Murder of testator of the Will by the plaintiff.

The plaintiff is the appellant. The suit is for declaration of title and for injunction restraining the defendants from interfering with the plaintiff’s possession and enjoyment. The case of the plaintiff is that one Peramiah Gounder, the father of the defendants 1 to 3 and the maternal grandfather of the 4th defendant, was the owner of the suit property and also of other property, and that he executed his last will on 19th September, 1960, in respect of those properties. Under the will the plaintiff is entitled to the suit property and the defendants are entitled to the other property. The plaintiff is the grandson of the elder brother of Peramiah Gounder, The 4th defendant is the plaintiff’s wife and the third defendant’s daughter, Peramiah Gounder was murdered on 11th January, 1964, and the plaintiff was implicated in the said murder. The plaintiff has filed the present suit by his father and power of attorney agent for the reliefs mentioned above.

2. The first defendant filed a written statement contending that the will dated 19th September, 1960, cannot be relied on as he murdered Peramiah Gounder, and that the plaintiff is not entitled to the suit property.

3. The trial Court referred to the judgment in S.C. No. 58 of 1964, on the file of the Sessions Judge, Coimbatore, dated 24th August, 1964 and held that the plaintiff was convicted and sentenced to death for committing the murder of Peramiah Gounder. It was also made out that the said conviction was cofirmed by the Supreme Court. But on a mercy petition presented by the plaintiff, the President of India has commuted the sentence of death to one of imprisonment for life. In the trial Court it was contended by the defendants that sections 25 and 27 of the Hindu Succession Act disqualified the plaintiff from inheriting the property of Peramiah Gounder as he murdered Peramiah Gounder. On the other hand, the plaintiff contended that the aforesaid disqualification will apply to inheritance and not to testamentary succession. The trial Court upheld the contention of the defendants and dismissed the plaintiff’s suit. The decision of the trial Court was confirmed in A.S. No. 271 of 1966 by the learned Subordinate Judge of Erode. This second appeal has been filed by the plaintiff.

4. It is contended on behalf of the appellant that the fact that the appellant is a murderer or participated in the crime of murder was not made out. Apart from the evidence adduced, the confessional statement dated 15th January, 1964, Exhibit B-2 given by the plaintiff to the police admitting the guilt of murdering Peramiah Gounder was exhibited. The contention is that the judgment of the learned Sessions Judge in the sessions case, Exhibit B-1 will be admissible in evidence only to show that the plaintiff was convicted for the murder and was sentenced to death, and that unless aliunde proof that the plaintiff murdered Peramiah Gounder has been furnished, it cannot be concluded that the plaintiff is the murderer or had participated in the crime of murder. The contention so stated is correct. It is true that in Exhibit B-2, the confessional statement, the plaintiff admitted the guilt. But the person to whom the confession was made, had not been examined. In this view Exhibit B-2 may be inadmissible. But three witnesses had been examined on the side of the defendants to establish that the plaintiff is the murderer or that he participated in the crime of murder. D.W. 1 is the husband of the second defendant who had spoken to the details relating to the conviction. But he was not an eye-witness to the occurrence. D.W. 2, one of the prosecution witnesses in the murder case, deposed that the plaintiff, himself and others went to murder Peramiah Gounder who was then sleeping with his concubine, that while he came out on the way before the murder took place, others including the plaintiff remained in the place of crime, and that subsequently, the murder of Peramiah Gounder took place. D.W. 3 is the v