MINOTI Vs. SUSHIL MOHAN SINGH MALIK

JUDGEMENT

(1.) The plaintiff who is a minor filed the suit through her next friend, maternal grant-mother for a declaration that the money lying in the special savvings Bank Account No.14/1168 with the State Bank of Hyderabad, juhu Branch, Bombay exclusively belongs to her deceased mother as her self-acquired and self-earned separate properly and in view of the provisions of S. 25 of the Hindu succession Act, 1956 daughter alone is entiled to get the said amount.

(2.) It appears to be an admitted position that defenant No.1 sushilkumar was prosectued for an offence punsihable under section 302 of the penal code in sessions case no.196 of 1980 decided on 29th of oct., record the sessions court came to the conclusion that accused sushilkumar used a sharp-edged Revathi. While inflicting the injuries he chose vital part of the body and used considerable force. The sessions court further found that in view of the number of injuries and their location considered together with other factors clearly indicate that accused sushilkumar did the act with intention of causing the death of Revathi,After recording this finding the leraned judge ultimately came to the conculsion that he committed the said act of assault while he was deprived of the power of self-control by grave and sudden provocation given to him by deceassed Revathi. As a result of this finding he was convicted of the offence punihable under s. 304 part I of the I.P.C. and was sentenced to suffer rigorous imprisionment for seven years and to pay a fine of Rs.1000/-or in default to suffer further rigorous imprisonment for six months. In the suit filed on behalf of the minor it was contended that as the defendent No.1 was responsible for committing murder of deceased Revathi, he is not entitled to succeed to the property of decased in view of the provisions of S. 25 of the Hindu sucession Act. In this suit an injunction was also sought against defendant No.1 restraining him from withdfrawing the amount from the Bank. The trial Court framed necessary issues and ultimately came to the conclusion on the strength of the affidavit filed by the guardian and next friend of the plaintiff that money lying in the special saving bank account exculsively belonged to the deceased mother of the plaintiff. He also came to the conclusion that in view of the conviction of defendant No.1 under s. 304 , part I of the I.P.C. he is not disqualified under S. 25 of the hindu Succession Act. So far as the aomount of Rs. 6,800/-is concernd, which according to the plaintiff belonged to her being proceeds of the lottery prizes earned in the lottery tickets purchased in her name and credited in the account in the Bank, the learned Judge held that for that purpose the plantiff will have to pursue a separate remedy as such a declaration cannot be granted in the present suit as framed. In view of these fingings tje ;earned Judge decreed the claim of the plaintiff to the extent of Rs.5831-31 p. Only and also granted leave to the plaintiff to file a fresh suit in respect of the amount of Rs.6,800/-He also granted necessary reliefs including that of permanent injunction to the extent of Rs.5831 -31 p.

(3.) Being aggrived by this judgment and decree the plaintiff has filed the present appeal. Defendant No. 1 has also filed a cross objection challenging the finding recorded against him and has also explained the circumstances under which he remained absent in the trial court and has prayed that the exparte decree should be set aside and he should be given an opportunity to defend the suit on merits. According to him the could not remain present in court because he was detained in jail and the counsel appearing for him remained absent on the date of hearing.