provide in, for example, a will that property over which he exercises a right of disposition shall be enjoyed by the transferees as if it were Mitakshara joint-family property and they were coparceners at Hindu law in respect of it; but that is a different matter”. 31. In N.R. Raghavachariars “Hindu Law-Principles and Precedents” - 8th Edition (1987), at page 230 under the heading ‘Rights of Coparceners’, it is said thus:— “The following are the rights of a coparcener: (1) Right by birth, (2) Right by survivorship. (3) Right to partition, 4) Right to joint possession and enjoyment (5) Right to restrain unauthorised acts. (6) Right 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 grandsons 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 or 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 by succession to his own heir. Where a coparcener dies without male issue his interest in the joint family property passes to the other coparceners by survivorship and not by 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 share in partition in his family, yet where all the other coparceners die and he becomes the sole surviving member of the coparcenary, he takes the whole joint family property by survivorship, and becomes a fresh stock of descent to the exclusion of the daughter of the last pre-deceased coparcener, a case of leprosy of the last surviving coparcener. The beneficial interest of each coparcener is liable to fluctuation, increasing by the death of another coparcener and decreasing by the birth of a new coparcener. ..” 32. In AIR 1969 S.C. 1330 ( State Bank of India v. Ghamandi Ram ) in paragraph 7 (at page 1333), it was held thus: “According to the Mitakshara School of Hindu Law all the property of a Hindu joint family is held in collective ownership by all the coparceners in a quasi corporate capacity. The textual authority of the Mitakshara lays down in express terms that the joint family property is held in trust for the joint family members then living and thereafter to be born (See Mitakshara, Chapter I, 1-27). The incidents of coparcenership under the Mitakshara law are; first, the lineal male descendants of a person upto t he third generation, acquire on birth ownership in the ancestral properties of such person; secondly that such descendants can at any time work out their rights by asking for partition; thirdly, that till partition each member has got ownership extending over the entire property conjointly with the rest; fourthly, that as a result of such co-ownership the possession and enjoyment of the properties is common; fifthly that no alienation of the property is possible unless it be for necessity, without the concurrence of the coparceners, and sixthly, that the interest of a deceased member lapses on his death to the survivors. A coparcenary under the Mitakshara School is a creature of law and cannot arise by act of parties except in so far that on adoption the adopted son becomes a co-parcener with his adoptive father as regards the ancestral properties of the latter. In Sudarsanam Maistri v. Narasimhulu Maistri , (1902)ILR 25 Mad, 149 at p. 154. Mr. Justice Bhasyham Ayyangar stated the legal position thus:— “The Mitashara doctrine of joint family property is founded upon the existence of an undivided family, as a corporate body ( Gan Savant Bal Savant v. Narayan Dhond Savant . (1883) ILR 7 Bom. 467 and Maynes ‘Hindu Law and Usage’, 6th Edition, paragraph 270) and the possession of property by such corporate body. The first requisite therefore is the family unit; and the possession by it of property is the second requisite. For the present purpose, female members of the family may be left out of consideration and the conception of a Hindu family is a common male ancestor with his lineal descendants in the male line, and so long as that family is in its normal condition viz. , the undivided state-it forms a corporate body. Such corporate body, with its heritage, is purely a creature of law and cant be created by act of parties, save in so far that, by adoption, a stranger may be afflicted as a member of that corporate family.” Adverting to the nature of the property owned by such a family the learned Judge proceeded to state: “As regards the property of such family the ‘unobstructed heritage’ devolving on such family, with its accretions, is owned by the family, as a corporate body, and one or more branches of that family, each forming a corporate body within a larger corporate body, may possess separate, ‘unobstructed heritage’ which, with its accretions, may be exclusively owned by such branch as a corporate body”. 33. In (1985) 2 SCC 321 = 98 L.W. 745 ( State of Maharashtra v. Narayan Rao Sham Rao Deshmukh and others ), it is said thus:— “While under the Mitakshara Hindu Law there is community of ownership and unity of possession of joint family property with all the members of the coparcenary, in a coparcenary governed by the Dayabhaga law, every coparcener takes a defined share in the property and he is the owner of that share. But there is unity of possession. . But there is unity of possession. . ..” It was held in that case thus:— “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”. 