A murderer is disqualified from succeeding as heir, and the test of disqualification is not relationship but whether the title is traced through the murderer.

Venkataramana Rao, J.

1. The question for decision in this second appeal lies in a narrow compass. One K. Narayanayya was the last male owner of the property involved in the suit out of which this appeal arises. He died leaving him surviving his widow Nagamma and a daughter Lakshmi. Nagamma was murdered on 27--9--1928 by her daughter Lakshmi and her son-in-law. Defendants 1 to 5 are the sons of Lakshmi and defendants 6 to 13 are the lessees under Nagamma in respect of the suit property. The plaintiffs are the sons of K. Ramakrishnayya, the deceased divided brother of K. Narayanayya. The question in controversy is whether the plaintiffs are entitled to succeed to the suit property in preference to defendants 1 to 5. The case for the plaintiffs is that as the defendants are the sons of the murderess Lakshmi, they are disentitled to succeed to the suit property and that they as next heirs are entitled to it. The learned District Munsif gave a decree in favour of the plaintiff, but the learned Subordinate Judge reversed this decision.

2. The question,is which view is tenable. It is now settled by the Privy Council that a murderer cannot succeed as heir of the person whom he murdered. This proposition was laid down in Kenchava V. Girimallappa (1024) 47 M.L.J. 401 : 1024 L.R. 51 IndAp 368 : I.L.R 48 Bom. 569 (P.C.) affirming the decision " in Girimallappa Channappa v. Kenchava I.L.R.(1920) 45 Bom 768. After stating that the murderer was disqualified Lord Phillimore, who delivered the judgment of the Board proceeded to state the legal consequence of this doctrine in regard to the devolution of the estate of the murdered man as follows:

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, Ms 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 a fresh line of descent. It may be pointed out that this view was also taken in the Madras case just cited.

The Madras case referred to is Vedanayaga, Mudaliar v. Yedammal (1904)14MLJ297 The, view that the learned Lord was referring to was, I believe, the view expressed at page 601; namely "the beneficial interest in the inheritance vests in those who would be entitled to it were the guilty heir out of the way." In an earlier passage their Lordships pronounced the view expressed by the High Court in Yedanayaga, Mudaliar v. Vedammdl (1904)14MLJ297 that the legal estate might vest in the heir though the beneficial interest would not, as unsound on the ground that the theory of legal and equitable estates is no part of Hindu law, What their Lordships must be deemed to have approved is the view in so far as it states that the inheritance vests in those who would be entitled to it were the guilty heir out of the way without the qualification of the beneficial interest. In the case before the Privy Council, there was a dispute as to who should succeed as heir of the last male owner--the sisters of the murderer,? "who were also the fathers brothers daughters of the last male owner or the fathers sisters son. Their Lordships said that . if the murderer was regarded as the stock for a line of descent, then the sisters would certainly take the estate in preference to the fathers sisters son but as he could not be considered to be a fresh stock of descent and title cannot be traced through him, the sisters could not succeed on that ground. Their Lordships considered however the question that though they were related to him, whether they could not still succeed in their own right, as the fathers brothers daughters of the last owner; and they were held not entitled to succeed on the application of another rule of law, namely, that a male bhandu succeeds in preference to a female bhandu. The principle that is clearly deducible from this decision is