Judgement

Appeal (No. 100 of 1922) from a decree of the High Court (September 1, 1920) varying a decree of the first class Subordinate Judge at Darwar.

The suit was brought by the respondent against the appellants to recover from them possession of properties forming the estate of one Parappa, who died intestate in 1912. Upon the death of Parappa his mother Chanbasava succeeded to the estate. Hanmappa, who was next reversionary heir upon her death in 1914, was convicted of the murder of Chanbasava. The relationship of the parties appears from the judgment of the Judicial Committee.

The trial judge made a decree for the plaintiff for a third of the property ; he held that though the murderer was disqualified from taking the estate beneficially, it vested in him, and that as his heirs the plaintiff and defendants had equal rights.

Upon an appeal to the High Court, with cross-objections, the right of the plaintiff, the present respondent, to the whole estate was decreed.

The learned judges (Macleod C.J. and Fawcett J.) held that Hanmappa was disqualified upon the principles of justice, equity and good conscience, and that as a result of that disqualification the heirs of the intestate, and not the murderers heirs, succeeded. They further held that the respondent as a male bandhu of the intestate was to be preferred to the appellants, female bandhus in the same degree. The appeal is reported at I. L. R. 45 B. 768.

1924. May 12. E. B. Raikes for the appellants. Under Bom. Reg. IV. of 1827, s. 26, the principles of justice, equity and good conscience should have been applied only if no other law was applicable. The matter should have been determined according to Hindu law. The Hindu texts expressly lay down certain disqualifications from inheriting, but this is not one. Analogies of English law should not have been applied Ramchandra Martand Waikar v. Vinayak Kothekar. (( 1914) L. R. 41 I. A. 290, 299.) The English cases do not deal with succession to an intestates estate. Under ss. 61 and 62 of the Indian Penal Code the Court has power to forfeit the property of a person convicted of murder ; there is therefore no room for the application of the principles of public policy. Even if Hanmappa was personally disqualified, the appellants were entitled as his heirs Gangu v. Chandrabhagabai. (( 1907) I. L. R. 32 B. 275, 280.) But if the succession passed to the heirs of the intestate the appellants, as his fathers brothers daughters, according to Hindu law as applied in Bombay, were entitled in preference to the respondent, his fathers sisters son. In Saguna v. Sadashiv (( 1902) I. L. R. 26 B. 710.) the High Court at Bombay distinguished between the law in that Presidency and that laid down in Madras in Narasimma v. Mangammal. (( 1889) I. L. R. 13 M. 10.) In Balkrishna v. Ramkrishna (( 1920) I. L. R. 45 B. 553.) the decision in Saguna v. Sadashiv (( 1902)

I. L. R. 26 B. 710.) was not referred to. The appellants being within the gotra, and the respondents not being so, they were to be preferred, having regard to the doctrines of Hindu law prevailing in Bombay Maynes Hindu Law, paras. 38, 585; Vijiarangum v. Lakshan (( 1871) 8 Bom. H. C. (O. C. J.) 244, 261.) ; Bai Kesserbai v. Hunsraj Mosarji (( 1906) L. R. 33 I. A. 176.); Parot Bapalal Sevakram v. Mehta Harilal Surajram. (( 1894) I. L. R. 19 B. 631.)

The respondent did not appear.

June 19. The judgment of their Lordships was delivered by

LORD PHILLIMORE. This case involves some questions of importance. The parties are all relations, descendants of one Hanmanna. He had three children—a daughter, Basava, whose son Girimallappa Channappa Somasagar is the plaintiff and present respondent; a son Vadakappa who had two daughters, Kenchava and Gangava—who are the defendants and present appellants—and a son Hanmappa—of whom more hereafter. The third child of Hanmanna was another son, Ramanna, since deceased. Ramanna married Chanbasava ; they had no children, but they adopted, as a son, Parappa. H