34. In (1987) 3 SCC 294 = 100 L.W. 1125 ( Thamma Venkata Subbamma v. Thamma Rattamma and others), in paragraph 7, their Lordships said thus:— “The essence of a coparcenary under the Mitakshara School of Hindu Law is community of interest and unity of possession. A member of joint Hindu family has no definite share in the coparcenary property, but he has an undivided interest in the property which is liable to be enlarged by deaths and diminished by births in the family. An interest in the Coparcenary property accrues to a son from the date of his birth. His interest will be equal to that of his father.” 35. In (1988) 2 SCC 77 ( Sunil Kumar & another v. Ram Parkash & others ) their Lordships followed the earlier decision of the Supreme Court reported in AIR 1962 SC 287 ( Bhagwan Dayal v. Mst. Reoti Devi ) which has also been taken note of in the decision reported in AIR 1969 SC 1330 (supra). 36. From this settled position of law, it is clear that a coparcener like the first defendant in this case is not claiming as an heir to his father. But his right is based on survivorship. Till the property is partitioned, even the deceased cannot say that he is entitled to a definite share and he also cannot identify that such and such property belongs to him. On his death, nothing passed to the appellant so as to claim as his legal heir. In this connection, apart from the definition of ‘heir’ under the H indu Succession Act, the decision reported in (1979) 3 SCC 273 ( N. Krishnammalv. R. Ekambaram and others ) is of much use. In that case, their Lordships held that “the word” “heirs” cannot normally be limited to “issues” only. It must mean all persons who are entitled to the property of another under the law of inheritance’. R. Ekambaram and others ) is of much use. In that case, their Lordships held that “the word” “heirs” cannot normally be limited to “issues” only. It must mean all persons who are entitled to the property of another under the law of inheritance’. Only if the first defendant claims as heir and having inherited the estate of the deceased, the question whether he is succeeding to the property or whether the provisions of Hindu Succession Act will apply, arises for consideration. If the parties are governed by Hindu Mitakshara Law, and the property also belongs to the family on the basis of main provision of Sec. 6 of the Hindu Succession Act, all the provisions of the Hindu Succession Act are excluded, except in cases governed by the Proviso. 37. The decisions of the Supreme Court as well as this Court are clear on the points referred to above. In the decision reported in 1957(3) Weekly Law Reports page 293 ( Attorney-General of Ceylon v. AR. Arunachala Chettiar and others ), the Privy Council has also taken the same view. That is a case under the Estate Duty Act by a citizen of Ceylon who was governed by Hindu Mitakshara Law. The father and son were the only members of a coparcenary of which the son died. The question was, whether the father is liable for estate duty and what was the interest that passed on the father after the death of the son. Of course, their Lordships were interpreting the words under the Estate Duty Act, namely, ‘share’, ‘property passing’ ‘competent to dispose’, ‘ceasing on his death’, etc. While interpreting those words, their Lordships discussed the Hindu Mitakshara Law. At Page 302, their Lordships of the Privy Council said thus:— “It is clear then that two elements must coincide. There must be not only a cesser of interest in property; there must also be a benefit arising by such cesser. And further, the benefit must be capable of valuation by reference to the income of the property which the deceased had enjoyed. The brief exposition already given of the law of the Hindu undivided family is sufficient to show how inept is the language of the Ordinance to embrace the case of the death of a coparcener. And further, the benefit must be capable of valuation by reference to the income of the property which the deceased had enjoyed. The brief exposition already given of the law of the Hindu undivided family is sufficient to show how inept is the language of the Ordinance to embrace the case of the death of a coparcener. Their Lordships are so fully in agreement with what was said by Gratiaen, J. in the Supreme Court that they quote and adopt his words: “He (the deceased) merely had a right to be maintained by the karta out of the common fund to an extent which was at the kartas absolute discretion; in addition he could, if excluded entirely from the benefits of joint enjoyment, have taken appropriate proceedings against the karta to ensure a recognition of his future maintenance rights and also to obtain compensation for his earlier exclusion. I find it impossible to conceive of a basis of valuation which, in relation to such an ‘interest’ would conform to the scheme prescribed by Section 17(6). Nor do I think that, upon a cesser of that so-called ‘Interest’ a ‘benefit’ of any value can be said to have accrued to the surviving “Coparcener” when the deceaseds ‘interest’ lapsed. This reasoning appears to their Lordships to be cogent and conclusive. Counsel for the appellant sought a way of escape by urging that at least the surviving coparcener must benefit by the fact that the deceased could no longer claim partition of the family estate. That might or might not be an advantage for him, but the short answer is that it is not a benefit susceptible of valuation in the only way which the Ordinance prescribes”. In an earlier portion of the judgment, their Lordships approved the statement of law as pointed out in Mullas ‘Principles of Hindu Law’ and Maynes ‘Hindu Law and Usage’ and also the decision reported in Appoovier v. Rama Subba Aiyan (1866) 11 Moo. I.A. 75 and also Katama Natchier v. Rajah of Shivagunga (1864) 9 Moo, I.A. 539). The relevant portion of the Reports reads thus:— “. I.A. 75 and also Katama Natchier v. Rajah of Shivagunga (1864) 9 Moo, I.A. 539). The relevant portion of the Reports reads thus:— “. The numerous passages to which their Lordships were referred in Mullas Principles of Hindu Law and Maynes Hindu Law and Usage illustrate and expand the statement made by Lords Westbury in delivering the opinion of this Board in Appovier v. Rama Subba Aiyan : “According to the true notion of an undivided family in Hindu law, no individual member of that family, whilst it remains undivided, can predicate of the joint and undivided property, that he, that particular member, has a certain definite share”. A little earlier in Katama Natchier v. Rajah of Shivagunga, Turner L.J. had referred to the property as the “common property of a united family”. “There is”, he said, ‘community of interest and unity of possession between all the (coparceners), members of the family, and upon the death of any one of them the others may well take by survivorship that in which they had during the deceaseds lifetime a common interest and a common possession”. 37. Learned counsel for the respondent/plaintiff submitted that his clients claim can be supported on the basis of Proviso to Section 6 of the Hindu Succession Act. If that be so, on a reading of Sections 25 and 27 together, plaintiff will be entitled to a decree. The said argument also cannot be accepted. As decided in the judgment of the Privy Council cited supra, in which also there were only two coparceners, their Lordships held that the surviving coparcener is not getting any benefit or advantage by the death of one of the coparceners. There was a common interest and common possession. Even though it was a single member coparcenary, that possession and interest still continue as an undivided and joint property, which is likely to become a multimember family property. The property still continues to be a common property of a Hindu Family with unity of possession between the members of the family. If the dead man cannot say that he is entitled to a particular right in the property till a partition, plaintiff in this case also cannot say that she is entitled to get half right in the property, for, what she claims is only right of the deceased victim. 38. If the dead man cannot say that he is entitled to a particular right in the property till a partition, plaintiff in this case also cannot say that she is entitled to get half right in the property, for, what she claims is only right of the deceased victim. 38. We also cannot read Sections 25 and 27 of the Act in isolation. It is also a Rule of Succession that a murderer will be disqualified from inheriting the property. As per those Sections, the disqualified son of heir shall be deemed to have died intestate. That is only for the purpose of succession. If no question of succession arises, there cannot be any question of a disqualified heir, nor can there be any question of disqualification under the Succession Act. When I state that it is not a disqualification under the Succession Act, it should not be understood that under general Hindu Law, there is no other disqualification. If Succession Act will not apply, plaintiff who claims to be a widow of a pre-deceased son, also will not qualify to claim partition. The fiction under Sec. 27 of the Hindu Succession Act applies only if the murderer is claiming under the deceased victim. All these claims can be made only if it is found that first defendant has a right under his father. The fiction provided under Sec. 27 of the Act should not be enlarged for any other purpose. 39. When we read Sec. 25 of the Hindu Succession Act, an inference could be drawn that the murder is committed with a motive, i.e. if it is intended to accelerate the law of succession, the murderer is disqualified. 40. In ‘Modern Hindu Law’ by Ramesh Chandra Nagpal, 1983 Edition, at page 742, commenting on Sec. 25, learned author says thus:— “Here the motive of the heir guilty of murder or of abetment thereof is a relevant factor for disqualifying him from succession. If it was to further or accelerate the succession to the heritable property, then only there is deprivation of inheritance. It is submitted that the phrase ‘in furtherance of the succession to which’ qualifies both kinds of properties analysed above. If the Act lacked this mens rea it will not disqualify”. Emphasis Supplied. If it was to further or accelerate the succession to the heritable property, then only there is deprivation of inheritance. It is submitted that the phrase ‘in furtherance of the succession to which’ qualifies both kinds of properties analysed above. If the Act lacked this mens rea it will not disqualify”. Emphasis Supplied. Even though the learned author Nagpal has said so, on this point I find a difference in the opinion expressed by S.V. Gupte in his Commentaries to Hindu Law. In his book Hindu Law-3rd Edition-Volume 2 (1981 Edition), the learned author has said thus at page 548:— “The second part of this section namely ‘or any other property in furtherance of the succession to which he or she committed or abetted the commission of the murder’ is a new provision. The distinction between the first part and this part of the section seems to be two fold; under the first part the person to be disqualified is the immediate heir of the person murdered; he is disqualified from inheriting the property of the murdered; under the first part the object or motive of murdering the intestate seems to be immaterial; it may not necessarily have been to obtain the “property of the deceased. The latter part however covers the property of some person other than the murdered and the object or motive of committing the murder or abetment thereof must be the furtherance of acceleration of the succession. .. ..” And finally, the learned author has said thus: “. The motive or object of murder is therefore very material under the second part of this section”. Even if the motive is irrelevant, so far as this case is concerned, that is not going to change the result, since the first defendant is not claiming any right on succession, nor is he getting any advantage on the death of his father as known to Hindu Mitakshara Law. 41. According to me, the above finding will be sufficient to dismiss the suit. In this case, I am not expected to declare or enter a finding whether the first defendant is entitled to any right over the property, for, he is in possession of the property through his tenant. Defendant and his tenant are liable to be dispossessed only by a person who has got a better title. In this case, I am not expected to declare or enter a finding whether the first defendant is entitled to any right over the property, for, he is in possession of the property through his tenant. Defendant and his tenant are liable to be dispossessed only by a person who has got a better title. If the plaintiff cannot claim a better title, the question of dispossession or partition will not arise. She could not be treated as a co-owner with the first defendant to enable her to get a partition. 42. But, learned counsel for plaintiff/respondent argued that even if the Hindu Succession Act will not apply, under the Pristine Hindu Law, first defendant will not have any right and he is non-existent, and it is only that law that is incorporated under the Hindu Succession Act. According to learned counsel, even applying that principle, she will be entitled to a right. How far the said contention could be accepted is to be considered. 43. Various other decisions are also necessary to be considered to answer this point. Two earlier decisions of the Lahore High Court may usefully be referred to. They are (1) AIR 1922 Lahore 243 ( Har Bhagwan & others v. Hukam Singh and another ) and (2) AIR 1922 Lahore 293 (Mt. Jind Kuar and others) v. Indar Singh and others ). 44. In AIR 1922 Lahore 243 (supra), their Lordships held thus:— “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. It is generally recognised that the exclusion of the murderer is not based on the principles of either Hindu, Mohammadan or Customary Law, but on public policy and justice and it is from this stand-point rather than that of the personal law of the parties that the question is to be approached”. It is generally recognised that the exclusion of the murderer is not based on the principles of either Hindu, Mohammadan or Customary Law, but on public policy and justice and it is from this stand-point rather than that of the personal law of the parties that the question is to be approached”. In the latter decision (of the Lahore High Court cited supra), it was held thus:— “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 murderers 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..” It may be stated that in both these cases, their Lordships were following an earlier decision of this Court reported in ILR 27 Madras 591 (Vedanayaga Mudaliar v. Vedammal). The said decision came for consideration before the Bombay High Court in the decision reported in ILR 45 Bombay 768 (Girimalappa Channappa v. Kenchava ). The Bombay High Court accepted the principle enunciated in Vedanayaga Mudaliar v. Vedammal to the extent that public policy disqualifies a person from inheriting the property of a murderer, and it is not the principle of the Hindu Law. Their Lordships said that it is a matter of universal application that no man shall take advantage of his own wrong. But their Lordships distinguished the decision followed in Vedanayaga Mudaliars case, in the sense that this Court accepted the principle of equitable and legal estates. Their Lordships of this Court have held that the murderer is entitled to be in possession for the benefit of the beneficial owner as a Trustee. The Bombay High Court held that this principle is not known to Hindu Law. The judgment of the Bombay High Court came on appeal before the Privy Council, and the decision is reported in A.I.R. 1924 Privy Council 209 ( Kenchava v. Girimallappa ). The Bombay High Court held that this principle is not known to Hindu Law. The judgment of the Bombay High Court came on appeal before the Privy Council, and the decision is reported in A.I.R. 1924 Privy Council 209 ( Kenchava v. Girimallappa ). Their Lordships took note of the trial Court judgment as well as the High Court of Bombay wherein it was decided as follows:— “As to the first two questions the Subordinate Judge held that the matter was provided for by Hindu law, and that this law disqualified a murderer from succeeding to an estate, the succession to which he had accelerated by killing the woman who had a previous interest during her life. But in compliance, as he considered, with a decision of the High Court of Madras, he held that nevertheless the murderer did take the legal estate, though he was disqualified from having any beneficial interest. He further held that this disqualification was not confined to a personal disqualification of the murderer, but wiped him out from the line of descent, so that the heirship to the propositus Parappa is to be traced directly and not through him. The High Court came to the same conclusions, that is to say, that the murderer had no title, and that the heirship was not to be traced through him, but on a somewhat different line of reasoning. The learned Judges thought that there was no Hindu Law which governed the matter, so that they had to have recourse in obedience to the Bombay Regulation of 1827, No. 4, S. 26, to the principles of equity, justice and good conscience. And while thinking it immaterial whether the murderer had the legal estate vested in him or not because “in either case he 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”, they thought it “simpler to say that the exclusion extends to the legal as well as beneficial estate”. Commenting on this, their Lordships of the Privy Council said: “Before this Board, it has been contended that the matter is governed by Hindu Law, and that the Hindu Law makes no provision disqualifying a murderer from succeeding to the estate of his victim and therefore it must be taken that according to this law he can succeed, and he being alive, the plaintiff has no title..” It is answered by the Privy Council thus:— “Their Lordships do not take this view. There is much to be said for the argument of the Subordinate Judge that the principles of Jurisprudence which can be traced in Hindu Law, would warrant an inference that according to that law a man cannot take advantage of his own wrong, and that if this case had come under consideration by the Hindu sages they would have determined it against the murderer. But it is unnecessary so to decide, because the Hindu law being as above stated or being for this purpose non-existent, and in this latter case the High Court have rightly decided that the principles of equity, justice and good conscience exclude the murderer.” (Emphasis supplied) Their Lordships further held thus:— “In their Lordships view it was rightly held by the two Courts below that the murderer was disqualified; and with regard to the question whether he is disqualified wholly or only as to the beneficial interest which the Subordinate Judge discussed, founding upon the distinction between the beneficial and legal estate which was made by the Subordinate Judge and by the High Court of Madras in the case of Vedanayaga Mudaliar v. Vedammal, Their Lordships reject, as did the High Court here, any such distinction. The theory of legal and equitable estates is no part of Hindu law, and should not be introduced into discussion. “The second question to be decided is whether title can be claimed through the murderer. If this were so, the defendants as the murderers sisters, would take precedence of the plaintiff, his cousin. In this matter also, their Lordships are of opinion that the Courts below were right. The murderer should be treated as non-existent and not as one who forms the stock for fresh line of descent. It may be pointed out that this view was also taken in the Madras case just cited.” (Emphasis supplied) 45. In this matter also, their Lordships are of opinion that the Courts below were right. The murderer should be treated as non-existent and not as one who forms the stock for fresh line of descent. It may be pointed out that this view was also taken in the Madras case just cited.” (Emphasis supplied) 45. In Maynes ‘Hindu Law & Usage’, while dealing with partition in a Hindu Mitakshara family, the learned author has stated as follows (at page 815):— “There can be no doubt that the rule now established that a murderer is disqualified from inheriting as heir must apply equally when he claims to succeed by survirorship, it would seem to follow that he will be equally excluded from any increased share coming to him at the result of his crime.” The learned author seeks support from the decision of the Privy Council cited supra, for giving that reasoning. 46. To the same principle is the decision of a Division Bench of the Bombay High Court reported in A.I.R. 1948 Bombay 111 (Adiveppa Babu v. Veerabhadrappa Baswantappa and another). The relevant portion of the decision at page 112 reads thus:— “.The principal contention is that a murderer suffers from the same sort of disability as a person who is insane or blind, and that a person suffering under any disability as regards succession suffers under the same disability as regards survivorship also. For this latter proposition, I may refer to 8 Cal. 149. That was a case of insanity, but the principle which it enunciates appears to be correct. But the difficulty of accepting learned counsels argument on this point is that so far as we are aware there is no principle upon “which any disability arising by reason of murder can be on the same footing as a disability arising from insanity or blindness or the other absolute disabilities dealt with in the Hindu law. The disability arising against a murderer is not an absolute disability at all. It is only a qualified disability; and even so it does not appear to have any foundation in Hindu law but is grounded upon the rules of justice, equity and good conscience. This was recognised by the Privy Council in 48 Bom. The disability arising against a murderer is not an absolute disability at all. It is only a qualified disability; and even so it does not appear to have any foundation in Hindu law but is grounded upon the rules of justice, equity and good conscience. This was recognised by the Privy Council in 48 Bom. 569 =AIR 1924 P.C. 209 (supra) where their Lordships said (p. 574): “There is much to be said for the argument of the Subordinate Judge that the principles of jurisprudence which can be traced in Hindu law would warrant an inference that according to that law a man cannot take advantage of his own wrong, and that if this case has come under consideration by the Hindu sages they would have determined it against the murderer. .” After quoting the passage as above, their Lordships have emphasised thus:— “We may therefore take it that the rules of justice, equity and good conscience exclude a murderer from taking “any share either by inheritance or by survivorship in the estate of the person whom he has murdered; and the same disability would apply to a son, whether genetive or adopted.” (Emphasis supplied) Their Lordships thereafter held that in the light of the facts of that case, plaintiff was not claiming through the murderer, but in his own independent capacity. Therefore, the decree granted by the trial court was confirmed. 47. In another decision of the Allahabad High Court reported in A.I.R. 1956 Allahabad 707 ( Mata Badal Singh v. Bijay Bahadur Singh and others ), their Lordships held thus:— “Where however the sons of the murderer claim the property of the victim who is the last male owner, in their own right as his gotraja-sapinda and not through their father, they cannot be debarred from inheriting the estate simply because they happen to be the sons of the murderer. The test of disqualification is not relationship but whether the title is traced through the murderer.” (Emphasis supplied) In the above said decision, the Bench of the Allahabad High Court has followed a decision of our High Court reported in AIR 1942 Madras 277 (K. Stanumurthiayya and others v. K. Ramappa and others), wherein a learned Judge of this Court has held thus:— “Under the Hindu law a murderer cannot succeed as heir of the person whom he murdered nor can title be claimed through the murderer. The murderer should be treated as non-existent and not as one who forms the stock for a fresh line of descent. The inheritance vests in those who would be entitled to it were the guilty heir out of the way. The test of disqualification is not relationship but whether the title is traced through the murderer.” (Emphasis supplied) In that case, the daughter murdered her mother, who happened to be the widow of a last male-holder of a Hindu family. Daughters son claimed the right of inheritance through his grandfather. It was held thus:— “..Though they are related to the murderess they do not trace their title through her. Their mother should be treated as non-existent and further she could never become a fresh stock of descent.” 48. Various other decisions were also cited by learned counsel for the appellant to urge that there is no disqualification to take the property as a coparcener, if that coparcener becomes the last sole surviving member. All those cases dealt with cases of disqualification as provided under the Hindu Law, i.e. , deaf and dumb, blindness, etc. 49. In this case, we are not concerned with a disqualification not provided under the Hindu Law, but with the principle of public policy. One of the decisions of the Supreme Court on this aspect is reported in AIR 1965 SC 1349 ( Kamalammal and others v. Venkatalakshmi Ammal ). A disqualification on the basis of justice, equity, good conscience and public policy cannot be equated with other disqualifications. So, I do not think, it will be appropriate to follow those decisions and hold that the first defendant is entitled to hold the property as a sole a surviving coparcener. In view of the decisions of the Bombay, Allahabad High Courts and also the divisions of this Court, I only hold that the plaintiff, whose claim is based only as widow of the first defendant, cannot be sustained, and she cannot maintain this suit as if the first defendant, were dead. 50. As stated earlier, I am not deciding the question as regards the right of the first defendant and also regarding the question whether he is entitled to hold the property. 51. I have already said that murder is not a disqualification under Hindu Law. But that disqualification is based on the principle that no man can take advantage of his own wrong. 51. I have already said that murder is not a disqualification under Hindu Law. But that disqualification is based on the principle that no man can take advantage of his own wrong. The principle of justice, equity and good conscience is applied to all persons irrespective of the community to which they belong. In this connection, let us see what is meant by ‘justice, equity and good conscience’. 52. In A.I.R. 1923 Calcutta 538 ( Bireswar Ghosh v. Panchoouri Ghosh ), their Lordships said thus:— (at page 545) “..Now, the decision of a case according to the principles of justice, equity and good conscience has generally meant decision according to the principles of English Law applicable to a similar state of circumstances. This was justified in Dada v. Babaji mentioned by Jenkins, C.J., in Shivrao v. Pundlik on the authority of the judgment of the Judicial Committee in Varden Seth v. Lackpathy but is doubtful whether the Judicial Committee really intended to enunciate the comprehensive rule attributed to their decision. Lord Hobhouse, however, in the later case of Waghela v. Masludlin stated that equity and good conscience had been generally interpreted to mean the rules of English law if found applicable to Indian society and circumstances. See also Maharaja of Vizianagnam v. Raja Setru Cherla , Meenakshi v. Rama Iyer , Govindan Nair v. Achutha Menon , Kripasindhu v. Annada Sundari , Gurdeo v. Chandrika. In this connection, reference may be made to the “observation of Sir Barnes Peacock, C.J., In Rambaksh v. Madhusudan that where rights of parties are determined according to the general principles of equity and justice, this must be done without any distinction, as in England between that partial justice which is administered in the Courts of Law and the more full and complete justice for which it is frequently necessary to seek the assistance of a Court of Equity. This was adopted by Jenkins, C.J., in Debnarain v. Ramanadhan, see also the observation of Peacock, C.J., in Khemamoyi v. Soshi Bhusan. This was adopted by Jenkins, C.J., in Debnarain v. Ramanadhan, see also the observation of Peacock, C.J., in Khemamoyi v. Soshi Bhusan. In these circumstances, it is not surprising to find that whereas in the present instance, there is no statutory provision directly conclusive on the question of the rights and liabilities of the parties, only justice, equity and good conscience which, Judges steeped in the principles of English Jurisprudence can and do administer, in default of any other rule, is so much of English law and usage as seem reasonably applicable in this country; Satis Chunder v. Ramdayal.” 53. What is the English Law on this aspect is stated by J. Duncan M. Derrett in ‘Essays in Classical and Modern Hindu Law’-Volume Three (Anglo-Hindu Legal Problems). In that Volume, the learned author has written an article ‘The Slayers Bounty’. It is really a comment on Section 25 of the Hindu Succession Act. The English, American and Japanese Laws are considered in that article. While considering the English Law, the learned author has said thus:— “We are now in a position to review the Common Law rules on this subject. The matter does not seem to have been dealt with in England before 1892, when the Court of Appeal decided Cleaver v. Mutual Reserve Fund Life Association, which was a case that did not directly concern a disqualification but rather the possibility that an insurance company could escape liability on a life policy issued by it if the beneficiary were the insureds felonious killer. Lord Esher, M.R. said: “That the person who commits murder, or any person claiming under him or her should be allowed to benefit by his or her criminal act, would no doubt be contrary to public policy. But this doctrine ought not to be stretched beyond what is necessary for the protection of the public.” On account of her crime, he said, the wife had rendered the trust in her favour incapable of performance. “It must, therefore, be treated as if it did not exist.” It would have been an injustice to deprive the children of the insured, who did not claim through their mother, the slayer, of the benefits of the policy, Fry, L.R. said, The principle of public policy invoked is in my opinion rightly asserted. “It must, therefore, be treated as if it did not exist.” It would have been an injustice to deprive the children of the insured, who did not claim through their mother, the slayer, of the benefits of the policy, Fry, L.R. said, The principle of public policy invoked is in my opinion rightly asserted. It appears to me that no system of jurisprudence can with reason include amongst the rights which it enforces rights directly resulting to the person asserting them from the crime of that person.” He went on, “This principle of public policy, like all such principles, must be applied in all cases to which it can be applied without reference to the particular character of the right asserted or the form of its assertion.” And further, “It would equally apply, it appears to me, to the case of a cestuique trust asserting a right as such by reason of the murder of the prior tenant for life or of the insured in a policy; and it must be so far regarded in the construction of Acts of Parliament that general words which might include cases obnoxious to this principle must be read and construed as subject to it. ..In a word. I think that the rule of public policy should be applied so as to exclude from benefit the criminal and all claiming under her, but not so as to exclude alternative or independent rights.” Lopes L.J. said, “The trust in favour of the wife, must then be regarded as struck out. ..” This case, and in particular Lord Justice Frys dicta, have been repeatedly referred to in subsequent cases.” (Emphasis supplied) In the same Article, the learned author has discussed the position in India, and has said thus:— “The position in India was not entirely satisfactory when the Hindu Succession Act, 1956, was passed. ..” This case, and in particular Lord Justice Frys dicta, have been repeatedly referred to in subsequent cases.” (Emphasis supplied) In the same Article, the learned author has discussed the position in India, and has said thus:— “The position in India was not entirely satisfactory when the Hindu Succession Act, 1956, was passed. Persons who had a claim to the estate independently of the slayer were permitted to inherit, notwithstanding that they were related to the victim through the slayer, and this seems to be correct; but in the unfortunately common situation where a coparcener at Mitaksara law (who is a co-tenant with right of survivorship) killed another coparcener, the Court, albeit declaring that the murderer cannot take by survivorship, made clear its view that one who drew his title not from the victim but from someone else could not be deprived of the property by reason of his crime, since public policy does not extend to depriving either the murderer or his representative of property to which he would have been entitled whether the crime had been committed or not.” 54. If the principle of justice, equity and good conscience is applied, i.e. , the English Law, naturally, plaintiff who claims through the slayer, cannot claim any right. The disqualification which the plaintiff alleges against her husband, equally applies to her also. 55. In fine, I summarise my findings thus:— Plaintiff cannot claim as widow of the predeceased son of Ramasami Konar, one half-share in the property. Being a coparcenary property, the main provision of Section 6 of the Hindu Succession Act will apply. Even the first defendant cannot claim that he is entitled to claim half right so long as the victim and the murderer (first defendant) have not divided themselves. First defendant, under the Hindu Law, cannot be said to have inherited any share from the victim (his father). Plaintiff can claim as 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 died before the victim (his father) also will not apply and, therefore, she cannot be a widow of his pre-deceased son. In that view, the Proviso to Section 6 of the Hindu Succession Act also will have no application. In this case, the principle of justice, equity and good conscience alone will apply. In that view, the Proviso to Section 6 of the Hindu Succession Act also will have no application. In this case, the principle of justice, equity and good conscience alone will apply. If that be so, first defendant cannot be treated as a fresh stock of descent, and he can be treated only as non-existent. If he never existed, it cannot be said that he pre-deceased the victim. Naturally, plaintiff also cannot claim as his widow. If the claim is based only as a widow, the disqualification attached to the first defendant equally applies to her, for, she cannot claim under the murderer. 56. In the result, the latter portion of substantial question of law No. 1 and question No. 2 are found in favour of the appellant. The judgments and decrees of the Courts below are set aside, and the suit is dismissed. The Second Appeal is allowed, however, without any order as to costs.